Want to Prosecute the Lawyers? Cite Ministries — Not the Justice Case

by Kevin Jon Heller

Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted — as I do — normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Last year, I wrote a long post for Balkinization explaining why I believe that, in fact, the Justice Case provides much less support for that proposition than most scholars assume.  As I said then, nothing in the Tribunal’s judgment prohibits prosecuting a government lawyer for giving erroneous legal advice — but nothing in the judgment supports it, either.  That is, of course, a critical distinction when one is arguing that a case has precedential value.

There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case, in which a number of government ministers, state secretaries, and high-ranking members of the Nazi party were convicted of crimes against peace, war crimes, and crimes against humanity.  The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office.  The two defendants, who were the Nazi government’s primary legal advisers, were convicted of crimes against humanity for approving SS actions that they knew violated international law.

The crimes in question involved the deportation of  6,000 Jews from France to Auschwitz in March, 1942 (p. 496*):

On 9 March 1942, Eichmann of the SS wrote the Foreign Office that it was intended to deport to Auschwitz 1,000 French and stateless Jews who had been arrested in France in 1941, asking if there was any objection.

On 11 March, the SS again wrote the Foreign Office that was desired to include 5,000 more Jews from France.  On the same day Luther wired the German Embassy in Paris, forwarding the request and asking for comment, and Paris replied, “no objection.”

On 20 March, Rademacher, by order, informed the SS that the Foreign Office had no objections to these 6,000 Jews being deported.  This was initialed by Woermann and von Weizsaecker, and contains the latter’s comment, “to be selected by the police.”

The Tribunal had little trouble convicting von Weizsaecker and Woermann for their involvement in the deportations. First, it concluded that Woermann — and by implication von Weizsaecker, his superior — knew that the deportations violated international law (pp. 497-98):

Neither claims that there was any legal justification for this deportation or suggests it was other than a flagrant violation of international law and of the provisions of the Hague Convention….  The defendant Woermann… knew that it was in violation of every principle of international law and in direct contradiction of the Hague Convention.

Second, the Tribunal held that because the defendants knew that the deportations violated international law, they had an absolute duty as the Reich’s legal advisers to object to the deportations when the SS asked them to assess their legality (pp. 958-59):

The Foreign Office was the only official agency of the Reich which had either jurisdiction or right to advise the government as to whether or not proposed German action was in accordance with or contrary to the principles of international law.  While admittedly it could not compel the government or Hitler to follow its advice, both von Weizsaecker and Woermann had both the duty and the responsibility of advising truthfully and accurately…

We have no doubt that Hitler and the Nazi police organizations had planned and desired to do what was finally done, namely to deport these unfortunate Jews from France to their death in the East.  This does not negative the importance of the fact that before the act was committed inquiry was made of the department of the Reich, whose duty it was to pass and advise upon questions of international law, as to whether or not it had any objection to the proposal.  The only advice it could give within its sphere of competence and the only objection it could raise from an official standpoint was that the proposed program did or did not violate international law…  If the program was in violation of international law the duty was absolute to so inform the inquiring branch of the government…

Unfortunately for Woermann and his chief von Weizsaecker, they did not fulfill that duty.  When Woermann approved the language “the Foreign Office has no misgivings” and von Weizsaecker changed it to the phrase “has no objections,” which phrases so far as this case is concerned are almost synonymous, the gave the “go ahead” signal to the criminals who desired to commit the crime.

The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny.  Nothing is lost if we simply substitute “Yoo, Bybee, and Bradbury”  for “Woermann and von Weizsaecker,” “OLC” for “Foreign Office,” and “torture” for “deportations.”

Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann.  The latter’s criminal participation in the deportations consisted solely of omissions — failing to point out that the deportations violated international law.  The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.

Scholars who want to see the authors of the OLC memos prosecuted, in short, should cite Ministries instead of the the Justice Case.  The Justice Case does not rule out such prosecutions, but it also does not support them.  Ministries, by contrast, explicitly holds that knowingly providing erroneous legal advice is criminal.



53 Responses

  1. “Nothing is lost if we simply substitute ‘Yoo, Bybee, and Bradbury’  for ‘Woermann and von Weizsaecker,’ ‘OLC’ for ‘Foreign Office,’ and ‘torture’ for ‘deportations.’ ”  What about the fact that the Jews were not involved in terrorist activity and had no information that might secure the safety of the German people?  The intent behind the objectionable activity is crucial to the relevant inquiry and any discussion should take into account the reasons for the actions of the previous administration.

  2. I couldn’t possibly disagree more.  Criminal activity does not become legal because the criminals had what they believed were good motives for committing their crimes.  Indeed, it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt.

  3. If the alleged victim was in the territory of a State party to Geneva IV, then the intent of the alleged perpetrator is relevant under Article 5 :  “Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.”  This provision, which might arguably apply to the members of the past administration, distinguishes their cases from the Ministries Case.

  4. No, it doesn’t.  GC IV is irrelevant to a criminal prosecution for torture — torture is illegal no matter who the victim is, protected person or not.  End of story.

  5. I agree that torture is illegal no matter who the victim is.  However, a criminal defendant cannot be guilty of torture unless he had the requisite mens rea.  And the defendant’s intent might depend on who the victim is.  Thus “[t]he intent behind the objectionable activity is crucial to the relevant inquiry.”

    Furthermore, the mens rea required for a criminal conviction under 18 U.S.C. §§ 2340-2340A appears to be different that the applicable mens rea for a conviction under the Torture Convention (which is not self-executing and thus cannot be used as the basis for a federal criminal conviction).

  6. But doesn’t anon’s question make an even more basic assumption that is equally if not more troubling: that detainees are by definition “guilty” of crimes, which in effect permits those entrusted with their confinement and care to “punish” them (i.e., blesses extrajudicial punishment). Following Larry May, I think the status of detainees as confined, dependent and vulnerable gives rise to stewardship or fiduciary obligations based on principles of humanity and humane treatment. Indeed, alleged terrorists “are fighters who are even more in need of the traditional protection of the rules of war, for they inspire emotional reactions that are themselves often inhumane” (Larry May). Consider, for instance:

    There is a reason for keeping the rules of war, even though it is clear that one’s opponent will not do so: a concern for intstilling the general idea of the importance of obedience to the rules of war. According to this belief, it is not an immediate tit-for-tat response that is the reason for keeping to the rules of war, but something more long-run. The world is generally a better place the more people believe that they should restrain themselves even, and especially, during war. As has been recognized for several thousand years, the rules of war prevent the ravages of war from destroying the humanity of those who fight in them. (Larry May)

    And May reminds us that “we should not be overly swayed by the historical fact that the rules of war have be broken by both sides in nearly every war.”

    Furthermore, any attempt to invoke utilitarian principles of proportionality and necessity are trumped by the patently anti-utilitarian rules of the Geneva Conventions and other documents of international humanitarian law. On the domestic front, Thomas P. Crocker has thoroughly explained how and why

    Constitutional principles function as constraints on official action only when officials are tempted to exceed principled boundaries. If there is no temptation, there is no constraint. If, however, necessity trumps principle when officials are tempted by circumstances to violate the Constitution, then constitutional principles offer no constraints precisely when they most apply. (For the full argument, please see his paper, ‘Overcoming Necessity; Torture and the State of Constitutional Culture.’)

    In any case, what about procedural due process? “Terrorists are like other types of accused criminals in that until there has been a trial it is unfair to treat them as if their status as terrrorists had been conclusively determined.” In other words, legally, they are “suspected” terrorists unless or until they are convicted of a crime. The due process question cannot be avoided, because it is undoubtedly true that terrorists are either combatants or criminals (or some combination thereof?): “It is normally thought that those who have broken the law, even if cavalierly done, still deserve the law’s protection. Indeed, this is the hallmark of a liberal society that recognizes the rule of law, as opposed to a vigilante-based society” (May).

    Finally, I suspect anon has in the back of her mind some “ticking bomb” scenario that in the end sanctions the resort to torture as an interrogation process. To help her appreciate the myriad problems with that “picture,” please see the relevant articles and books by Brecher, Ginbar, Luban and Shue in my select bibliography on torture. See too Israel’s High Court of Justice argument in Public Committe Against Torture in Israel v. State of Israel, et al., (HC 5100/94…), Supreme Court of Israel, 7 BHRC 31, 6 September 1999.

  7. Indeed, it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt.

    So we all wasted out time learning the English meaning of “mens rea”.

    As to the notion that the OLC lawyers “knew” they were approving torture – really?  Including, for example, the belly slap?

    I think they “knew” that some behaviors are essentially innocuous, some are clearly torture, some can become torture if done to excess, and that they had to create guidelines sorting through that muddle.

    Somebody else would draw the somewhat arbitrary and artificial line somewhere else.  Well, fine.  To go from that to concluding that everyone could only have known that the old line was wrong is quite a leap.

  8. I am not motivated by any “ticking bomb” scenario, but simply by the reality that torture is not a strict liability crime.  For that reason, the defendant’s intent would be relevant.
    Anyways, I apologize to Prof. Heller for leading this post astray.  I agree with the main proposition that the Ministries Case is more on point that the Justice Case.  I am just skeptical that either should serve as precedent for the criminal conviction in the United States of any members of the previous administration.

    (By the way, I am a “he.”)

  9. Tom,

    Whether the authors of the OLC memos knew that their advice violated international law would, of course, be for the jury to decide.  But I think it is very difficult to argue that they did not know that waterboarding qualified as torture and thus violated international law.  Indeed, you seem to assume as much — which is all that a conviction would require.

  10. Anon,

    No need to apologize.  I’m glad we’re in basic agreement about the meaning of Ministries; we’ll just have to agree to disagree about its precedential value…

  11. Anon,

    If your’re not motivated at all about the “ticking bomb” scenario (or variants of or derivations from), just what precisely is the relevance of speaking about “Jews [who] were not involved in terrorist activity and had no information that might secure the safety of the German people?” Precisely what kind of information is at issue here?

  12. On the question Tom MacGuire of “belly slaps” not being torture: the memos make clear that the specific intent of that, and of “attention holds”, and “walling”, was to disrupt any sense of assurance or expectations that a prisoner might have had about good treatment from the U.S., to give the impression that the treatment of the prisoner was in fact lawless and out of control, and to instill fear of worse being done at any time.  That is torture.  The argument is not that “belly slaps” and “attention holds” were themselves unbearable acts; indeed, without the intent of producing the terrifying effect, one might wonder, not whether they were torture, but why they were done at all.  The memos answer that question.

  13. I think it is very difficult to argue that they did not know that waterboarding qualified as torture and thus violated international law.  Indeed, you seem to assume as much — which is all that a conviction would require.

    Thanks for the reply and sorry if my original post was unclear.  I would say, having read through the OLC memos, that the authors convinced themselves that waterboarding under medical supervision and restrictive guidelines could be viewed as something less than torture.  The authors clearly knew they were drawing black and white lines in a very gray area.

    And since the cite the fact that over 26,000 US servicemen have been waterboarded as part of their training since 1992 (and many thousands more before that), then either:

    (a) the US routinely tortures its own servicemen; or

    (b) at some level of intensity, waterboarding is not torture.

    The authors chose (b).  Is that clearly irresponsible, or just a point on which reasonable people might disagree? 

    By way of comparison, the US does not use, for example, cattle prods to the genitals, acid to the face,  or dismemberment in routine training.

    A less emotive example might be helpful.  Is sleep deprivation torture?  Surely it depends on the length – I don’t think anyone could argue that four hours of sleep deprivation is torture.  How about four days?  How about four weeks?

    I could easily be convinced that somewhere on that line, sleep deprivation becomes torture.  I am also quite certain that someone else might draw the line somewhere else.

    If I make a good-faith determination that the line is four days and someone else makes a good-faith determination that the line is six days, can I use the Ministries precedent against them?

  14. The relevance of the distinction is that the Nazis had no logical reason to fear that the Jews threatened their national security.  In fact, they had no reasonable basis for doing what they did.  However, Al-Qaeda’s attacks on the World Trade Center, the USS Cole, etc. demonstrated that this organization poses a tangible threat to the security of the United States.  Because of this fundamental difference, the Nazi’s reaction to their perceived problem seems legally distinguishable from the acts of members of the previous administration against Al-Qaeda’s operatives like Abu Zubaydah and Khalid Shaik Mohammed.  And the intent behind those acts is relevant in a criminal prosecution. 

    But that does not mean that torture is legal or morally acceptable.

  15. Tom,

    To answer your last question, no.  But I do not believe that Yoo, Bybee, and Bradbury honestly believed that nothing they authorized qualified as torture.  I think that is undeniably true in terms of international law — they had to know that their interpretation of the US definition of torture was substantially different than the international definition.  And I am not even sure that they honestly believed that what they were authorizing did not qualify as torture under US law, although I acknowledge that is a closer question.  Speaking for myself, I think Yoo, Bybee, and Bradbury intentionally attempted to recast the traditional US definition of torture, which they found inconvenient.  If so, they knew full well that their definition was not consistent with US law, which means that they knew they were authorizing a program that violated US law.

  16. Torture is the attempt to force someone to speak by facing them with the unbearable – unbearable discomfort, unbearable distress, unbearable fear – so that the person feels he or she has no option but to speak to stop what is being done.

    (As far as I remember, the word “unbearable” or an equivalent does not appear anywhere in the memos.  It would not co-exist easily with the construct Bybee and Bradbury are trying to use.)

    The problem with what Tom Maguire is doing – a lot of people have been doing this lately, quite sincerely – is to accept the effort, which requires and includes the attempt at unbearability, while asking questions about how bad the means are.  This is accepting and walking down and standing on the road while asking, “Is thirty feet down the road torture?  Is fifty? Is twenty?  How about two steps back?  A reasonable man could draw a line between twenty-five and thirty.”  The problem is that the entire road is torture; it is the attempt at forcing someone to talk by – necessarily – imposition of the unbearable upon the subject. 

  17. Anon,

    How exactly does believing that the detainees were a threat negate the mens rea of torture?  Where in the definition of the crime is the requirement that the torturer not have a legitimate belief that the torturee is a threat to national security?

  18. “The relevance of the distinction is that the Nazis had no logical reason to fear that the Jews threatened their national security.  In fact, they had no reasonable basis for doing what they did. ”

    On what ground is it reasonable to abduct somebody in Europe or from a US airport ignoring somehow this person is nowhere near a battlefield -leaving aside the thousands with no apparent ties to terrorism that were bought from bountyhunters- and then claim they were about to “attack” the US? In other words you are claiming that the mere fact a person is being tortured proves he is a terrorist. Why else would they torture somebody?

    Second, as has been mentioned, where in UNCAT does it say that “preventing a terrorist attack” absolves one from the absolute prohibition on torture?

  19. Indeed, it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt.
    So we all wasted our time learning the English meaning of “mens rea”?

    Nobody who understands that motive and intent are not synonymous wasted their time learning the meaning of mens rea. Kevin is absolutely correct.

  20. “(b) at some level of intensity, waterboarding is not torture.
    The authors chose (b).  Is that clearly irresponsible, or just a point on which reasonable people might disagree? ”
    It is certainly worrisome that the US Navy was using waterboaring in SERE training.  a) is a distinct possibility, but even in the debatable claim that waterboarding as practiced by the navy was not torture, it requires a very large leap to argue that waterboarding an unwilling prisoner who has no ability to stop the activity is the same.  The 2005 memo noted the IG’s objection along those lines.  This is an obvious objection and I don’t think it’s defensible as an honest ommission for the 2002 memo.   The whole premise of justfying the techniques because they are used in SERE training was always preposterous – SERE picked the techniques because they were forms of torture practiced by America’s enemies in past wars on US POWs.
    This tendency to sink into the weeds of the specifics of the tactics is also a mistake.  The intent was to make detainees cooperate by use of inflicted pain, discomfort and suffering on them.  That’s torture.  The details don’t matter to me as far as that goes unless they help with securing convictions.
    Final comment, some of the defences offered here on behalf of the lawyers are the sort of thing a court should hear and decide on in the course of a trial.  Press charges and let Yoo, Bybee and Bradbury make their defence if they can.  A crime was committed.  It may be that some of those involved can escape conviction for various reasons, but at least by pressing charges we acknowledge a crime occurred.

  21. “But that does not mean that torture is legal or morally acceptable.” Indeed, it does not.

  22. I think DanD’s points are very well taken, especially about SERE training.  I might be convinced that waterboarding doesn’t cause sufficient physical pain to qualify as torture, but I think it is undeniable that it causes sufficient mental pain.  And on that issue, the SERE training says nothing — as DanD points out, a US soldier knows full well he is not going to be murdered during his training.  The detainee, by contrast, knows no such thing.

  23. “I might be convinced that waterboarding doesn’t cause sufficient physical pain to qualify as torture”

    Doesn’t that give the game away?  Under US law, torture requires prolonged mental pain – at which point we get into the very subjectivity the OLC sought to push to its maximum limits.

    [This is a tangent; feel free to ignore it.]

  24. Don’t affirmative defenses like self-defense or duress act to defeat criminal liability even when the mens rea for a given offense is present? Perhaps we don’t want to extend those affirmative defenses for torture in particular, but to say “it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt” seems to oversimplify.

  25. “…to say “it is a basic principle of criminal law that the motive behind a crime is irrelevant to the defendant’s guilt” seems to oversimplify.”

    Sorry, but I don’t think it’s an oversimplication at all. Rather, it is a necessary doctrinal demarcation. Again, motive and intent are not synonymous. Why the perpetrator needs the information is wholly irrelevant to the perpetrator’s intent to cause the requisite suffering to get the information (mens rea). Causing the requisite suffering to get information is torture. Full stop. Doesn’t matter whether the perpetrator does it because he’s too lazy to google the question, or is a sadist who finds this information gathering method more pleasurable than going to the library, or sincerely believes she is serving a greater purpose and saving lives.  

  26. Regardless of whether it should, does an NMT decision have precedential value in a US Court? If so, what sort of precedential value? Can it be controlling, or does a Court just have the option to take it “under advisement” (the same way they’d rely on a Law Review article) or is it somewhere in between? And if it can be controlling, under what circumstances? Presumably not if it conflicts with controlling SCOTUS precedent. What if it conflicts with a Court of Appeals’s precedent?

    I’m new to this topic, so sorry if these questions are obvious. (There does seem to be some disagreement over Ministries’s precedential value, though.)

  27. B. Don Taylor III:

    Well, for better or worse, the Israeli Supreme Court thought otherwise, for while it disallowed an ex ante “necessity” argument for the legal justification of torture, it did mention the possibility of an ex post “necessity” defense. In other words, while it recognized the prohibition of torture as “absolute,” it was “prepared to accept that in the appropriate circumstances GSS investigators may avail themselves of the ‘necessity’ defence, if criminally indicted.” I think the reasoning here is of some interest, so you might want to look at the decision cited at the end of my comment above.

  28. B. Don Taylor III:

    I was taking issue more with the general nature of the statement, rather than its applicability, or lack thereof, to the torture question specifically. I may point a gun at someone and shoot them with the intent of killing them, but if my motive is self-defense, then I have a valid defense to a charge of murder. Professor Heller’s statement that I quoted was made as an absolute, not solely referencing the torture question; in fact, his point appeared to place great weight on the fact it is a broad, fundamental principle across all criminal law, and I was trying to point out that’s not always the case when affirmative defenses are involved.

  29. There’s an informative piece on Slate by William Saletan about the difference between SERE training and torture.

  30.  it requires a very large leap to argue that waterboarding an unwilling prisoner who has no ability to stop the activity is the same

    Maguire knows that — it’s not like this is the first time he’s ever considered the subject.  He’s just not making a good-faith argument.  (That inference is pretty much on part with the inference that Bybee and Yoo didn’t believe what they were writing/signing.  There are people that stupid, but Bybee, Yoo, and Maguire are smart.)

  31. Angus,

    Your question is a good one.  Those of us interested in the WW II cases are not using precedent in the technical sense, as binding law.  We are using it more metaphorically, to rebut the claim, often heard on the right, that it would be unprecedented to hold government lawyers accountable for knowingly giving false legal advice.  As Ministries indicates, that is simply untrue.

    As for affirmative defenses, that wasn’t what I was talking about — such defenses are only applicable once the defendant concedes that the crime has been committed (that his actions satisfied both the actus reus and mens rea of the crime).  I don’t take the Israeli decision Patrick references particularly seriously; it is difficult to imagine a more politically-driven Supreme Court, at least insofar as it deals with national-security cases. 

    But, in any case, Israel’s approach to the defense of necessity is irrelevant to the US approach — and I don’t know anyone other than the authors of the OLC memos who believes that a CIA interrogator, much less the OLC lawyers, could plausibly argue necessity.  First, except in the feverish imaginations of the right, there was no “clear and imminent danger” that led the OLC to authorize torture; a vague fear of future terrorist acts does not qualify.  Second, I do not think a reasonable person would accept that torture would be an effective means of obtaining information.  Third, there were legal avenues available to avert the purported harm — as we have seen time and again, legal forms of interrogation were remarkably successful in obtaining actual intelligence, whereas torture was a complete failure.  Fifth — and this is particularly important — lawmakers already “anticipated the choice of evils and determined the balance to be struck between the competing values” in a manner that rules out the decision to torture.  The prohibition on torture in CAT is absolute, a position adopted precisely to avoid argument like the ones made in the comments here — that our noble motives in combatting terrorism justify torture.  Congress did not quibble with the absolute prohibition when it implemented CAT.

  32. Kevin Jon Heller,


    One other (rather big) question: is there any court – US, foreign or international – in which a US government lawyer who knowingly gives false legal advice can be prosecuted?

    1. I know that Art. 28 of the Rome Statute gives the ICC jurisdiction over a “military commander or other superior” of someone who commits torture. But the OLC lawyers don’t seem to qualify as “commanders or superiors” (they’re memos aren’t binding, they can’t order torture, etc.) so even if they were to somehow come under ICC jurisdiction, could they be prosecuted there? Is there any other international tribunal in which they could be prosecuted?

    2. Did the OLC lawyers violate any US law? I remember Richard Painter, while he was guest-blogging over at the Volokh Conspiracy, mentioned (rather cryptically) that “in the private sector [giving bad legal advice] is worked out through malpractice suits. In government, lawyers who give wrong answers or answer questions they should have refused to answer are fired or — as is the case here — have to deal with adverse public opinion.” That sounds to me like (according to Painter) the OLC lawyers didn’t violate any US law (at least any law for which they could be held criminally liable in US court). Of course, Painter didn’t seem to think they’d knowingly given false legal advice, so his opinion might be a non sequitur.

    3. The only other options (unless I’m missing something – and I’m cobbling this together from an hour of research and what I remember from undergraduate I-Law) are that (a) there is some especially aggressive state out there that has in some way prescribed US government lawyers from knowingly giving bad legal advice or (more likely) (b)  some foreign court could invoke universality and try to prosecute the OLC folk. But, for (b) to happen (legitimately) the lawyers would have (at least) had to violate customary international law. Does Ministries count as customary international law (with universal scope)? Is there any other relevant CIL? (I have trouble thinking there is, given that the Rome Statute was supposed to codify most of it.)

    Anyway, I’m sure I’ve asked a ludicrously complicated question(s), but any info would be appreciated.

  33. Did the OLC lawyers violate any US law?
    Obviously I can’t answer for Prof. Heller, but to the extent a jury believes that Yoo and Bybee were simply incompetent, no.
    The contention has always been that they wrote/signed advice they knew was incorrect as a matter of law, as part of a conspiracy to violate the Torture Act etc.  That certainly seems to be how our European friends view the situation.
    The most notorious example is the omission from the previously-published Aug. 2002 memo of any mention of <i>Youngstown Sheet & Tube</i>, in a discussion of statutory obstacles to presidential war powers, by Yoo, a con law professor.  (Some apologists claim he had treated that case in a prior memo, but looking there, all you find is a tossaway cite to cherry-picked language from the Frankfurter concurrence.)
    Yoo knew that, whatever his own contempt for <i>Youngstown</i>, the Supreme Court was likely to employ its analysis (esp. the Jackson concurrence) in reviewing his claims for executive power.  Omission of that strong possibility was either (1) a failure to advise his client, perhaps egregious enough to warrant bar discipline, or (2) a deliberate omission of contrary authority, in order to create the illusion of legal support for the desired conclusions.  (2) is conspiracy.

  34. Under 18 U.S.C. § 2340, the act must be “specifically intended to inflict severe physical or mental pain or suffering.”  “It is generally recognized that evidence of motive may be probative of specific intent.”  Lesko v. Owens, 881 F.2d 44, 53 (3d Cir. 1989).  Thus the argument that the defendant has “a legitimate belief that the torturee is a threat to national security” is relevant to the issue of specific intent.

    Even in the context of the Torture Convention, at least one federal court has recognized that motive is relevant to demonstrate the requisite mens rea.

    “Given the ratification history of the CAT, we conclude that the CAT requires a showing of specific intent before the court can make a finding that a petitioner will be tortured. In this vein, we note that Pierre does not dispute that the CAT includes a specific intent requirement. Rather, Pierre argues that the specific intent requirement can be satisfied by a showing that the Haitian officials have knowledge that severe pain or suffering is the practically certain outcome of his imprisonment. We disagree that proof of knowledge on the part of government officials that severe pain or suffering will be the practically certain result of Pierre’s detention satisfies the specific intent requirement in the CAT. Rather, we are persuaded by the discussion in Auguste that the specific intent requirement, included in the ratification history of the CAT, requires a petitioner to show that his prospective torturer will have the motive or purpose to cause him pain or suffering. As in Auguste, we hold that “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act.” Auguste, 395 F.3d at 145-46. Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.”

    Pierre v. Attorney General of U.S.
    , 528 F.3d 180, 189 (3d Cir. 2008)

  35. I just think that obtaining a conviction on torture is going to be impossible, as there’s almost no evidence they didn’t act in good faith.  Everyone might believe there’s no way they could be that dumb, but proving it beyond a reasonable doubt is quite another matter.

    Having no small amount of experience with human error and ineptitude, I just don’t see any way behavior can be sufficiently erroneous as to disprove good faith on its face without any evidence of intent.

  36. Everyone might believe there’s no way they could be that dumb, but proving it beyond a reasonable doubt is quite another matter.

    So if a jury found against them, you think the judge would have to enter a JNOV?
    The other possibility is e-mails or such demonstrating a conspiracy. 

  37. If anyone is interested in domestic precedents for war crimes prosecutions of lawyers, I believe the Second Circuit’s decision in Firpo v. United States warrants a read.  It’s an old decision and has no progeny but it is still an interesting precedent that has been ignored. 

  38. Thanks, Milan, I hadn’t seen that, or your Slate article — good stuff.

  39. Milan,

    That’s interesting. This seemed the most relevant part of the opinion: “It was the duty of the lawyer to his client to assist him in securing his release from the army. If there appeared to the plaintiff in error reasonable grounds for the expectation of success, it was not criminal for him to advise his client to remain away from the authorities.”

    This could cut two ways. On the one hand, you could read it as saying that a lawyer isn’t culpable for knowingly giving bad legal advice as long as he has a “reasonable expectation” that his advice would be upheld in court, which is a pretty forgiving standard. On the other hand, unlike Firpo, the OLC lawyers had a duty, <i>not</i> to assist their “client” (the Administration) in carrying out its policies, but to tell them what was legal. Arguably, the quoted passage applies the “reasonable expectation of success” standard only to lawyers whose “duty” is to serve their clients’ interests (not just tell them what the law is) and so is not relevant to whether the OLC lawyers are culpable.

    Of course, the whole case is pretty distinguishable…

  40. Response…Cheney, Bush, Rumsfeld, J.Yoo, C.Rice, and cohorts ought to be prosecuted in accordance with the American Constitution! The lawyers who excused their conduct must face the consequences they invited by breaking the laws of this country. Congress now has to – for once – do its job. And since Pres. Obama has not yet closed Guantánamo,
    These war-mongering criminals should all be sent there to get a taste of the treatments they inflicted themselves on mere suspects who were then allowed no legal recourse.  

  41. I agree with M. Gross.  It would not be too difficult to sway a jury to believe that the defendants had a motive or purpose other than to cause pain or suffering, i.e. protecting the nation from threats to national security.

  42. And that’s why evidence of motive would be useful to defeat the intent element as per the Third Circuit cases cited above.

  43. anon,

    But that “necessity” argument is simply too convenient if it’s meant to suggest that any means, including otherwise immoral and illegal (and unconstitutional) ones in this case, are necessary to achieveing such an end (i.e., national security). Indeed, there’s no compelling historical evidence that torture “works” (see Darius Rejali’s Torture and Democracy, 2007), or, if or to the extent that it does, that its purposes cannot be achieved by other, and legal, means. No one believes, in any case, that the motive was simply to “cause pain and suffering” simpliciter, as that would mean that the purposes of torture are primarily or largely sadistic (of course any individual torturer may derive some sort of perverse satisfaction from satisfying such a desire, but that’s a by-product or spillover effect) but that the infliction of pain and suffering is an intrinsic part of the overarching intentional project to elicit information through this specific means….  And thus the requisite intention to cause pain or suffering is inferred from the specific acts and practices for, after all, that is one (of three: to intimidate, to coerce false confessions, and to gather accurate security information) of torture’s raisons d’etre. There’s documentation aplenty for the sorts of acts and practices that constitute torture, so it need only suffice to demonstrate that the acts and practices in question were of that type to demonstrate the requisite intentional element. And, interestingly, Luban has pointed out how torture is frequently the “first,” and not the last resort in such cases, which itself speaks volumes. We need also to keep in mind that such phrases as “moderate physical pressure,” “enhanced interrogation,” “highly coercive interrogation,” and “pushed interrogation” are long-standing euphemisms for what is legally and otherwise known as torture.

    For a thorough critique of the “necessity” (i.e., threat to national security) argument, please see the two articles by Thomas Crocker in my reading list on torture

    As to the “good faith” part, Brian Tamanaha and David Luban, among others, have shown how that, in least in the case of the “torture lawyers,” “bad faith” is the more transparent conclusion. One of the reasons the prohibition of torture is “absolute” (and a jus cogens norm: on which, see Larry May’s Crimes Against Humanity: A Normative Account, 2005; as to the ‘absolute’ character, see Jamie Mayerfield’s 2008 article in my bibliography) is precisely to foreclose the temptation to invoke either an ex ante justificatory or an ex post necessity defense.

    I trust Kevin will pardon me if I cite the reasoning from the Israeli Supreme Court decision with regard to the former:

    First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever. There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation (F.H. 3081/91 Kozli v. The State of Israel, 35(4) P.D. 441 at 446). Human dignity also includes the dignity of the suspect being interrogated. (Compare H.C. 355/59 Catlan v. Prison Security Services, 34(3) P.D. 293 at 298 and C.A.4463/94 Golan v. Prison Security Services, 50(4)P.D. 136). This conclusion is in perfect accord with (various) International Law treaties -to which Israel is a signatory -which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment” (See M. Evans and R. Morgan, Preventing Torture (1998) at 61; N.S. Rodley, The Treatment of Prisoners under International Law (1987) at 63). These prohibitions are “absolute”. There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can potentially lead to the investigator being held criminally liable. (See, for example, article 277 of the Penal Law: Pressure on a Public Servant; supra at 130, 134; Cr. A. 64/86 Ashash v. The State of Israel (unpublished)). Second, a reasonable investigation is likely to cause discomfort; It may result in insufficient sleep; The conditions under which it is conducted risk being unpleasant. Indeed, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various machinations and specific sophisticated activities which serve investigators today (both for Police and GSS); Similar investigations- accepted in the most progressive of societies- can be effective in achieve their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time wise may be deemed a use of an investigation method which surpasses the least restrictive means.

    The question before us is whether it is possible to infer the authority to, in advance, establish permanent directives setting out the physical interrogation means that may be used under conditions of “necessity”. Moreover, we are asking whether the “necessity” defence constitutes a basis for the GSS investigator’s authority to investigate, in the performance of his duty. According to the State, it is possible to imply from the “necessity” defence, available (post factum) to an investigator indicted of a criminal offence, an advance legal authorization endowing the investigator with the capacity to use physical interrogation methods. Is this position correct?
    In the Court’s opinion, a general authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity” defence. The “necessity”defence does not constitute a source of authority, allowing GSS investigators to make use physical means during the course of interrogations. The reasoning underlying our position is anchored in the nature of the “necessity” defence. This defence deals with deciding those cases involving an individual reacting to a given set of facts; It is an ad hoc endeavour, in reaction to an event. It is the result of an improvisation given the unpredictable character of the events (See Feller, ibid. at 209). Thus, the very nature of the defence does not allow it to serve as the source of a general administrative power. The administrative power is based on establishing general, forward looking criteria, as noted by Professor Enker: “Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values…The defence of Necessity does not define a code of primary normative behaviour. Necessity is certainly not a basis for establishing a broad detailed code of behaviour such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like (Enker, “The Use of Physical Force in Interrogations and the Necessity Defense,” in Israel and International Human Rights Law: The Issue of Torture 61,62 (1995)). In a similar vein, Kremnitzer and Segev note: “[t]he basic rationale underlying the necessity defence is the absence of the possibility to establish accurate rules of behaviour in advance, appropriate in concrete emergency situations, whose circumstances are varied and unexpected. From this it follows, that the necessity defence is not well suited for regulation a general situation, the circumstances of which are known and (often) repeat themselves. In similar cases, there is no reason for not setting the rules of behaviour in advance, in order that their content be determined in a thought out and well-planned manner, in advance, permitting them to apply in a uniform manner to all” (supra, at 705). Moreover, the “necessity” defence has the effect of allowing one who acts under the circumstances of “necessity” to escape criminal liability. The “necessity” defence does not possess any additional normative value. In addition, it does not authorize the use of physical means for the purposes of allowing investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act (due to the “necessity” defence) does not in itself authorize the administration to carry out this deed, and in doing so infringe upon human rights. The Rule of Law (both as a formal and substantive principle) requires that an infringement on a human right be prescribed by statute, authorizing the administration to this effect. The lifting of criminal responsibility does not imply authorization to infringe upon a human right. It shall be noted that the Commission of Inquiry did not hold that the “necessity” defence is the source of authority for employing physical means by GSS investigators during the course of their interrogations. All that the Commission of Inquiry determined is that if an investigator finds himself in a situation of “necessity”, constraining him to choose the “lesser evil” – harming the suspect for the purpose of saving human lives – the “necessity” defence shall be available to him. Indeed, the Commission of Inquiry noted that, “the law itself must ensure a proper framework governing the [security] service’s actions with respect to the interrogation of hostile terrorist activities and the related problems particular to
    it” (ibid. at 328).
    In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not from defences to criminal liability. The principle of “necessity” cannot serve as a basis of authority (See Kremnitzer, ibid. at 236). If the State wishes to enable GSS investigators to utilize physical means in interrogations, they must seek the enactment of legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would flow not from the “necessity” defence but from the “justification” defense which states: “A person shall not bear criminal liability for an act committed in one of the following cases: (1) He was obliged or authorized by law to commit it. ” (Article 34(13) of the Penal Law) The defence to criminal liability by virtue of the “justification” is rooted in an area outside of the criminal law. This “external” law serves as a defence to criminal liability. This defence does not rest upon the “necessity”, which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the authority is found in a provision of the Law of Detention, external to the Penal Law. If a man is killed as a result of the application of force, the provision is likely to give rise to a defence, by virtue of the “Justification” (See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor 34(2) P.D. 353). The “necessity” defence cannot constitute the basis for the determination of rules respecting the needs of an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation that he is conducting. The power to enact rules and to act according to them requires legislative authorization, by legislation whose object is the power to conduct interrogations. Within the boundaries of this legislation, the Legislator, if he so desires, may express his views on the social, ethical and political problems, connected to authorizing the use of physical means in an interrogation. These considerations did not, from the nature of things, arise before the Legislature at the time when the “necessity” defence was enacted (See Kremnitzer, supra, at 239-40). The “necessity” defence is not the appropriate place for laying out these considerations (See Enker, supra, at 72). Endowing GSS investigators with the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the latters’ dignity and liberty, raise basic questions of law and society, of ethics and policy, and of the Rule of Law and security. These questions and the corresponding answers must be determined by the Legislative branch. This is required by the principle of the Separation of Powers and the Rule of Law, under our very understanding of democracy (See H.C. 3267/97 Rubinstein v. Minister of Defence (has yet to be published)).
    Our conclusion is therefore the following: According to the existing state of the law, neither the government nor the heads of security services possess the authority to establish directives and bestow authorization regarding the  use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general directives which can be inferred from the very concept of an interrogation. Similarly, the individual GSS investigator-like any police officer- does not possess the authority to employ physical means which infringe upon a suspect’s liberty during the interrogation, unless these means are inherently accessory to the very essence of an interrogation and are both fair and reasonable. An investigator who insists on employing these methods, or does so routinely, is exceeding his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity” defence, and according to our assumptions (See paragraph 35 supra.), the investigator may find refuge under the “necessity” defence’s wings (so to speak), provided this defence’s conditions are met by the circumstances of the case. Just as the existence of the “necessity” defence does not bestow authority, so too the lack of authority does not negate the applicability of the necessity defense or that of other defences from criminal liability. The Attorney General can instruct himself regarding the circumstances in which investigators shall not stand trial, if they claim to have acted from a feeling of “necessity”. Clearly, a legal statutory provision is necessary for the purpose of authorizing the government to instruct in the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation”, and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity” defence cannot serve as a basis for this authority. [emphasis added]
    [For the record, I don’t subscribe to the Court’s reasoning about the availability of ‘necessity’ defence which, it should be noted, is only applicable to specific cases and would not be available for OLC lawyers or Bush administration officials but only to those involved in the actual interrogation/torture practices.  Cf. Luban’s ‘Liberalism, Torture and the Ticking Time Bomb’ and Shue’s ‘Torture in Dreamland: Disposing of the Ticking Bomb’]

  44. I don’t mean to suggest “that any means, including otherwise immoral and illegal (and unconstitutional) ones in this case, are necessary to achieving such an end (i.e., national security).”  My original comment was that “[t]he intent behind the objectionable activity is crucial to the relevant inquiry [i.e., whether there was a violation of federal criminal law] and any discussion should take into account the reasons for the actions of the previous administration.”  It just seem plausible that an argument could be made that the current federal law (badly) implementing the Torture Convention and criminalizing torture would allow the OLC attorneys to raise the argument detailed above before a federal court.

    But that does not mean that (1) the OLC attorneys should not be disciplined for their erroneous advice, (2) the OLC attorneys did not commit torture as defined by the Torture Convention or understood under customary international law, or (3) the United States did not breach its international obligations to prevent torture or to punish torturers.

  45. Hence the crux of the problem and the reason I made the point about how to infer intent: the intent question is addressed without any need to take into “account the reasons for the actions of the previous administration” (i.e., those reasons are absolutely unnecessary and irrelevant to the determination of intent). There can be no such “reasons” (‘national security’ or the ‘necessity’ apologia) in defense of torture. If you insist on taking into account such reasons than you must take on board illegal, immoral and/or unconstitutional reasons. (Perhaps one could consider such reasons during sentencing by way of mitigating factors).

    Lest anyone attempt to conclude that this manner of inferring intent would mean the methods adopted in the SERE training program amount to torture, than one is simply being flippant and irresponsible: any cursory comparative examination will make plain the many relevant differences (see Alex Welsh’s reference above and Luban’s ‘Unthinking the Ticking Bomb’).

  46. Anon’s argument illustrates the danger of straying from criminal law doctrine into politics.  The intent to cause pain or suffering is only relevant to the responsibility of the CIA interrogators, the principal perpetrators of the crime.  (Although even there anon’s argument doesn’t work, because the interrogators’ allegedly noble motives — national security — were accomplished by intending to cause the torture victims sufficient pain and suffering to convince them to disclose their allegedly valuable information, which means that the interrogators possessed the necessary mens rea of the crime.)

    The authors of the OLC memos did not have to intend to cause pain and suffering.  They could be convicted of aiding and abetting torture as long as they knew that their legal advice would facilitate the criminal acts authorized by the memos. They could be convicted of soliciting torture as long as they intended the CIA interrogators to commit the criminal acts authorized by the memos.  And they could be convicted of conspiring to commit torture as long as they intended to enter into an agreement to commit the criminal acts authorized by the memos and intended for those criminal acts to be carried out by the CIA interrogators.  In none of those situations would allegedly noble motives be a defense or negate the requisite mens rea of the particular crime.

  47. I should add that the authors of the OLC memos could be prosecuted for torture via any of the modes of participation described above even if the CIA interrogators are never prosecuted. If the CIA interrogators were prosecuted and acquitted, however, the authors of the memos could still be convicted of solicitation or conspiracy, but not necessarily of aiding and abetting — it would depend on why the interrogators were acquitted. If the interrogators were acquitted because they lacked mens rea, the authors could not be convicted of aiding and abetting, although they might be able to be convicted of using the interrogators as their innocent instrumentality (perpetration by means). If the interrogators were acquitted because of a justification, such as necessity, the authors could not be convicted of aiding and abetting. Finally, if the interrogators were acquitted because of an excuse, such as the defense of superior orders or “reasonable reliance,” the authors could be convicted of aiding and abetting.

  48. Kevin,

    Thanks so much for reiterating these points made here and elsewhere by you and others. The distinctions involved in the possible legal scenarios sketched in your second comment I find especially interesting and helpful.

    Provided of course you can find the time, I’m hoping at some point you can speak to the question of “cruel, inhuman or degrading treatment” (with regard to criminal liability) which seems to have been unduly neglected in the focus on torture.

    Alas, “politics” may prove an insuperable obstacle to the untrammeled pursuit of criminal justice if public opinion and mass media rhetoric are accorded their usual scope of influence. It appears, as Luban notes, “that the American public has become decidedly tolerant of torture, provided that the subjects are described as terrorists.” By way of illustration: “U.S. media gave almost no coverage to allegations that U.S. forces ‘disappeared’ the seven- and nine-year old sons of Khalid Sheikh Mohammed, and abused them to learn where their father was located. The children have not yet reappeared.” [and that is confirmed by Amnesty International as of March, 19, 2009:]

  49. Response…
    My own two cents re: the second Bybee memo as proof beyond reasonable doubt that a memo writer is reasonably accused of complicity in international crime is at JURIST —

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