Why I Disagree with Marty Lederman About Prosecuting Waterboarders

I think it’s safe to say that Marty Lederman has been one of the blogosphere’s most passionate, articulate, and persuasive critics of the Office of Legal Counsel’s authorization of waterboarding. So I was very surprised to read his latest post on the subject, in which he argues not only that the CIA officers who actually conducted the waterboarding would not be prosecuted for doing so by this or any other administration, but also — and more radically — that they should not be prosecuted. The former is inescapable. But I take issue with the latter.

The motivation for Lederman’s post is the angry reaction in the blogosphere to Attorney General Mukasey’s open acknowledgment on Thursday that the DOJ has no intention of prosecuting waterboarders. (And recall that the CIA has now acknowledged that it has waterboarded at least three “high value” al-Qaida detainees.) Here is a snippet of Mukasey’s testimony before the House Judiciary Committee:

CONYERS: Well, are you ready to start a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

MUKASEY: That’s a direct question, and I will give a direct answer. No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.

For me to use the occasion of the disclosure that that technique was once part of the CIA program — an authorized part of the CIA program, would be for me to tell anybody who relied, justifiably, on a Justice Department opinion that not only may they no longer rely on that Justice Department opinion, but that they will now be subject to criminal investigation for having done so.

That would put in question not only that opinion, but also any other opinion from the Justice Department. Essentially, it would tell people: “You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigation when, as and if the tenure of the person who wrote the position changes or, indeed, the political winds change.” And that’s not something that I think would be appropriate and it’s not something I will do.

Although appalled by the OLC’s authorization of waterboarding, Lederman agrees with Mukasey that it would not be appropriate to prosecute the waterboarders. As he says at the end of his post, “prosecuting the intelligence operatives who relied on OLC’s bad advice is not the answer.”

Lederman’s argument, however, is not convincing. He begins by pointing out that Mukasey’s testimony does not exactly come as a surprise, because the DOJ continues to believe that waterboarding was legal when the CIA used it. He then turns to what he sees — correctly, I think — as the real issue:

The more interesting question — and the one that I think underlies the outrage over Mukasey’s remarks — would arise if and when the Department changed its legal view, and came to conclude that the conduct was in fact unlawful, i.e., that its previous advice was wrong. In that case, could it — should it? — go back and prosecute those who had relied upon that advice?

Lederman’s first response is that even this hypothetical DOJ would likely refuse to prosecute the waterboarders, because “[t]he practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial.” True enough — but as he acknowledges, that doesn’t answer the legal question, which is whether the hypothetical DOJ could “go back and prosecute those who had relied upon that advice.” Regarding that issue, he first says the following:

More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. 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.

This statement, however, is a red herring. As far as I know, none of the outraged bloggers have argued that the waterboarders should be prosecuted even if they reasonably relied on the OLC’s advice. On the contrary, as Lederman’s quote from hilzoy indicates, their point is that relying on the OLC’s advice was not reasonable. And Lederman himself admits that it is not unconstitutional to prosecute someone who unreasonably relies on government advice.

Lederman implicitly recognizes that the constitutional argument is not relevant here, because he then says that “of course, the difficult question in any case is whether the reliance was reasonable.” Unfortunately, he never gives an unequivocal answer to that question. On the one hand, he admits that he believes that waterboarding is “patently illegal” — i.e., so unmistakably illegal that no reasonable person could believe that it was legal. Yet he also seems to believe that the waterboarders could still have reasonably relied on the various government opinions to the contrary:

If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable. However, especially given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC’s advice to have been so unreasonable as to justify prosecution.

Two comments. First, Lederman’s argument conflates two different issues: whether a court would find the reliance reasonable, and whether a court should find the reliance reasonable. The latter obviously does not follow from the former.

Second, and more important, 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. Lederman, however, seems to foreclose that possibility completely when he writes that no court would find the waterboarders’ reliance on the OLC unreasonable “given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken.”

We are thus back to the original question: would a reasonable person — a “reasonable CIA interrogator”? — have known that waterboarding was illegal despite the advice of the OLC and the President’s assurances? I suppose reasonable people could disagree on that question, but Lederman himself seems confident that the answer is “yes.” After all, as pointed out above, he believes not only that waterboarding is illegal, but that it is patently illegal. It is thus difficult to understand why he nevertheless insists that “prosecuting the intelligence operatives who relied on OLC’s bad advice is not the answer.” If their reliance was unreasonable, why not?

This tension, it is worth noting, undermines other aspects of Lederman’s argument. Later in the post, after opining that it may be appropriate to prosecute the authors of the OLC’s erroneous opinions, he 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?

Again, there is no question that we should not lightly dismiss an OCL opinion that certain conduct is legal. We cannot expect perfect legal judgment from the CIA officers who engaged in waterboarding. But we also cannot completely collapse the distinction between reliance and reasonable reliance, as — again — Lederman seems to do when he says that no court would ever find an act unreasonable that had been approved by the OLC and the President.

A final thought: this discussion of the entrapment by estoppel defense highlights the importance of international criminal law. ICL does not recognize the defense, and for good reason: an act that qualifies as a war crime under international law is a war crime even if the perpetrator’s state insists that it is not. The alternative, of course, is unthinkable — if the Nuremberg Military Tribunals could not have punished war crimes that Hitler and the Reich Minister of Justice assured their subordinates were legal, convictions would have been few and far between.

The CIA waterboarders, of course, will never be called to account before an international tribunal. But that doesn’t mean they shouldn’t be.