Obama Releases Memos; Promises Impunity; Misunderstands Estoppel by Entrapment

Obama Releases Memos; Promises Impunity; Misunderstands Estoppel by Entrapment

Having criticized Obama somewhat regularly as of late, it’s important to give him partial credit where partial credit is due — he has released the four OLC torture memos with a minimum of redaction.  You can find the memos here.  That could not have been an easy decision, given the CIA’s opposition to having its systematic criminality (further) exposed.

Nevertheless, Obama only deserves partial credit for the decision.  Regrettably, he has also promised impunity for anyone involved in the CIA’s crimes:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

It is revealing, of course, that Obama did not promise impunity for individuals CIA interrogators in particular who reasonably relied on legal advice from the OLC.  As Marty Lederman pointed out before he joined the Obama administration, that is the legal standard:

The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases — Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States — stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

Lederman argued then, and I imagine is still arguing now, that the CIA interrogators should not be prosecuted even if they unreasonably relied on the OLC’s advice.  Not wanting the interrogators to be prosecuted, he had no other choice: he admitted (in the post linked to above) that waterboarding was “patently illegal” i.e., that a CIA interrogator could not reasonably believe that it was lawful to waterboard.

I pointed out at the time that there was no legal justification for watering down American criminal law’s well-established “entrapment by estoppel” defense in the way that Lederman suggested and that Obama has now endorsed.  Here is what I wrote regarding Lederman’s claim that we can infer reasonable reliance from the existence of the OLC’s advice itself (which directly contradicts his insistence that waterboarding is patently illegal):

I think Lederman’s argument misunderstands the nature of “entrapment by estoppel.” Section 2.04 of the Model Penal Code provides a typical formulation of the defense:

[a] belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when… (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in… an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

The MPC formulation makes clear that the reasonableness of reliance cannot simply be inferred from the fact that the erroneous official statement was made by the “public officer or body” charged with interpreting the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense.

Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it.

I then addressed the argument that Obama made today that in order to provide CIA interrogators “with the confidence that they can do their jobs,” we have to promise not to prosecute them even when they unreasonably rely on patently incorrect legal advice by the OLC:

Later in the post, after opining that it may be appropriate to prosecute the authors of the OLC’s erroneous opinions, [Lederman] insists that prosecuting the waterboarders themselves “would be targeting the wrong government actors,” because we “want CIA officers to be able to rely on OLC advice.” No — we want CIA officers to rely on reasonable OLC advice, and we do not want CIA officers to assume that any advice they receive from the OLC or from the President is necessarily legal. In other words, we want CIA officers to exercise their own independent legal judgment.

To be sure, CIA officers no more carry around a library of international law than soldiers. Yet a soldier who commits a war crime can only invoke the defense of superior orders when, in the words of the Army Field Manual, “he did not know and could not reasonably have been expected to know that the act ordered was unlawful.” We expect a soldier, in other words, to have at least a basic understanding of the laws of war. Why should we expect any less of a CIA officer?

Indeed, given what we know about the CIA interrogators, it’s clear that we can justifiably hold them to a much higher standard than the average soldier.  Recall what Dana Perino told us about the interrogators:

She said that they are well-trained “professionals” with “an average age of 40.” U.S. soldiers, on the other hand, are too immature to be trusted, argued Perino. That’s why they need the Army Field Manual:

“This is done at the CIA, and it is done by professionals who are given hundreds of hours of training, who are — I think General Hayden said an average age of 40; who are being asked to do very hard work in order to protect Americans.

It is also important to note that it is far from clear whether the OLC’s torture memos unequivocally assured the CIA interrogators that their “enhanced interrogation techniques” were legal.  I have not had the time to read all four memos carefully, but the following statements from one of them, discussed today by Glenn Greenwald, should certainly give us pause:

Note the penultimate sentence: the OLC acknowledges that it cannot be confident that the enhanced interrogation techniques are legal, but expresses its opinion that the judiciary is unlikely to address the issue.  Is that the kind of advice that justifies not prosecuting CIA interrogators for engaging in conduct that even one of the highest-ranking OLC officials admits is “patently illegal”?

I think the question answers itself.

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Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law
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The rationale that prosecuting is “looking backward” but not prosecuting is “looking forward” begs the question “looking how far”?

When one is looking no further than the end of their nose it does not matter in what direction one is looking.



[…] e Judiciário americanos quando praticadas por outros (ver uma análise mais detalhada, em inglês, aqui), ou quando praticadas pelas forças armadas americanas. Mas a CIA e, supostamente, outras […]

Erastus Corning II
Erastus Corning II

Judging from the anger and disappointment on both sides of the political spectrum–significant, but short of outrage–I really think the President, as a political matter at least, struck exactly the right balance here.  Plus, it seems a stretch to think that non-lawyer interrogators could be convicted on the ground they acted unreasonably by carrying out procedures (abhorrent as they may be) condoned by the OLC, even if they elaborated on those procedures to a certain extent.  It is hard to imagine that a court considering such a prosecution will find it was legal for the interrogators to waterboard, but only so long as they used 2 gallons or less of water as opposed to say 5 gallons.


[…] good response to this is here at Opinio Juris.  Essentially, OJ argues that CIA interrogators who unreasonably rely on OLC […]


I dunno about other lawyers, but when *I* write in a memo that I “cannot predict with confidence whether a court would agree with this conclusion,” I’m washing my hands of that particular course of action, and wishing the client good luck with his future endeavors.


Having read the cases cited by Martin Lederman, I’m not sure that “estoppel by entrapment” is the right standard.     It seems more like “good faith reliance on the advice of counsel.” Here’s an example fro the D.C. Circuit:   ” A defendant may avail himself of an advice of counsel defense only where he makes a complete disclosure to counsel, seeks advice as to the legality of the contemplated action, is advised that the action is legal, and relies on that advice in good faith. See SEC v. Savoy Industries, 665 F.2d 1310, 1314 n. 28 (D.C.Cir. 1981). ” United States v. West, 392 F.3d 450, 457 (D.C.  Cir. 2004) An interesting case is SUEIRO VÁZQUEZ v. TORREGROSA DE LA ROSA, 494 F.3d 227 (1st Cir 2007), which says at 236: “This case does not involve advice from private counsel, who may have financial incentives to provide exactly the advice the client wants. Rather, it involves advice from the office of the Secretary of Justice of Puerto Rico, which has much broader duties and obligations. Reliance on the advice of Puerto Rico’s chief legal officer, advice the defendants were required to follow by Puerto Rico law, was not unreasonable here.… Read more »