My recent interview on Legal Times on prosecuting Bush Administration officials for crimes committed in the torture program and unlawful surveillance program has attracted the ire of some conservative law faculty. My colleague Orin Kerr has raised this question on the conservative legal website Volokh Conspiracy. It is not without a good faith basis for such academic debate but, in my view, it should not be a barrier to prosecution.
As calls for prosecution in the Obama Administration increase, there seems to be shift in the emphasis of this defense. Fewer people are now suggesting that waterboarding is not torture. Instead, they are relying on the “entrapment by estoppel” defense – insisting that no one can be prosecuted because the Bush Administration said it was legal to waterboard suspects or engage in warrantless domestic surveillance.
Let’s focus on torture, which is the focus of some of these blog arguments.
The entrapment by estoppel argument is a difficult defense to make in a criminal case, as shown recently in California in the prosecution of a city council member who claimed to be acting on the legal advice of the city attorney. This argument is made where a government official misleads a defendant by first telling him that conduct is legal and then prosecuting him for the conduct. See United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996); see also Raley v. Ohio, 360 U.S. 423 (1959); Cox v. Louisiana, 379 U.S. 559 (1964).
However, this defense has often been rejected in even comparatively strong cases. See United States v. Fish, No. 04-1197 (7th Cir., Nov. 3, 2004). First, a defendant must show that he or she was reasonably misled by an official. The question is whether the official, acting under actual or apparent authority, affirmatively assured or actively misled the defendant into a reasonable belief that certain conduct was legal. Neville, 82 F.3d at 761.
In this case, we have a rather mixed record. The so-called Torture Memo signed by Alberto Gonzales was rescinded. The Administration has repeatedly stated that it “does not torture” and refused to publicly address waterboarding until recently. Indeed, Mukasey testified (rather implausibly) that he did not know what waterboarding was. Nevertheless, some Bush officials seem to have intentionally crafted an “entrapment by estoppel” defense in securing opinions from people like John Yoo. The DOD General Counsel, Jim Haynes, told military lawyers that the Office of Legal Counsel’s view of the law was determinative and established the law for the Executive branch. Under the Judiciary Act of 1789, it is not Yoo but the Attorney General who sets such legal policy — subject to being overridden by the President. Yet, a strong argument can be made that this function has been delegated to the Assistant Attorney General, Office of Legal Counsel. The status of Yoo at the time is a bit unclear since Jay Bybee was AAG at the time. It is not clear if Yoo had authority to issue such a legal determination or whether it meets the high standard demanded under this doctrine. Indeed, Yoo appears to have been used as the designated legal shill in this case, which is a sad legacy for a talented academic. While others were clearly unwilling to pen such an absurd legal opinion, Yoo proved all too willing to play this role. The question is whether he could be used as the basis for an entrapment by estoppel defense or whether a different legal opinion must be produced. Certainly, Haynes does not have such authority and has been ridiculed for his lack of legal judgment and respect for the law. This could produce a rehash of the very questionable decision rendered in U.S. v. Barker, 546 F.2d 940 (D.C. Cir. 1976), where the court reversed the convictions of White House plumbers based on the assurance of E. Howard Hunt. As Judge Harold Leventhal noted, Hunt was hardly a source of legal reliance.
The uncertainty of the status of the memo undermines the claim. If one has to assume that there was direct presidential approval of such “special measures,” there remains the question of whether the president clearly indicated that it was deemed legal. A president cannot simply order a crime. The defendant must claim that he was told that the conduct of determined to be lawful. See United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir. 1993).
Then there is the question of actual reliance on that assurance. Waterboarding has long been defined as torture under domestic and international law. When this program was first made public by the media, there was overwhelming views expressed by experts that it was not just a crime but a war crime. The torture program appears to have continued despite such public views. At least one interrogator came forward to say that he believed that the waterboarding was torture. The patently false assurance that waterboarding torture is lawful would work against those claiming this defense.
Having said this, no one seriously expects the torturers themselves to be prosecuted. The debate surrounds high-ranking officials like Bush, Cheney, and others who approved and ordered torture. Moreover, there will be difficult issues like statute of limitations questions. By reportedly stopping the torture program in the second term, the Administration guaranteed that much of the statutory period would be exhausted during its administration. This is one of the problems with the effort of democrats to hold a commission that will take years to determine if there should be a criminal investigation into the torture program.
One of the more interesting questions will be the war crimes element. Even if Bush, Cheney et al are not prosecuted, they will have a status not unlike General Augusto Pinochet. While mainstream media in the country continue to refer to waterboarding as an “interrogation technique,” it is clearly torture under international law. When these officials travel, they could find themselves hounded by demands for their arrest.
In the end, the entrapment by estoppel defense would make for some interesting legal arguments in court. However, the key to have that debate in court and not some commission. If the Bush administration wants to argue that torture is legal because it said it was legal, they can have their ignoble moment. As with Nuremberg, Bush officials will claim that they were just following orders and had no obligation to note the public outcry from experts or the patent war crime involved in torture. Such a proceeding would be an equally ignoble moment for the democrats, who barred any serious investigation of torture for years.