Self-Fulfilling Legal Prophesies: Bush Defenders Attempt to Use Entrapment by Estoppel To Fend Off Criminal Prosecution

torture -abu ghraibMy 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 The so-called Torture Memo signed by Alberto Gonzales was rescinded.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.

72 thoughts on “Self-Fulfilling Legal Prophesies: Bush Defenders Attempt to Use Entrapment by Estoppel To Fend Off Criminal Prosecution

  1. On NPR’s Talk of the Nation today Tom Gjelten and “the host”, Niel Conan, derisively repeted that there was a group within the democratic party who considers torture, rendition, nsa spying etc. “hot botton issues”. Apparently if these things can be trivialized enough and the people who care about them marginalized–well, it’s all good for these types. ARRGGG!!!

    Also, yesterday Alternet had an article on how the army field manual still does allow torture. It should still be there.

  2. JT was just on NPR’s Talk of the Nation on this topic. Again he was passionate, well informed, quick on his feet and dead on! He answered every objection of his opponent who I believe, was not prepared to go up against someone who had thought so deeply about this issue and was equally eloquent and respectful.

    “The Legacy Of Bush’s ‘War On Terror’

    Audio for this story will be available at approx. 6:00 p.m. ET

    Talk of the Nation, January 12, 2009 · Some people are calling for President-elect Obama to investigate programs associated with the torture of detainees and warrantless surveillance. But others caution to leave history to judge the Bush Administration. What is to be gained in prosecuting the outgoing president?

    Guests:

    Charles Fried, professor at Harvard Law School and author of the op-ed “History’s Verdict” in The New York Times

    Jonathan Turley, professor of public interest law at The George Washington University”

  3. mespo,

    I only heard snippets but he seemed to be arguing that cheney and bush should not be prosecuted because they were only making decisions to protect our nation. I’ll try to look up his article and maybe that we’ll give us an idea until we can hear the program in full (about 20 mins.) after 6:00 p.m.

    I just took a look at his op-ed and I believe I have Fried’s argument correct. Here’s an excerpt:

    “Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf…

    If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.”

    Glenn Greenwald dispatches this argument as well in his column.

  4. Glenn Greenwald’s current column addresses this issue, to include Obama’s latest stance. It contains a statement by the ACLU. His earlier comments directly speak to the “they were just protecting us” argument of Mr. Fried.

    ttp://www.salon.com/opinion/greenwald/

  5. As a realist I realize that there are consequences to be paid for prosecuting these criminals. There will also be the blow back from
    corporatism as represented by the MSM and Washington establishment, that will create an unpleasant firestorm for those prosecuting Bush, et. al.

    All that being said, I believe in my gut that treason has been committed against my country, innocent soldiers and civilians have needlessly died, careers of fine people have been ruined, the lives of average Americans have been made bleak and the honor of our country has been besmirched by abrogation of the sacrosanct Geneva Conventions. There must be retribution for these acts or they will occur again in the future and their effect will be even worse and cause a strangulation of any democratic aspirations we may hold. It must be exposed, tried, punished and stopped now.

  6. Some the earlier posts ignore the radicalism of the Torture Convention, under which actual innocence appears the only defense. Thus, advice of counsel or directives or advice of superiors would, at most, be mitigating factors. The Torture Convention addresses directly those who torture–recognizing full well that ordinary people will be torturing each other. It commands them to stop, it implores them for the sake of their common humanity. None may plead ignorance.

  7. O’Dumba has joined the club. The club is the Freemason club that is made up of Skull & Bonesmen and led by Jew bankers. Neocons and Bilderbergers are club members also.

    The goal of Freemasons is to gain power and through power make as much wealth as possible. They are addicts of a sort. Former drug and alcohol and sex addicts, now primarily power addicts. They seek to control everyone and don’t mind using torture and fascism to obtain their goal. They love dominating others and hurting them.

    The way a Freemason makes wealth is via HUMAN SACRIFICE and STEALING MONEY, it’s called PASSING THE VEIL.

    On 9/11 the veil was symbolized by the TWIN TOWERS. The PORCH of the Towers was Silverstein’s Building 7 where the human sacrifice was masterminded. When they pulled the Towers, 3,000 people were sacrificed to the money gods. On 9/11 the planet Saturn was in Gemini (a Masonic celestial meaning). Masons believe Blue men descend from the star Serius (Why so Serious? message in the 9/11-themed film “Batman: the Dark Night.’ Batman is a Jewish character concept.) The Twin Towers were destroyed and the Blue men’s descendants (those in power in commerce, politics and in religion who united against us as a cabal) were enriched by stolen money (global stock scandals, robbing the Treasuries of many nations, bank robbing (another theme of the Jewish film “Batman”). Passing the Veil means that earned your riches by killing others. That is what 9/11 was all about.

    Jews control Hollywood and mock us through their many subversive films like “Diehard with a VENGEANCE etc.” starring a Jew who married a Jew). “Fight Club” also has 9/11 themes with planes, buildings falling, a secret society and bank robbing.

    Jews play victim but their are victimizers who’ve used American leaders as tools by forming FRATERNITIES such as Skull & Bones founded by the Jew Senator John Kerry’s ancestor on Yale University property.

    JFK warned us about secret societies and was killed for it. He also tried to fight the Jewish bankers as Lincoln did before they killed Lincoln.

    What happened leading up to, during and after WWII are the events that occurred around the 9/11 attacks. It’s the same people doing it. Former Secretary of State, Kissinger, leads an unholy cabal who seek wealth in exchange for human sacrifice aka faux war. Same plan, new decade. It’s all about money. Israel plans to be the economic center of the world (a Torahnic blueprint of global subversion Kissinger et al follows) whereby “money central” is made to be Jew-rule-salem (burning witches) aka Jerusalem. Jew bankers united with Freemasons to rule by deceit and fascism. Masonic symbols are on all US currency. US currency is the most favored globally. People from 40 nations died on 9/11 and most, if not all, leading nations’ people were robbed on 9/11 via Insider Trading committed by those addicted to power in the unholy cabal.

    Truth be known

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