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)?
Update on Wednesday, April 22, 2009 at 05:09PM by
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."