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 The so-called Torture Memo signed by Alberto Gonzales was rescinded.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.
If you talk about war crimes you will get trolls. I always liked that book, “Jennifer Government”. It’s very interesting and applies to today’s situation of rampant privatization, one example of which is global mercenaries.
I am watching all this with alarm. The administration, ably assisted by many in Congress and the “press” is obviously trying to put the fix in on torture prosecution. It’s difficult to counter all the propaganda when it’s coming from so many sources. It’s quite similar to the run up to the Iraq war. False intelligence is being disseminated as “the truth”, our motives are “noble”, and anyone who questions this is “obstructionist”, perhaps even a traitor. It’s clear that the tools for manipulation have moved far beyound what we’ve seen in the past and somehow we citizens need to figure out what they are doing, how they are doing it and most importantly, how to counteract it.
The old techniques of protest no longer work. Some of the largest antiwar demonstrations of all time took place before the Iraq war. They were barely covered. Many experts repetedly spoke out, saying there were no weapons, this will be a disaster. They also were ignored or fired by cheney.
During the bailout, people flooded their senators and house members with a resounding, “NO” (as Ted Stevens might say). But the fix was in and now well funded firms ring D.C. with the expressed purpose of gaining access to the handouts for the wealthy (some estimate 7 trillion has been passed out, largely unnoticed under special deals made by Tresury. Meanwhile, a full 300 people have refinanced under “Hope for Homeowners”, food banks are emptying, and unemployement rises.
So I’ve really been thinking that we the people have to do something; but we have to do it with new techniques, or we are lost. One thing I believe must change is the upper middle and upper class have to get militant. It’s pretty clear that the classes below this level can protest all they want but the political elite is bought off by big donors or, in the case of torture, is completely complicit. I think if lawyers who opposed torture would march the way lawyers marched in Pakistan, it could make something happen.
I am very grateful for all the effort so many attorneys have put towards ending the abuse of the prisoners of the “War on Terror”. This work has been instrumental in keeping the few checks over unfettered presidential crimes we have in place. This work has set some free and ameliorated the situation of many. To every attorney and every individual who has spoken out, demonstrated, given time or money I say thank you. Each person’s action has made a real difference.
For those of us in the middle class and below, we have to get moving in another way. If the upper classes were to use more traditional forms of protest, such as mass marching on the Capital, I believe this would still be effective, just as it was when the middle and upper classes marched against the Vietnam War.
I don’t know about the rest of you but if I were the “President elect” and I planned on investigating and or prosecuting the current President, I probably wouldn’t tell him about it until after I’d taken over. If you know what I mean.
Independent Perspective,
I do agree with your description of the Media as being AWOL during the Bush years. However, where is your evidence that Obama is not planning on leaving Iraq? Def. Sec. Gates has already informed the generals that the 16 month departure is the rule and Gates also requested the plans to close Gitmo. I don’t know why you are suggesting that the mere selection of Hillary as Secretary of State is evidence of Obama staying in Iraq?
I really don’t see how Obama proceeds in his administration without some kind of prosecution of the Bush Administration? The wiretapping and other illegal acts, and something else nobody really mentions very much but was political paraded about on C-Span quite a bit was those crimes committed but those unbid contractors in Iraq. The horrorable crimes going on with Bush’s unbid contractors in Iraq, oh my word, nobody ever mentions those acts. I’m truly amazed that nobody ever talks about the real war profiteering that was going on at taxpayer expensive no less, from companies who contributed to the Republican Party and the current Administration, and thus got away with completely fudging their books and doing outrageous criminal acts.
Bush was so criminal on so many levels and our national press and media members did nothing except to focus on petty partisan issues day in and day out during entire Bush regime. Bush has turned the country into a true Banana Republican, and not something we could joke about, so how do we, as nation move on from these acts, all the utter corruption of our nations highest government offices unless something is done about the huge criminal offenses that took place?
Nobody can doubt that our media is no longer a function part of our democracy, perhaps it’s why so few US citizens falled to call for Bush and Cheney’s impeachment, and certainly the Republican Party is not exactly running in terror or anything like that since Bush turned the country into complete third world anarchy, but then it seems too there are an awful lot of US lawyers out there that don’t seem to mind that much that our nations highest US government offices have become so horribly corrupt. Conservative folk used to be the lynchpin of US laws, or so I used to think, but not since Bush came to office, do they seems to care about any laws except ROE v. WADE (abortion issues) or gun laws, and so any other law be damned. Heck, even the Catholic Church is still embracing Republicans as it seems that torture is no problem for the Pope, himself, apparently. And it just looks to me like Obama is going to try embracing all of Bush’s policies while merely trying not to appear to be embracing Bush’s lawlessness, depending on, once again, a worthless pack of press members from today’s opinionated, slated, cheap comment press world. If anybody really listens to Obama, he doesn’t sound to me like he is even planning on closing Gitmo down, not when you really listen to what he is saying. Plus, I don’t think, after picking Hillary as his Secretary of State that Obama is really even planning on leaving Iraq and our so called “economic security”. And all those JOBS Obama is going to create will have the magically be paid for with funny money, added taxpayer borrowing on top of Bush $ 700 billion bailout that was handed over to the banks – no re-regulation required.
Jill
1, December 27, 2008 at 5:00 pm
“In the case of bush and cheney I don’t see how this can be argued. There are eye witnesses to the fact that these two first devised a stategy and then kept dismissing anyone who told them what they were doing was unlawful”
This is what Professor Turley calls a crime “hiding in plain sight”.
My question Mojo is, how do we do something? I want to see prosecutions for these horrible crimes. I’m not certain how, as a citizen, I can try to make this happen. I’m going to keep banging on my pots and pans but so far that hasn’t been enough to make a compliant Congress/president elect get moving. I’m not giving up, even if it doesn’t look good, but I am completely open to ideas. To outmaneuver these people will take some doing!
Very true FFLEO –
Just as we’ve discussed in prior posts the us-against-them mentality that can take hold among some in the law enforcement community, so too could that mentality apply in many cases to those who hold power in Congress and the Senate. It far too often seems like one big, happy family, where nobody seriously pursues justice for crimes that seem to have been committed, if those alleged crimes were committed by the politically connected or the financially powerful. There is some theater, people make strong statements to the media, and a week goes by and the story gets buried. Unfortunately the media believes (and in many cases correctly) that we Americans have a pretty short attention span.
Mespo quoted it right when he wrote, “All that is necessary for the triumph of evil is that good men do nothing.”
“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 the case of bush and cheney I don’t see how this can be argued. There are eye witnesses to the fact that these two first devised a stategy and then kept dismissing anyone who told them what they were doing was unlawful. For example, cheney and addington were in the basement of the WH on 9/11 discussing how to detain prisoners at Gitmo and around the world, so they would not be subject to US law/protections. The Office of Special Plans was formed under and reported to d. cheney to make certain only “the right” material was collected and publically distributed. This legal argument is exactly the same as the Downing Street Memo where, “the intelligence was being fixed around the plan to go to war”. This has been their strategy at every point, legally or otherwise.
They most certainly should be prosecuted. Like many, I doubt this will happen in the US, but hope it may take place internationally.
Gaining cynicism with age is as assured as age-related weight gain.
The principal reason I–as a conservative Republican–voted for Mr. Obama was that I trusted he would restore justice to our democracy.
If he does not punish the Bush Administration and if his ‘change’ mantra was a falsification just to gain the presidency, my complete cynicism will overpower my civic duty and my solemn vow to vote in another election.
The problem I have with not prosecuting these offenders is pretty much the same problem most people have with not prosecuting someone who commits a crime. It encourages others to do so.
Just recently we’ve seen Vladimir Putin “rear his ugly head” into not just Georgia, but he’s actually started to intrude into our back yard as it were, by placing warships and fighters in Venezuela. I realize the White House is acting nonchalant about it and so far it seems to be merely a token strategy, but we don’t know that. We don’t know whats being brought over in the cargo holds of those ships. It’s a sign of aggression, one that wouldn’t be made had we never started messing around in Russia’s back yard. Invading Iraq, Afghanistan, putting missiles in Poland. These are all moves that from the Russian point of view, essentially thumbs our collective noses at them.
The doctrine of Preemptive war was a doctrine of Adolf Hitler and was a subject of condemnation at the Nuremberg trials. Torture, rendition, also condemned as doctrines of the Nazi’s. Yet Bush and Cheney have made steady consistent arguments for all three of these doctrines and have committed all three of them.
To me it seems that if we don’t do something to show the world that not only are we not going to do these sorts of things anymore, but will hold accountable those who did, then I fear the rest of the world may decide to do it for us.
Regime change can happen anywhere, once the precedent is established.
The problem I have with not prosecuting these offenders is pretty much the same problem most people have with not prosecuting someone who commits a crime. It encourages others to do so.
Just recently we’ve seen Vladimir Putin “rear his ugly head” (thank you Sarah Palin) into not just Georgia, but he’s actually started to intrude into our back yard as it were, by placing warships and fighters in Venezuela. I realize the White House is acting nonchalant about it and so far it seems to be merely a token strategy, but we don’t know that. We don’t know whats being brought over in the cargo holds of those ships. It’s a sign of aggression, one that wouldn’t be made had we never started messing around in Russia’s back yard. Invading Iraq, Afghanistan, putting missiles in Poland. These are all moves that from the Russian point of view, essentially thumbs our collective noses at them.
The doctrine of Preemptive war was a doctrine of Adolf Hitler and was a subject of condemnation at the Nuremberg trials. Torture, rendition, also condemned as doctrines of Hitler and the Nazi’s. Yet Bush and Cheney have made steady consistent arguments for all three of these doctrines and have committed all three of them.
To me it seems that if we don’t do something to show the world that not only are we not going to do these sorts of things anymore, but will hold accountable those who did, then I fear the rest of the world may decide to do it for us.
Regime change can happen anywhere, once the precedent is established.
I’m afraid I’ve become pretty cynical over the years about the efforts of either party to seek justice. We certainly haven’t seen much from Pelosi on the Iraq war after the country made it’s feelings known during the ’06 congressional elections. It was ‘thank you, and now watch us melt away into the background …’
At most I expect we’ll see some more ‘congressional theater’ like we’ve seen over everything from the war money accounting scandals to the housing lender scams, and from the Wall Street bankers hearings to the big three auto-maker bailouts. What do we always hear from the MSM?
They are on The Hill ‘getting grilled’ by lawmakers. Oooh, they’re getting grilled! It sounds bad, but all it really amounts to is congressional leaders publicly admonishing fat-cats for being naughty, and then nothing else. There is much head-shaking, and hand-wringing, and eye-rolling and exasperated sighing from The House as the exclaim, “I’m shocked, shocked!”
And in the end nobody (certainly nobody of any prominence) gets punished or does a day in jail. There may be some nice ‘theater’ so the American public can be appeased and feel that ‘something’ was done, when in fact it’s most likely that nothing will be done at all.
Just my cynical two-cents.
I only slightly disagree with Professor Turley in terms of the defense strategy here. I think the defense could also rely on the mistake of fact or alternatively the affirmative “public authority” (PA) defense found inter alia in United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The elements of mistake of fact are less stringent than the entrapment by estoppel defense (a cousin to the “public authority defense) since there is no element of assurance. Under the mistake of fact scenario, the defendant after proving initially that he mistakenly believed he was performing the crimes in cooperation with the government, may then offer evidence that he lacked criminal intent in a mistake of fact type defense. In US v. Anderson the Court permitted an instruction which held the “defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.”
Under the affirmative PA defense the defendant need only prove that he knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. I think Yoo’s memo would likely not qualify as “actual authority” but a directive from the President or VP –as has been alleged– likely would so qualify.
To summarize, I think the defense has three arrows in its quiver rather than one.
Mespo,
I didn’t see your posting until after I wrote my previous response. I am also looking for that one Honorable judge who will stand his/her ground and protect the Constitution. I will be pleasantly surprised if any prosecutions are undertaken.
Prof. Turley,
I agree that the real prosecution possibilities are with the authorities who “authorized” the illegal torture. I include Mr. Yoo in that group along with the entire group who worked out of the White House to authorize the torture. That group included Cabinet members so any prosecution,if timely, would be unprecedented. I also agree that it is not likely that any domestic prosecutions will take place. The so-called Truth Commissions that have been suggested may be the closest we will get to putting the felons on trial. I may be satisfied with the commissions if the Dems also deal with the FISA situation and repeal the recent amendments that attempted to absolve the telecom companies for their complicity in the illegal wiretapping.
JT:
Just a we predicted on this blog some time ago, the rats are circumventing their Waterloo with a defense of government permission. Hell we even cited the US Attorneys Manual for them. We talked about this in the context of the Yoo memos and it seems that the bad guys are adept at CYA. This is not a case of some poor sap entrapped by government misfeasance into committing a crime that he reasonably believed to be furthering the government’s interests. This is pure evil sanctioned at the highest levels by guys itching to do it despite its demonstrated ineffectiveness.
I certainly understand the statute of limitations issues, but this was conspiracy that continues to this day –now under the guise of deflection as the tobacco’s company used for years trying to convince us that the obvious wasn’t true. As for the torturers being exempted, I find that repugnant as well. The “Superior Orders” defense didn’t fair well at Nuremberg and its shouldn’t fair well today either:
“Nuremberg Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
Since we don’t employ slaves in the CIA, such a moral choice was always available.
Let’s see if Edmund Burke’s remarks hold true: “All that is necessary for the triumph of evil is that good men do nothing.” All we really need is one honorable judge.
Simon AKA Moron:
If you have read this blog before you would know that he would protest just as loudly if Obama commits war crimes as when Bush does it.
The only difference is that Obama is not likely to do it.
AIR STRIKES ON GAZA…
BLOODIEST DAY FOR PALESTINIANS IN 20 YEARS…
REACTION…
Arab world slams Israel…
100 targets hit….
Panic…
Escalate?
HAMAS THREATENS TO UNLEASH ‘HELL’
Are we all breathlessly waiting for Jimmy Carter, Keith Olbermann, & Rachael Maddow to denounce Israel for defending itself again?
Obama will allow & use the same programs for coerced information as Bush has.
You know it and you know you won’t complain when he does.
Move along Turley, and for God’s sake…LOSE SOME WEIGHT!