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A Dissenting View on Prosecuting the Waterboarders

By Jack M. Balkin

The blogosphere is up in arms about General Mukasey's repeated testimony that he will not open a criminal investigation against those CIA operatives and contractors who engaged in waterboarding against al Qaeda detainees. (In testimony before the House Intelligence Committee today (see this video at approximately 1:19:10-1:23:50), CIA Director Hayden acknowledged that contractors were involved in the waterboarding, and stated that the technique was last used "just a few weeks short of five years" ago, i.e., in the Spring or late Winter of 2003.)

According to Mukasey, it is unthinkable that "the same department that authorized the program would now consider prosecuting somebody who followed that advice." (Video and transcript here.) He said the same thing about the unlawful NSA wiretapping program, too.

This testimony has, quite understandably, set off a firestorm among many who are, like me, horrified by what DOJ approved and what the CIA has done. Nevertheless, I don't find it so surprising, or objectionable, that DOJ would not think of prosecuting the CIA operatives and contractors, even though I have probably been second to no one in criticizing the DOJ legal advice underlying the CIA's interrogation practices.

Why do I reach what might appear to be such a counterintuitive conclusion, in light of my repeated legal condemnation of the CIA interrogation program?

Well, for one thing, it remains DOJ's view that the waterboarding was lawful at the time it used. (Hayden also testified today that its current legality would be a harder question, because of the intervening enactment of the DTA and MCA, and the Hamdan decision. This confirms my earlier surmise that in the Administration's view, waterboarding is not torture under the torture act (a statute that was in place in 2003), and that its legality today thus depends only on whether it is "cruel treatment" under Common Article 3 and on whether it shocks the conscience under the McCain Amendment.)

This view might be wrong on the merits -- I certainly think it is -- but nevertheless it remains the view of the prosecuting entity, the Department of Justice, and, more importantly, it is the view of the President. Given that that is the case, it would simply be nonsensical -- indeed, unconstitutional -- for the Department to prosecute persons for conduct that it considers to have been lawful, or to invite an outside prosecutor to consider such a prosecution. Would you try to send someone to jail for conduct you thought was legal and beneficial to the national security?

The more interesting question -- and the one that I think underlies the outrage over Mukasey's remarks -- would arise if and when the Department changed its legal view, and came to conclude that the conduct was in fact unlawful, i.e., that its previous advice was wrong. In that case, could it -- should it? -- go back and prosecute those who had relied upon that advice?

Well, to begin with, it's a fairly academic question. As a practical reality, it is virtually inconceivable that any Department of Justice, of any party's Administration, would ever prosecute an intelligence official or contractor who had relied upon formal OLC advice. The practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial, and therefore no DOJ will ever seriously consider such a prosecution. (The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.)

More importantly, even in the unlikely scenario that DOJ would one day consider such a prosecution, I think that it would be of dubious constitutionality in almost all cases. The doctrine on this is a bit complicated, but I think it is fair to say that the four leading Supreme Court cases --- Raley v. Ohio; Cox v. Louisiana; U.S. v. PICCO; and Marks v. United States -- stand for the broad proposition that criminal culpability may not be imposed for conduct undertaken in reasonable reliance upon the representation of government officials that the conduct was lawful.

Of course, the difficult question in any case is whether the reliance was reasonable. (The most interesting previous case, in my opinion, is U.S. v. Barker, 546 F.2d 940 (D.C. Cir. 1976), in which a split panel of the U.S. Court of Appeals for the D.C. Circuit reversed convictions of two of Nixon's White House "plumbers" who broke into the office of Daniel Ellsberg's psychiatrist on the "legal" advice of White House and former CIA official (and later Watergate felon) E. Howard Hunt. See especially the fascinating separate opinions of the great jurists Robert Merhige and Harold Leventhal. In my view, the Barker court got the particular decision wrong, basically for the reasons stated by Judge Leventhal, namely, that it was unreasonable for the burglars to rely upon Hunt's advice. But the panel appeared to unanimously agree that conviction would have been unconstitutional if the break-in had been authorized by the President or Attorney General.)

If the OLC memos on torture, and the subsequent CIA General Counsel directives, were so patently wrong that any reasonable CIA operative or contractor should have been aware of that fact, then the reliance would not have been reasonable. However, especially given (i) the official and historical role of OLC in providing authoritative legal advice within the Executive branch; and (ii) the continued insistence of the President and subsequent Attorneys General that the advice was not mistaken, I think it is almost certainly the case that no court would find the reliance by CIA operatives and contractors on OLC's advice to have been so unreasonable as to justify prosecution. (Compare, for example, the reliance on the informal views of much less authoritative government actors in Raley, Cox and Barker. See also, e.g., Sanger v. Reno, 966 F. Supp. 151, 164-165 (E.D.N.Y. 1997) (due process would prohibit prosecution of parties for violating statute prohibiting transmission of abortion-related information, if such parties had acted in reliance on Attorney General's opinion that application of the statute would violate the First Amendment).)

If the OLC advice was patently wrong, and if the lawyers in question knew it was -- or perhaps even if their legal advice was merely reckless, cf. the Lawyers' Case at Nuremburg -- then that would raise very interesting, thorny issues about the criminal culpability of the advice-givers, in the event that DOJ ever (i.e., in a different Administration) concludes their advice was egregiously mistaken. That, in my view, is the more pertinent and difficult question (although even here, I can't imagine actual prosecution of the lawyers, absent proof that they knowingly provided bad legal advice). [This is as good a time as any to repeat my disclosure that I worked in OLC until November 2002, but had no involvement in, or knowledge of, the events or advice in question.]

But prosecution of the waterboarders themselves? Well, I think that would be targeting the wrong government actors (we should want CIA officers to be able to rely on OLC advice) and, in any event, such a prosecution would be of dubious constitutionality. (And again, none of this even becomes relevant unless and until the President and DOJ change their views on the legality of the underlying conduct.)

OK, now to briefly anticipate some of the counterarguments, from very thoughtful bloggers whose outrage and frustration is quite understandable in light of the outrageousness of the underlying legal advice:

David Kurtz:

We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not.

No, that's not right. If it's unlawful to waterboard, and I think it clearly is (and was), it remains unlawful regardless of whether DOJ and the President conclude otherwise. But as long as they do conclude otherwise, it would make no sense -- and would violate their oaths -- for them to allow prosecution of those who engage in the conduct.

hilzoy:

[Foreclosing criminal investigation here] would mean, in practice, that if you had people in the DoJ who were willing to sign off on whatever the President wanted, even if it was patently illegal, no one could ever be prosecuted for following those orders. Just get someone in DoJ to make some idiotic ruling, saying something patently false, and voila! no legal jeopardy! See how easy? This means that if the Justice Department were sufficiently corrupt or compliant -- and does anyone want to argue that it wasn't, under Alberto Gonzales? -- the administration could do whatever it wanted without worrying its little head about the law.

Not quite. If the conduct were in fact "patently illegal," then reliance upon advice to the contrary would not have been reasonable, and thus there would be no bar to criminal prosecution of the waterboarders. But this question will arise only if and when the prosecuting agency itself concludes that the conduct was, as hilzoy and I agree it was, patently illegal. I doubt that will ever happen. But the important point for now is that such prosecution is only permissible if and when DOJ agrees with me and hilzoy, not only that the conduct was unlawful (and we're not even close to that day yet), but also that it was patently illegal. Don't hold your breath.

OK, but doesn't that mean that hilzoy is right that "this means that if the Justice Department were sufficiently corrupt or compliant . . . the administration could do whatever it wanted without worrying its little head about the law"?

Again, not quite. For one thing, if the corruptness of the legal advice were evident to the actors in the CIA, they could not rely or act upon it without fear of later criminal exposure. Moreover, even if prosecution of the CIA officials is not possible or lawful, those providing corrupt legal advice -- e.g., advice designed to provide cover for known wrongdoing -- would themselves be engaged in unlawful activity that could be punished. Howard Hunt did, after all, go to jail, even if Bernard Barker did not.

hilzoy again:

And don't say that our poor government officials have no choice but to rely on the DoJ's rulings about what is legal and what is not. We don't accept this excuse from anyone else. When mafia hit men assure us that according to their lawyers, members of other crime families are not persons within the meaning of the homicide statute, or corporate CEOs tell us that their lawyers advised them that cyanide does not count as a toxic substance for the purposes of the Clean Water Act, we do not say: oh, well, that's OK; just don't do it again. We say: too bad. You should have hired better lawyers. Have fun in jail.

The excuse I am referring to here, however, is not advice of counsel. Nor is it "following superiors' orders." hilzoy and others are correct that such defenses are often futile, as they ought to be (although the exact contours of the "following orders" defense is a notoriously difficult question). The excuse here, instead, would be reasonable reliance upon the assurance of government officials that one's conduct was lawful. That is not the case in the mafia and CEO hypos -- in those cases, the Attorney General did not advise the defendants that they were free to engage in the criminal conduct.

Please do not misunderstand me. The legal advice in question should be made public, and subjected to the withering legislative and public scrutiny it deserves. Congress should do much more to investigate what went wrong here at DOJ. The President and his advisors should be held accountable, in several settings (whether or not they include criminal courtrooms), for having reached and acted upon such egregiously and catastrophically improper conclusions about an issue of such importance, and about conduct that had been universally proscribed for more than a century. hilzoy (whose blogging on torture and other matters is, I should reiterate, of unsurpassed excellence) is absolutely correct when she writes:

The administration should have hired good, honest lawyers, not people who would tell them whatever they wanted to hear. There are a lot of reasons for hiring competent, honest lawyers, and protecting government agents who genuinely want to stay within the bounds of the law is one of them. The Bush administration did not do this, and because it didn't, it let its own people down and betrayed their trust.

The doctrine of reasonable reliance described above is predicated on the notion that there is a serious, important social value in having citizens and government employees be able to rely upon the legal advice of authoritative government officials -- not least of which are the AG and OLC. We should encourage such persons to seek such advice when they are uncertain about conduct of dubious legality, and we should promote a system in which such advice is especially respected, and reliable. The advice of OLC in recent years has blown that prospect to smithereens -- for the foreseeable future, all advice OLC gives will, with good reason, be viewed as suspect. And that is a huge cost, one that will take a great deal of time, good will, and improved practice to overcome.

Most importantly, both of the political branches must unequivocally condemn and reject the legal views at the heart of this scandal, so that no bureaucratized torture regime such as the one we are currently operating can ever again be contemplated.

But prosecuting the intelligence operatives who relied on OLC's bad advice is not the answer.

Full post as published by Balkinization on February 08, 2008 (boomark / email).