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What, if Anything, Does the Nuremberg Precedent Tell Us About the Criminal Culpability of Government Lawyers?

By Jack M. Balkin

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

2. Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos. I don't want to overstate this point. I don't think John, et al., actually believed that the arguments they were making, if they ever came to light, would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view of the relevant arguments. I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court. And, perhaps most importantly, I think that John knew full well that many of the specific arguments within his memos about, e.g., the meaning of statutes and the existence of certain criminal defenses, were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest. These are serious failings, as I've tried to show in numerous posts here, and that I hope to elaborate upon in future posts about the March 2003 memo.

However, I think that Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace); and, mostly for that reason, (ii) that it is appropriate to apply numerous canons of statutory construction to interpret statutes to be much less restrictive of the executive in wartime than the text and structure of the statutes would allow, or that the lawmakers themselves either intended or would accept.

Indeed -- and this is perhaps the more important point -- it seems to me that they wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be). That is to say, they were, it seems to me, attempting to lay the groundwork for their now-unorthodox conclusions to evolve to the point where they become legitimate -- and were doing so in order to create a new orthodoxy, a new law of presidential powers. They know full well that, especially in the areas of war powers and national security, the "correct" view of constitutional law is often thought to be determined, at least in part, by a settled consensus among the political branches. They also were aware that this law of presidential powers can only be developed in a pro-presidential direction, if at all, if Presidents and their lawyers make novel claims of authority -- repeatedly -- and those claims are not resisted, or are even ratified by, the legislature and the people (and sometimes even by the courts).

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions. For now, my point is merely to describe what I think was going on here, in order better to understand why actual criminal prosecution is almost unthinkable.

3. OK, but the fact that criminal prosecution is unlikely does not mean that the question of whether the lawyers committed crimes is unimportant. In particular, I have argued that it is imperative to understand whether what the lawyers did here is in any important sense analogous to conduct that the United States itself has treated as criminal in prior conflicts, because (at the very least) if it is so analogous, and the lawyers have violated the law and committed crimes, then there can hardly be any justification for their conduct along any other metric, particularly in assessing whether they helped the President to violate his constitutional obligation to take care that the laws are faithfully executed. (I'm putting to the side here the rare, virtually inconceivable case in which the President and his lawyers concede that they have engaged in civil disobedience in the service of a higher end, such as where it was necessary in order to preserve the Republic (and thus the Constitution) itself. Cf. Lincoln's "all the laws but one" speech.)

And, surely, the most prominent and substantial historical precedent here is the Justice Case in the Nuremberg tribunals, in which the U.S. itself led the prosecution of several Nazi Ministry of Justice officials -- government lawyers -- for their involvement in the execution of the infamous ?Nacht und Nebel,? or "Night and Fog," decrees. The Justice Case is often invoked as an historical analogy for the criminal culpability of Bush Administration lawyers. Like many others, therefore, I have been wondering whether that is in fact a fair analogy. What was it, exactly, that the U.S. prosecutors claimed the German lawyers did to deserve criminal punishment? Was it, for instance (as some have suggested), that the lawyers advised German officials that the "Nacht und Nebel" decrees were lawful under German domestic law, while failing to also tell their government clients that the decrees would nevertheless violate the laws of war and constitute crimes against humanity? If so, then perhaps the Justice Case might have a lot to say about our current situation, because John Yoo, et al., in effect advised the President that he could authorize torture and like conduct under domestic law, and further informed him that he could, at least as a matter of domestic law, simply ignore the laws of war.

All of which is a long-winded way of introducing the important work of a guest blogger, Kevin Jon Heller of the University of Auckland (and Opinio Juris), who is actually undertaking a comprehensive and very important new study of what, exactly, the prosecution's theories of culpability were at Nuremberg, especially in the Justice Case. In a forthcoming post, Kevin argues that the Justice Case might have less to teach us about the possibility of criminal culpability of Bush Administration lawyers than has previously been suggested. I don't know for certain whether Kevin's account is subject to serious debate or question, since I haven't yet been through the primary materials myself. But I do know that Kevin has looked more closely at this question than any other recent scholar, and that his very important work will be the starting place for any further discussion about the Nuremberg tribunals and the torture memos.

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