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 The so-called Torture Memo signed by Alberto Gonzales was rescinded.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.
From my experiences within and outside the federal government, the emotional and financial toll exacted on a whistleblower by the government is never fully compensated for even if the person who put honesty and ethics before his career and personal life is fully exonerated by the facts. There are many changed aspects of life that humans just cannot undo. Mr. Tamm is a courageous man but his life has forever been altered.
From the Greenwald/Salon article link Jill provided:
{Quote}
“Meanwhile, the only person to pay any price from this rampant lawbreaking — Tom Tamm — is the one with infinitely less power than all of them, the one who risked his job security and even freedom to bring to the nation’s attention the fact that our highest government officials were deliberately committing felonies in how they spied on us. Those who broke the law and those who actively enabled it — the Cheneys and Haydens and Rockefellers and Pelosis and Harmans — all protect one another, and have virtually every political and media elite righteously demand that nothing be done to them.
But there is not a peep of protest over the ongoing, life-destroying persecution of the former DOJ lawyer whose conscience compelled him to do what those cowardly Democratic leaders would not do: take action to uncover rampant criminality at the highest levels of our government.”
{End Quote}
Mike,
Please, please stop making sense when I want neocon blood. I have to admit that having the truth slowly exposed would be a wonderful second choice. Still, after the talk about the dance of the 7 veils in the time-space continuum, I couldn’t help but wish that Salome could do her thing around the head of a neocon instead of John the Baptist.
Jill,
Thank you for the link!! I have to get back to work, so I’ll be looking forward to this later tonight.
Here’s one more interesting angle on the whole thing from glenn greenwood’s column of today. The wistleblower who disclosed the illegal spying on Americans is having his life destroyed by the “justice dept./FBI”. While the political elite call for leaving those at the top free to go about their business w/o consequence, they are offering no such protection to this man.
http://www.salon.com/opinion/greenwald/
FFLEO,
Thanks for hearing it out. He does agree with Mike on bush and cheney and they are very likely both correct. It is nice to hear all the different options laid out so well.
Jill,
Mr. Sands gave an extremely intelligent overview of the possibilities of tribunals. He also stated, as Mike Appleton did, that Bush/Cheney will most likely avoid prosecution in the U.S. and worldwide. I hate to hear that assessment; however, Mr. Yoo et al. are less likely to avoid such prosecutions if the facts are there following extensive investigations.
I think that those 38-plus minutes of interview are well worth the time, even if simply to listen to an intelligent man who spoke with clarity; in fact, I am going to listen a second time. Thanks for the link Jill.
Gyges: I agree.
Lindy Lou, You have made a worthy point, and one that Jill has attempted to (gently) pound into my thick skull on this issue. I watched all of the Watergate hearings and wanted nothing more than wholesale prosecutions and public trials at the time. On a visceral level, I feel the same way about the Bush administration. But here’s the problem. There are massive problems facing the incoming president. I do not remember economic conditions this perilous at any time during my life, and I believe that conditions will worsen through a good part of 2009. I believe that the public wants Pres. Obama’s focus to be on the economy as a first priority.
For reasons which I have previously expressed on this topic, I believe the time available to Congress to deal with the legacy of lawlessness over the past eight years should be devoted to thorough and well-publicized hearings. Exposing what actually transpired to the light of day will do more to re-establish in the eyes of Americans, and, just as importantly, in the eyes of the rest of the world, our commitment to human rights and the rule of law, than miscellaneous prosecutions of minor characters. I plan to listen to the Fresh Aire interview, but I cannot conceive of any circumstance under which people like Bush and Cheney would ever be prosecuted for war crimes.
FFLEO,
I’ve said this before, but think it’s worth repeating. I never vote for party, I vote for the individual. I get the feeling you probably do the same thing.
I think one of the leading causes of the corruption in the upper levels of politics is because most people vote to see their team win, rather than on individual merits and how closely the candidates views and actions (especially actions) match up with their own beliefs.
LindyLou,
Check out this link. It’s about 40 mins. long but really interesting. It addresses how things may proceed. Mr. Sands is very specific about options and how they would work out. If you get the time to listen to it, I’d like to hear your opinion. It’s from Terry Gross and Mr. Sands has participated in war crimes tribunals. It’s the first time I’ve heard that level of specificity both about the crimes and proceedures for accountability, both political and legal.
http://www.npr.org/templates/story/story.php?storyId=99061358
LindyLou,
Party affiliation must be irrelevant when meting out violations of rules, regulations, and laws.
I will always be a Republican—although secondarily to being a U.S. citizen first—based on the Republican philosophy of limited government and the idea that citizens must do all that they can to be self-sufficient without subsisting on the dole from government.
However, given the dole outs of well over a trillion dollars to the stock market criminals, banks, and others, these current day pseudo-Republicans’ philosophies deserve complete and final repudiation because those are worse than the true Democrats’ philosophies have ever been.
FFLeo, I often agree with you, even if we are at opposite ends of the political spectrum. So many conservatives during these times have been steered away from the law in order that the neocons could have their way.
During one of the TV interviews, the Professor talked about a collective yawn when it came to prosecuting Cheney. The yawning faces were the politicians who could have done something about it. There have been many, many of us ordinary folk who’ve on blogs arguing about prosecuting Bush/Cheney for years. We were marginalized as kooks, the 2% far left, etc. Remember, we were all supposed to believe that the Bush administration was doing everything legally and in the best interest of all Americans, and if you questioned that, you were a terrorist sympathizer.
Even Russ Feingold hasn’t wanted to move to hold Cheney/Bush accountable. He might finally be coming around, though.
What can the people do when Nancy Pelosi holds impeachment off the table and states she can’t find anything for which to prosecute the administration, after Kucinich has spent 2 hours going through his list of offenses that should be prosecuted? Cards, letters, and phone calls only mean so much, especially when the elections are over and the incumbents remain in place.
LindyLou,
I think that is a very fair and accurate point.
LindyLou,
I too was disgusted with Ford’s pardoning of Nixon for the same reasons and I am a Republican. Even after egregious breaches of the U.S. Constitution’s provisions, all branches of government are content to slap the others on the back— and not even on the wrist— and say ‘no need to point fingers’ because we have the public’s business to attend to! Mr. Obama stated the same “we won’t be pointing fingers” phrase this morning in his economic roundtable.
What politicians do not understand is that the public wants and needs accountability and taking legal action against corrupt public servants is the remedy of atonement for breaches of the public trust.
Mike,
“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.”
But not having criminal proceedings also produces rulings we don’t like. Haven’t a lot of the abuses of power by Cheney/Bush been enabled by the fact that Nixon and his administration were let off the hook?
Not everyone’s memory is short for that kind of thing. I was heartsick when Ford announced that Nixon would not be prosecuted. In those days I was not especially involved in politics, but the excuse that it would keep the nation divided seemed like a bunch of baloney to me, even then.
Every time these elected officials get away with something, it weakens the law and enables worse abuse.
Here is the link. It is well worth hearing out.
http://www.npr.org/templates/story/story.php?storyId=99061358
I just heard this very informative interview with Pillipe Sands by Terry Gross. It pulls together many of the questions and thoughts presented by commentators and of course JT’s post. I’ll put the link in the following box.
“Phillipe Sands Considers A Legacy Of ‘Torture’
Audio for this story will be available at approx. 3:00 p.m. ET
Philippe Sands argued that U.S. interrogation policies were issued from the top down in his 2008 book, Torture Team.
Fresh Air from WHYY, January 7, 2009 · Although the Bush administration has stated that the interrogations techniques used at Guantanamo Bay came from the bottom up, British lawyer Philippe Sands disagrees.
In his book, Torture Team, Sands argues that the harsh interrogation policy that emerged after Sept. 11 came from high-ranking government officials and top military figures.
Sands warned in a June 2008 Fresh Air interview that the impact of the Bush administration’s conduct will be felt internationally:
“The terrible tragedy of these memos and that dark period is that they have migrated into the hands of people who now say, ‘Well, Americans do it. We’re going to do it also.'”
Sands believes President-elect Barack Obama can begin to restore the US’s global reputation. In a Dec. 4 article in The Guardian, he recommended that the next administration conduct a comprehensive, independent investigation of alleged abuses committed against detainees since Sept. 11, 2001.
Sands is a professor of law at University College London, where he is director of the Centre of International Courts and Tribunals.”
As I have said, justice will be had. One way or another. Whether the new administration likes it or not. Nature seeks equilibrium. Team Obama needs to decide if they are going to aid or resist the pendulum’s swing, but they cannot stop it. George Bush and his Neocon criminals are not going to be let off the hook by a large segment of the population. EVER. So you all better take that into your analysis. Bush and Cheney better be looking over their shoulders for the rest of their evil miserable little lives. Those people, every venture they’ve touched, and everyone they should endorse should be very concerned. The message to the GOP and the Neocons is simple. Sacrifice the guilty NOW or you (and the collective We) will all pay a much higher price later, but justice will be had. Count on it. Justice may be blind, but she’s got a sword and a good sense of balance in the long term. So help, get out of the way or get schwacked in the head history. The war criminals and traitors WILL pay. At what price justice is the question.
Hugh,
I agree with you about Obama showing no inclination to challenge power. I know this puts me at odds with some of the deepest, most articulate, and from what I can tell, ethical writers on this blog. The democratic underground collected Obama’s voting record. I’m linking to it below. Please be advised that it is written in an extremely annoying manner but it is instructive and still worth looking at:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=334×10842
I have been thinking about what Mike Appleton wrote. I also thought of the Watergate hearings in the context of a commission. I don’t think that Congress or that press exists anymore in this nation. I think the Congressional record of aquiesence to power and complicity in war crimes will stand in the way of any real commission. Glenn Greenwald has written many times of the complicity of the press in sweeping torture under the rug and I think the facts are there to back him up.
In other ways I completely agree with Mike that a commission with teeth would be a very good way to go. I do not have the knowledge of the legal system to address his points on how rulings may enshirne executive power in the law, but I take that fear seriously.
If I understand JT’s argument correctly, he is talking of putting pressure on Congress to appoint an AG who will admit waterboarding is a crime and then prosecution would proceed with minimal interference from the political class and the evidence will go where it may. In this case, we run into the complicit Congress again. Most likely the last thing they will allow is someone to come to power who would prosecute, which is probably why we got Muskasey in the first place. He is an excellent lackey in the service of both cheneybush and Congress.
So to my mind we have to 1. strengthen a true alternative press by putting time and financial resources into actual investigative reporting 2. pressure Congress to move or get out of the way and in this regard I think there would be better luck getting them to appoint a prosecutor rather than set up a commission 3. look to innovative places like Wikileaks, because someone always knows where the bodies are buried and finally, 4. hope someone in the international community will come forward with charges
Perhaps lower level figures might attempt this defense. But Bush, Cheney, Rice, Addington, Yoo, Rumsfeld, and Gonzales can hardly claim it was legal because _they themselves_ said it was. — Admittedly, adherents to the “unitary executive” nonsense might take “L’Etat C’est Moi” defense, aka “The Nixon Defense”, namely if the President says it, then it isn’t illegal.
To date, Obama has shown no inclination of any kind to challenge power. Perhaps he is being diplomatic. Fine.
Whatever happens domestically, we can hope for cases to brought abroad — in Iraq, Afghanistan, Pakistan, Europe, anywhere — to prosecute Bush & Co. for crimes against humanity.
Happy New Year Carol,
I believe you are here to draw attention away from your BFF’s bush and cheney’s horrendous actions against our own people and the people of other nations–aka–war crimes.
Oh, & I forgot to add this: Jack Goldsmith’s opposite number will be Joe Lieberman & they’ll probably call Kieffer Sutherland as an expert witness.