When does your legal advice make you a war criminal?
Sunday, April 19, 2009 at 03:35PM More "torture memos" were released last week, showing that Justice Department lawyers were intimately familiar with the details of "enhanced interrogation" methods and then approved them—or at least let them go forward. Ordinarily, I think, a lawyer does not commit a crime if the client commits a crime relying on the lawyer's erroneous advice that the conduct is lawful. Certainly, the lawyer would be looking at a malpractice action and potential disbarment for incompetence, but where is the line on the other side of which the lawyer is also a criminal? In this post, I try "crowd sourcing." Instead of my summarizing interesting material for you and providing a link, I'm asking you to help me figure this out by referring me to useful materials and/or explaining it to me.
The current Attorney General, Eric Holder, testified in his confirmation hearings that he believes waterboarding is "torture" within the meaning of US statutes and the Geneva Conventions that are binding on the US. His immediate predecessor, Michael Mukasey, very pointedly refused to say in his confirmation hearings that waterboarding is—or is not—torture. Before him, Alberto Gonzales, defended waterboarding as being lawful. But the lawyers most in jeopardy are senior Justice Department lawyers like John Yoo and Jay Bybee who actual signed off on the legal memos approving waterboarding which, in order to make this inquiry interesting, we need to assume is torture and therefore a federal crime and also a war crime subject to universal jurisdiction.
If the "rule of law" means anything, it cannot be the case that advice of counsel that the activity would be legal is a defense to a major crime, any more than "just following orders" is a defense, can it?
An element of some crimes is that the defendant must have had a "specific intent" to cause a particular outcome (e.g., in the case of murder, death or serious bodily injury), but so far as I know the defendant's subjective opinion that the outcome he intends is lawful is not a valid defense. For example, for a battered wife to poison her husband to death over a period of months is probably murder—even if some lawyer advised her in advance that it would not be a crime. Am I wrong about that?
Assuming the DoJ advised unequivocally (assuming there's a lawyer alive who knows how to give unequivocal advice) that waterboarding is lawful, what, if any, additional circumstances would have to be proven to convict the lawyers of a war crime? Just that after all the appeals in a particular criminal case the Supreme Court holds 5-4 that the advice was wrong and waterboarding is torture? That seems pretty harsh. What if the opinion did not address major contrary precedents or was otherwise objectively unreasonable and the defense was unanimously rejected by all judges before whom the issue was raised? Does it matter if the lawyers were just incompetent or were acting in bad faith to give the client cover with a bogus legal opinion? Do the lawyers go to jail, or just get fired and disciplined by the state bar? Where is the line between giving professional legal advice and joining a criminal conspiracy with clients intent on waterboarding?
What if the lawyers' advice was that there was some legal uncertainty whether waterboarding was lawful, but that in their opinion it would be reasonable to raise certain potentially effective defenses in the event of a criminal prosecution? Actually, I have the impression that at least some of the torture advice was of this nature—DoJ identified legal issues that they considered had not been definitively settled by the Supreme Court of the United States (including that the President has inherent war powers that override statutes and treaties, that waterboarding is not torture, that the Geneva Conventions do not apply to "unlawful combatants" or outside the US, etc.) and undertook (at least implicitly) to raise them on behalf of agents of the United States in the event persons following its advice were charged. Wouldn't anybody engaging in waterboarding based on such advice clearly be assuming the risk that the suggested defenses might fail and that a criminal conviction might result? And wouldn't the lawyers clearly be protected from prosecution if the advice was accurate?
Or would they be criminally liable for failing to report to police or prosecuting authorities (in this case themselves) their belief that a serious crime was about to be committed? In many States there is an imminent-crime exception to the general duty to preserve a client's secrets, and in others there is no exception.
I have little doubt that the lawyers involved strained very hard to facilitate waterboarding while making it extremely difficult for later administrations and international courts to prosecute either the lawyers or the clients. Did they succeed? If so, how can their methods be generalized to allow other lawyers to insulate their clients from other kinds of crimes?
Would the analysis be different if decided under customary international law or the laws of Spain, Iran, or Cuba (just to pick a few nations at random)?
Skeptic
This doesn’t go to the central question I posed (criminal liability of lawyers), but this Congressional Research Service report notes (at 4) that Section 1004(a) of the Detainee Treatment Act of 2005 (DTA, P.L. 109-148) makes reliance on advice of counsel a qualified but probably very effective defense:
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States ... and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that ... [the] agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available ... or to provide immunity from prosecution for any criminal offense by the proper authorities.
Skeptic
The Center for Constitutional Rights filed a complaint with the German Federal Prosecutor in November 2006 contending that lawyers "aided and abetted" torture by giving the legal advice they did. The prosecutor declined to open an investigation, and that decision is on appeal. From the executive summary of the complaint:
The U.S. torture program that resulted in war crimes was aided and abetted by the government lawyers also named in this case: former Chief White House Counsel (and current Attorney General) Alberto R. Gonzales, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, General Counsel of the Department of Defense William James Haynes, II and Vice President Chief Counsel David S. Addington. While some of them claim to merely have given legal opinions, those opinions were false or clearly erroneous and given in a context where it was known and foreseeable to these lawyers that torture would be the result. Not only was torture foreseeable, but this legal advice was given to facilitate and aid and abet torture as well as to attempt to immunize those who tortured. Without these opinions, the torture program could not have occurred. The infamous “Torture Memo” dated August 1, 2002, is the key document that redefined torture so narrowly that such classic and age old torture techniques as water-boarding were authorized to be employed and were employed by U.S. officials against detainees.
CCR's longer discussion of aiding and abetting (under German law) is here and argues (at 27) that intentionally giving incorrect advice to facilitate the criminal conduct makes a lawyer an accessory:
Yoo and Bybee intentionally gave incorrect legal advice, because only this fit the administrative and political concept for the use of torture, of which they were aware.
Skeptic
Four lawyers discussed this at lunch today and raised several points, one of which I’ll pass on.
It is very common for a lawyer’s formal communication to a client to be either (i) a comprehensive and even-hand explanation of the state of the law as it applies to certain facts because the client wants to weigh the pros and cons of a course of action, or (ii) a one-sided argument leading to a conclusion that the course of action the client has chosen is lawful. Either may be called a “legal opinion,” but it is useful to keep in mind the distinction many lawyers would make and call (i) a memorandum and (ii) an opinion. In a large law firm, a memorandum would be a routine output prepared mostly by an associate and signed off by a partner or two, whereas an opinion might have to be approved by a committee and would be issued on letterhead paper.
Usually, clients don’t want to pay for “opinions,” and usually when they do want “opinions” the reason is to be able to show them to some third party, now or if/when something goes bad. For example, a client may want a formal opinion that its new trademark does not infringe an existing mark, an opinion that the new widget does not infringe an existing patent, or an opinion that an ambiguous provision of the tax code authorizes a certain deduction because those opinions are useful later to show that the client acted in good faith and not recklessly. If the “torture memos” were not thorough, even-handed, and mainstream in their analysis, as many critics have charged, probably the reason is that they were not meant to be category (i) “memoranda” but were meant to be category (ii) “opinions” and both DoJ lawyers and senior Administration officials understood with perfect clarity that the torture "memos" were really torture "opinions."
Reader Comments (1)
Roger, in a nuclear world, where all current and future conflicts are potentially what Jim Callard's article terms hybrid, passive, or guerilla warfare, one might have to come to the conclusion that the Geneva Convention has become outmoded due to technological changes...eg, the only war it covers would be a declared war. My memory is shaky, but I don't think we declared war on Vietnam. It doesn't bode well for whatever there is of law if there is no one who can be held responsible for torture. Just who is going to be held responsible if not the people who actually committed it, not the people who served the ones who wanted it by clearing the legality...does anyone think we are actually going to get Bush (and I'm supporting the Indict Bush Now movement)? Cheney? If not, then no one is punished; Reagan got away with a lot and Bush and Cheney built on it...the next time it will be even worse..and that is a big deal. I'm totally revolted by Cheney coming out of his hole to defend torture and this stuff about it saved LA. This is a bad scene, rapidly getting worse. The only good part is that the discussion is now out in the open.