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John Yoo and the Justice Case

By Jack M. Balkin

Guest Post by Kevin Jon Heller
Senior Lecturer, University of Auckland Faculty of Law

Scholars who argue that John Yoo?s authorship of the infamous torture memos makes him complicit in various war crimes -? torture, illegal detention, etc. -? almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It?s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo?s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -? I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -? or doesn?t say -? about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo?s opinions were ?- and they were indeed reprehensible -? the case provides far less support for prosecuting him than most scholars assume.

Before delving into the details of the case, it is important to note that reading NMT judgments can be an exercise in frustration, because they are far less legally precise than the judgments issued by modern international tribunals. In particular, the Tribunals rarely specify the mode of participation they use to convict a defendant -? ordering, aiding and abetting, joint criminal enterprise, etc. -? and often even fail to identify which of the defendant?s acts discussed in the judgment they consider criminal. The latter flaw is particularly troublesome when trying to apply the legal principles articulated in the Justice Case to Yoo?s situation, because ?- as explained below -? none of the defendants in the case were acting simply as legal advisors to the Ministry of Justice. As a result, we can only speculate whether the Tribunal would have convicted any of the relevant defendants if they had held a position of authority similar to Yoo?s.

The Justice Case itself, which was held in Nuremberg between March and December 1947, involved 16 defendants who were associated in various capacities with the criminal-justice system in Nazi Germany. Some were judges and prosecutors in the Nazis? infamous Special Courts and People?s Courts; others were officials in the Reich Ministry of Justice. The crux of the prosecution?s case, according to Telford Taylor, the NMT?s Chief Prosecutor, was that the defendants were guilty of ?judicial murder and other atrocities, which they committed by destroying law and justice in Germany and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.? Particularly relevant to Yoo?s situation is Paragraph 13 of the Indictment, which alleged that the Ministry defendants were criminally responsible for their involvement in the execution of Hitler infamous ?Nacht und Nebel? decree (for background on the decree, see Scott Horton?s post here):

The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler?s decree of ?Night and Fog? whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims? whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims? relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for ?protective custody? for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.

The Tribunal had little difficulty concluding that the Night and Fog decree had ?no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations? (1131). The primary issue, then, was which of the defendants could be held criminally responsible for the war crimes and crimes against humanity committed pursuant to the decree. According to the Tribunal, such individual responsibility required the prosecution to prove ?that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense? (1093).

Three of the defendants in the Justice Case held positions in the Ministry of Justice that involved, among other things, giving legal advice to the Reich Minister: Wolfgang Mettgenberg, who was Representative of the Chief of the Criminal Legislation and Administration Division; Guenther Joel, who was Legal Adviser for criminal prosecutions; and Wilhelm von Ammon, who was Ministerial Counsellor of the Criminal Legislation and Administration Division. All three were convicted of war crimes and crimes against humanity and sentenced to 10 years imprisonment.

There is, however, a fundamental problem with citing these convictions as precedent for prosecuting John Yoo or other Bush Administration attorneys who ?merely? advised that certain conduct was lawful: namely, that Mettgenberg, Joel, and van Ammon were not only legal advisors to the Reich Minister. On the contrary, all three men possessed considerable political authority, as well -? and repeatedly used that authority to actually enforce the Night and Fog decrees.

Mettgenberg

Mettgenberg?s case is the clearest. According the Tribunal, ?he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or punishment? (1128). Indeed, Mettgenberg?s involvement in giving effect to the Night and Fog was so extensive that the Tribunal did not feel the need to linger on specific actions, mentioning only a few of the most notorious:

? Mettgenberg travelled with von Ammon, his subordinate, to the Netherlands to ensure that Night and Fog cases would be transferred to Germany for trial. Until that trip, cases falling under the Night and Fog decree had been tried by German courts in the Netherlands, in violation of the decree (1042).

? In response to a question from the Wehrmacht about the status of 224 alleged spies arrested in France, Mettgenberg drafted a circular decree for Himmler that ordered application of the Night and Fog decree (1047).

? Mettgenberg initialled a letter from the Ministry to People?s Court justices and chief prosecutors ordering Night and Fog procedures to be applied to nationals of countries not occupied by Nazi forces, an obvious violation of international law (1050).

? Mettgenberg, along with von Ammon, answered objections to the transfer of Night and Fog cases arising in France to Breslau by insisting that the transfer take place. Mettgenberg later informed Himmler that the transfers had gone forward (1052).

Joel

Joel was involved in Night and Fog cases, but in his role as the Chief Public Prosecutor of Westphalia in Hamm from August 1943 to March 1944, not as Ministerial Counsellor. ?The high office which he held required him to supervise and properly handle Night and Fog cases filed in the courts where he was chief prosecutor? (1138) -? a significant task, given that the Special Courts in Hamm and Essen tried more Night and Fog cases than all of the other Special Courts combined (1137). Joel failed to prevent the prosecutors under his authority from applying the illegal Night and Fog decree -? a discretionary power that he could have and should have exercised -? making him criminally responsible, via command responsibility, for the resulting crimes: ?[i]n law, Joel must be held to have had the responsibility of these cases? (1137).

The Tribunal also convicted Joel for his criminal activities as Ministerial Counsellor, but those activities did not include giving legal advice. Instead, he was convicted for using his ?authority and duty to review penal cases from the Incorporated Eastern Territories after the occupation of Poland? (1140-41) -? a judicial role, not an advisory one -? to give ?final authorization? to nearly 100 illegal death sentences imposed by German courts between 10 September 1942 to March 1943 (1142).

Von Ammon

Although most scholars who cite the Justice Case focus on von Ammon, he was not simply a legal adviser to the Reich Minister. On the contrary, as the head of the Night and Fog subdivision within Mettgenberg?s division, he ?held an executive position of responsibility involving the exercise of personal discretion? (1134) and was ?in charge of Nacht und Nebel procedure from 1942 until the end of the war? (1133).

Von Ammon made liberal use of his discretionary authority to ensure that the Night and Fog decree was enforced throughout the occupied territories. Some of the lowlights:

? Von Ammon independently assigned Night and Fog cases to the various Special and People?s Courts (1041).

? Von Ammon personally reviewed all Night and Fog indictments and sentences and sought the Minister?s decision concerning the execution of all death sentences (1041).

? As mentioned, von Ammon travelled with Mettgenberg to Netherlands to stop German courts from trying Night and Fog cases in occupied territory (1042).

? Von Ammon attended a conference in Poland about the possibility of transferring Night and Fog cases from the Netherlands, Belgium, and Northern France to Special Courts for trial; obtained the relevant Gauleiter?s approval for the transfers; and signed (along with Mettgenberg) the resulting decree ordering the transfers (1051).

? Von Ammon initialled a Ministry directive to various prosecutors and judges ordering them to turn over defendants found not guilty by the People?s Court to the Secret Police for detention for the remainder of the war (1052).

? As noted, von Ammon and Mettgenberg ordered Night and Fog cases arising in France to be transferred to Breslau for trial, despite objections from the local authorities (1052).

? Von Ammon personally approved forcing Night and Fog prisoners who had served their sentences or had been acquitted to labor in munition factories within Germany, a direction violation of international law (1062).

* * * *

As these examples indicate, Mettgenberg, Joel, and von Ammon did not simply advise their political superiors that they could legally authorize the commission of actions that qualified as war crimes and crimes against humanity under international law. The defendants personally authorized the commission of those crimes. In other words, Mettgenberg, Joel, and von Ammon were among the political superiors who made the discretionary decisions that were necessary to implement the Night and Fog decree. It is thus difficult to argue that their convictions stand for the proposition that, to quote Scott Horton again, ?lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals.? On the contrary, the Tribunal never -? literally never -? singled out a specific legal opinion offered by any of the Ministry defendants as being even partly responsible for their convictions.

Indeed, the only specific discussion of legal advice in the Justice Case seems to imply that ?merely? giving such advice, no matter how erroneous or damaging, does not give rise to criminal responsibility. That discussion concerns a letter written by Herbert Klemm -? the State Secretary of the Reich Ministry of Justice, whom the Tribunal convicted and sentence to life imprisonment -? stating that Germany?s juvenile law would not apply to Poles, Jews, and Gypsies. Although the Tribunal?s judgment is unclear on this point, it appears that Klemm argued at trial that the letter was a legal opinion, not a statement of Nazi policy, and could thus not be considered criminal. The Tribunal rejected that argument, concluding that the letter was not, in fact, simply a legal opinion:

This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice... it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking (1095).

To be sure, the Tribunal does not specifically say that a legal opinion could never give rise to criminal responsibility. Nevertheless, the quoted passage appears to draw a very clear distinction between offering an erroneous legal opinion, which is not criminal, and choosing to implement an illegal government policy, which is.

Does all of this mean that the Justice Case completely exonerates government lawyers who advise their political superiors that war crimes or crimes against humanity are lawful? That is a difficult question. It is certainly possible that the Tribunal would have been willing to convict one of the defendants in the Justice Case for giving such advice to the Reich Minister, particularly if that advice had been a necessary precondition for the creation and enforcement of policies that qualified as war crimes and/or crimes against humanity. Nothing in the judgment itself, however, directly supports that conclusion. Moreover, at a bare minimum, I think the Tribunal would have required the prosecution to prove that the defendant gave the legal advice knowing that the actions he approved actually violated international law. That requirement is implied, I believe, in the Tribunal?s repeated insistence regarding the Night and Fog decree that ?[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out, knew that its enforcement violated the international law of war? (1038).

The Justice Case, in short, provides far less support for prosecuting government lawyers like Yoo than scholars have assumed, at least insofar as their role in promoting torture and illegal detentions was actually limited to providing legal advice. At most -? and I believe that the argument is unacceptably speculative -? the Tribunal?s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact. Whether Yoo would be a criminal under that standard, I leave for others who know far more about his actions to decide.

BIBLIOGRAPHIC NOTE: all citations are to III TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (William S. Hein & Co. ed. 1997)

Full post as published by Balkinization on May 01, 2008 (boomark / email).