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 The so-called Torture Memo signed by Alberto Gonzales was rescinded.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.
Let’s get serious. After the Jim Brennan affair & after Obama’s vote on the FISA Bill, I think we should all know where our President-elect stands on human & constitutional rights. If we see anything more than a blue ribbon commission whitewash –co-chaired by Jack Goldsmith– we’ll be lucky.
Monday 17 November 2008
by: Lara Jakes Jordan, The Associated Press
‘Asked this weekend during a Vermont Public Radio interview if Bush administration officials would face war crimes, Senate Judiciary Chairman Patrick Leahy flatly said, “In the United States, no.”
“These things are not going to happen,” said Leahy, D-Vt.’
Mr. Appleton has convinced me that any ‘judicial lawyering’ can and should wait until after the revelations of misconduct that can occur from any ‘legislative lawyering.’
I meant to add, and the complete outing of the truth!
Mike,
I don’t think we’ll get prosecutions in the US so I will hope for the kind of hearings and a vigorous press that you speak of. Happy New Year!
Jill, I agree with you that Congress as a whole has proven to be a gutless wonder over the past eight years. I am not at all happy with the Democratic leadership over the past two years either. Sen. Reid and Rep. Pelosi will have to show more gumption once Congress reconvenes or nothing will happen. I also expect Pres. Obama to take an aggressive approach in meeting with congressional leaders to jumpstart the investigative process, but his plate will be very full, thanks to all of the other parts of the Bush legacy he will be left to sort out.
There is no doubt that Republicans will attempt to spin the facts, whether the proceedings are criminal or congressional. However, Congress has extensive subpoena powers, as well as the ability to immunize witnesses. In addition, Congress is not bound by the rules of evidence and public hearings can open windows into matters that would never be heard in a courtroom. Congressional hearings are also more “user friendly” in the sense that testimony will be more understandable and not subject to constant objections, arguments between lawyers and courtroom time-outs. Questions will be asked by a number of individuals, making it more difficult for lawyers to prepare witnesses in advance. And with majorities in both houses, Democrats can reject Republican efforts to scuttle hearings or water down subpoenas. Republican leaders will hardly be in a position to urge deference to the Bush executive branch while simultaneously criticizing efforts by the Obama executive branch for an open and complete investigation.
I am old enough to have watched the Watergate hearings and was riveted for days on end. I came away convinced that we learned more from those proceedings than would have been the case had the investigation stayed within the Justice Department. Criminal prosecutions did ensue, and might in this case as well, but the truth eventually came out.
One final point. Congressional hearings will receive extensive press coverage and will encourage reporters to follow leads and travel into related areas, all without risk of being subjected to gag orders or other forms of judicial restraint that are sometimes imposed to protect the integrity of a trial.
I know that my views are not satisfactory. My sense of justice wants all of the wrongdoers to answer in accordance with the law. On the other hand, my sense of justice is routinely thwarted by daily realities. What I want first and foremost is the truth. That at least can neutralize the pathetic efforts already underway to rewrite the history of the past decade.
Martha,
Has this thread on war crimes got you all upset?
Mike,
I haven’t watched enough reruns of Law and Order to address your point about the rulings of the court in favor of war powers and the unitary executive, should this go through a criminal prosecution. I’m hoping someone who does know these things will put their two cents in one way or the other. One year ago I would not have had any doubts concerning it, but I’ve since seen even conservative courts start to rule against unchecked executive power.
I don’t see a commission with teeth, or even a commission of any kind as a practical response. David Cole writes about this in the latest NY Review of Books (he takes a similar turn to what you wrote although he seems to believe most high level defendents are protected from US prosecution under current law). Cole writes: “We cannot move forward in reforming the law effectively unless we are willing to account for what we did wrong in the past. The next administration or the next Congress should at a minimum appoint an independent, bipartisan, blue-ribbon commission…” If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and most importantly, a charge to assess responsibility, not just look forward.”
Cole earlier writes: “On December 11, the leaders of the SASC…released a…report…that concluded that Donald Rumsfeld and other top Bush administration officials had ‘solicited information on how to use agressive (interrogation) techniques, redefined the law to create the appearnace of their legality, and authorized their use against detainees.’ Most of the report was classified, however. And apart from this, Congress has largely acted symbolically, avoiding any real measures to enfore accountability.”
My question is, why would Congress start to act differently? What’s their incentive? As to cheney, bush etc. and their underlings–haven’t each of these people shown their ability to avoid even minimal accountability to any commission (they dragged their heels on the totally toothless 9/11 commission)? They don’t even bother to show up at Congressional hearings. If they do show up, you’re going to need a court order to administer Aracept before their testimony.
They’ll still say it’s a witch hunt. We’re going to be fighting a propganda blitz no matter what. We’re fighting it right now. I think we’d honestly have better luck trying for a straight up prosecution than to watch the dithering of setting up, let alone trying to get, a functional commission. I’d like to see cheney, bush and friends get something they denied our prisoners, a fair trial.
Mike,
Thank you for your thoughtful reply. I knew if anyone would be able to give an excellent argument for a non judicial accounting it would be you.
I have to think about what you wrote. Are you really certain that a public accounting wouldn’t be spun by the principles in the same way you describe them doing during a criminal trial? That’s one question that comes to mind right away for me.
You must have done a good job in your posts because we have trolls trying very hard to keep off this topic! Thanks again.
Jill
Gosh, Jill, but you do ask tough questions. On a visceral level, of course, I would like to see the whole bunch strung up, but my concerns are practical. My first concern is that people have short memories. An investigation and prosecution will take years and entail numerous appeals on both procedural and substantive issues. Over the course of time, people will become weary of the process, and we will witness a growing conservative chorus criticizing the prosecution as a politically motivated effort to destroy the lives of aging men and women whose only crime was to protect the country from terrorism (you could probably write the script). I believe that it will be virtually impossible to prevent the entire effort from being portrayed as a series of “show” trials. By the time the process is finished, the important constitutional principles which we seek to vindicate, principles which are not as widely understood as we might like to believe, will be lost among allegations of political witch hunting and the defendants will be increasingly perceived as patriotic victims.
My second concern relates to the likely candidates for prosecution. We have learned from Watergate and Abu Ghraib that subordinates and those who actually implement illegal policies are the easiest targets, while layers of bureaucracy tend to protect the policy makers. Plea deals and jail time for minor players will not serve the primary purpose of reining in the executive branch.
Third, criminal proceedings, especially if they involve the important figures (Bush, Cheney, Rumsfeld and their immediate aides),
could produce some rulings on presidential authority that we may not like. I believe that we need to remember that the actions of the Bush administration occurred within the context of a war, however false its initial justification, an area in which the courts justifiably fear to tread. A criminal courtroom is the worst possible venue for deliberating issues relating to presidential war powers and the unitary executive theory.
Finally, the best way to bring to heel an out-of-control executive branch is through political means. If president-elect Obama makes a genuine commitment to a complete, and public, accounting of the conduct of the Bush administration, the full extent of the abuse can be widely disseminated in a manner which will educate the average person to the perils posed by Bush and Cheney’s views, expose the unitary executive theory as fundamentally flawed and provide a framework for legislation to restore the balance of power. It will simultaneously provide the rest of the world a lesson in how truly representative government corrects itself without resort to coups and executions and reaffirm our commitment to core constitutional values.
Anyway, that’s what I think.
Mike,
I don’t think it would be divisive to prosecute these people for war crimes. In fact, I think the opposite is the case. You are a very articulate person and I would be interested in why you believe it would be so and even if so, why that outweighs prosecutions and restoring the rule of law.
Any defense based upon good faith reliance on the legality of one’s actions or on advice of counsel lacks credibility in the context of this case for several reasons. First, the Bush administration politicized the Department of Justice by systematically filling it with lawyers chosen on the basis of ideology. Second, the administration took great pains to devise strategies intended to prevent judicial review of its actions. Third, the decision to utilize extraordinary intelligence measures, such as “enhanced interrogation techniques,” was made with prior knowledge, either actual or constructive, of its questionable legality. Opinion letters were then requested to provide legal cover from lawyers who had already confirmed their commitment to administration aims, regardless of the obligations imposed by their oaths as attorneys, and who were accordingly prepared to give the president what he wanted. Where once the legal profession could boast of men like Archibald Cox, Eliot Richardson and William Ruckelshaus, George Bush and Dick Cheney confirmed their disdain for the primacy of law by infecting the republic with the opinions of Alberto Gonzales, John Yoo and David Addington.
Having said all that, I agree that prosecution is highly unlikely. Despite the ample legal justification for criminal proceedings, they would be viewed by many as political paybacks and would promote divisiveness at a time when we can ill afford it. However, a full and thorough investigation is important for moral, rather than political, reasons. It is essential that we reestablish in the eyes of Americans and the world at large that the excesses of the Bush administration were corrupt exceptions, that this country remains committed to the rule of law and that barbarism is not an acceptable weapon in the defense of freedom.
Glenn Greenwald has a revelatory entry on torture prosecutions today. Just one sample below:
“UPDATE: Michael Mukasey, who refuses even to say whether waterboarding is torture and has repeatedly acted to protect Bush officials from prosecution, appeared two weeks ago at the U.S. Holocaust Memorial Museum and actually spoke these words (h/t sysprog):
It serves as a daily reminder to the leaders of the free world, and to the many visitors to our nation’s capital, that law without conscience is no guarantee of freedom; that even the seemingly most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .
Mukasey actually had the audacity to approvingly quote from Robert Jackson’s addresses to the Nuremberg Trials, at which this central proposition of law — now explicitly renounced by America’s political and media establishment — was established:
The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power . . . .”
Where do we get these people?
Mespo wwrote:
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.”
—–
I’m sure they’ll try, my friend!
How do you spell ‘conspiracy’? As JT said on KO many months ago
-‘not just ‘torture’, but ‘a torture program’…
http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html
Memo Offered Justification for Use of Torture
Justice Dept. Gave Advice in 2002
So there might be some hope….
Mojo,
I stand corrected. How could I forget Gonzo??
rafflaw –
That’s a terrible idea … you left out Alberto “I don’t recall” Gonzalez.
Buddha,
I am with you. Without the rule of law being restored, how can Americans trust any future President? The myth called the Unitary Executive is a false reason for breaking the law. Under the Bush/Cheney/Addington idea of the Unitary Executive, President Obama could pick up Bush and Cheney and Addington and put them into Gitmo without any recourse for over 5 years! Wait a minute, that sounds like a great idea!
I have the patience of stone. That being said, no stone waits forever. The rule of law must be restored and the guilty punished. Preferably one way and not the other, they will be.
rafflaw,
I hope you and Wayne are correct, but don’t personally hold this opinion. I have been very struck with the “news” lately. It is even more vapid than before while so many important issues go completely ignored. It is my belief that the upper classes getting militant would break through, even the most irresponsible “reportage”. The press’s slogan right now should be: “News, it’s the new vapid!” ARRRGGGG!
I hope your grandchild is doing well, along with his mother and the rest of the family. Congratulations again, to you all. As Lindy Lou said, he will be very loved!
Jill,
It does seem that the troll army comes out when we are talking about holding the Bushites responsible for their crimes. Waynebro, I am also hoping that Obama is not talking much about the investigation and prosecution of Bush administration in order to not tip his hand.