Are Torturers Protected by Law?

First, read the whole thing before you flame. This post explores the idea that the cia torturers are protected by law from prosecution based on their torture. The bases for a legal argument that the cia torturers are protected is derived from the idea that those who rely on authoritative statements of what is and is not legal from the OLC are protected. The two sides of this argument come from Marty Lederman who is now Assistant Attorney General in the Office of Legal Counsel and from Kevin Jon Heller of Senior Lecturer at the University of Auckland Faculty of Law in New Zealand.

First is the case for legal immunity for the torturers. From Lederman, (emphasis in original)

Well, to begin with, it's a fairly academic question. As a practical reality, it is virtually inconceivable that any Department of Justice, of any party's Administration, would ever prosecute an intelligence official or contractor who had relied upon formal OLC advice. The practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial, and therefore no DOJ will ever seriously consider such a prosecution. (The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.)

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.

The defense advocated by Lederman is not a just following orders defense. That defense would be that the superiors of the tortures told them it was ok. Here they were told by the people who are supposed to say what the law is that their actions were ok. You learn in criminal law about this type of defense. The example taught is Section 2.04 of the Model Penal Code that provides,

[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.

You will commonly see cites on this site to international treaties and other statutes that makes torture illegal and a crime. The point of this defense though is to say that although torture is a crime, reasonable reliance on a government opinion that it is not is exculpatory. It doesnt matter that torture is illegal if the torturer could reasonably rely on the olc opinion that it is not. Lederman's argument hinges, as he recognizes, on whether or not a person could reasonably rely on the memos. Lederman cites two pillars for his contention that a court would find the reliance to be reasonable.

(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.

The second pillar seems to have fallen away. However, there is still a question as to whether a court would be willing to say that the president and attorney general and the rest of the Bush administration's belief that the conduct was legal carries no weight. The first pillar is one that Obama and presumably Lederman wish to protect. The OLC issues its opinion and it is essentially binding on the executive branch. The OLC tells the executive what is and is not legal because the courts only decide cases in controversy and do not issue advisory opinions.

It is possible that this traditional OLC function and the way it is carried out needs to change. Prosecuting those who relied on what they believed to be the law will certainly make the OLC less effective in providing advice about what is and is not legal.

Prof. Heller makes the counter argument, and again here, that reliance on the memo's was prima fascia unreasonable.

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?

I think Prof. Heller drives a truck through Prof. Lederman's argument that there is a reliance defense available to the torturers themselves. This, i think, makes President Obama's decision to exempt them from possible prosecution wrong. If not waterboarding, certainly the room 101 style actions, were torturous on their face and a reasonable person would have known this. This means that the torturers had could not reasonably rely on the memos of the OLC and that they should be just as culpable as the authors for the torture.

While torturers themselves can be held accountable by law, it seems a practical certainty that they will not be.