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What's the Relevance of Altstoetter, Anyway?

By Jack M. Balkin

There's already been a great deal of very interesting and helpful discussion in the comments to my post and Kevin Heller's about the Justice Case and its parallels (or absence thereof) to the actions of the Bush Administration lawyers. Again, however, I think it is difficult to understand what all the fuss is about unless we can all agree on just what the pertinent questions are, and why we are bothering to look to the Nuremberg precedents, anyway.

I don't know for sure whether this is helpful, but here's how I see it:

1. The Justice Case is not very relevant to the question of whether any Administration lawyers are culpable for criminal offenses under U.S. domestic law. Moreover, as I've tried to explain, I think it is not very fruitful to argue about domestic law culpability, because it is unthinkable that there would be any criminal investigations or trials of the lawyers absent evidence that they thought they were facilitating unlawful conduct. And in my previous post I tried to explain why I think no such evidence is likely to be forthcoming (which is certainly subject to dispute, but as to which Altstoetter is not terribly relevant).

2. For domestic law purposes, then, the important question, IMHO, is not criminal culpability, and not questions of legal ethics (as many have argued), but instead whether the lawyers and the President breached a constitutional obligation to faithfully execute the laws. More on this here and here. But cf. David Luban here. And as to that question, too, the Altstoetter example is not terribly germane -- unless one thinks that compliance with the laws of war is itself a constitutional obligation of the President. David Golove, among others, has offered (and is developing) a powerful case that there is such a constitutional obligation, at least as an historical matter. (See also my own preliminary thoughts on the historical question at pages 952-955 and 994-996 of this article.) If there is such a constitutional obligation to comply with the laws of war, the question would then become whether John Yoo and others contributed to a violation of that obligation by advising the President that there were no domestic law restrictions on the interrogation techniques in question, without also advising that the techniques were prohibited under the laws of war. (John did advise (i) that the customary laws of war are not constitutionally binding on the President -- a very contestable question, of course; (ii) that the ICC should not have jurisdiction to try U.S. persons for torture; and (iii) that there might be international criminal exposure anyway, because the Executive branch could not be confident that the ICC itself would conclude that it lacked jurisdiction. (The latter two conclusions are in the "other" August 1, 2002 memo, at pages 221-22 of the Torture Papers.) As far as I know, however, OLC never actually opined on substantive question of whether the CIA techniques would in fact violate the laws of war. Perhaps both the White House and the DOJ thought it was a moot question once OLC had concluded that the laws of war were not binding for domestic law purposes.)

3. The Justice Case might, of course, be germane to the question of whether U.S. government lawyers could be tried in an international tribunal for war crimes or for crimes against humanity. And there are those who think John Yoo, et al., might actually be tried in such a court. I'm highly doubtful that any such thing could happen without a fairly seismic change in U.S. foreign relations. But if it ever did, then of course what the United States itself argued about attorney culpability in the Justice Case could be pertinent to any claims and defenses raised in such an international tribunal.

4. So, if there are unlikely to be any criminal trials, and if the most relevant domestic question has to do with the President's Take Care obligation (and the role of lawyers in helping the President fulfill that obligation), what is an understanding of the Justice Case good for, anyway?

Principally, in my view, it is helpful to address the common public (and academic) debate about whether the provision of legal advice by government lawyers can ever amount to criminal conduct. Of course, almost everyone agrees at an abstract level that the answer to that question is "yes," at least in a case where the lawyers provide advice that they know to be erroneous, and where they also know that such advice will, as in the case of the CIA here, be a necessary precondition to the commission of known crimes. But for reasons I've already tried to explain, I doubt such a case of bad scienter could be established here.

Therefore, what we have here -- most likely -- is a case in which the government lawyers:

(i) (sincerely, if unpersuasively) advised that certain conduct would not violate domestic law;

(ii) also advised that the customary laws of war are not binding on the Executive for purposes of domestic law (a highly contestable proposition, but one that OLC had previously adopted) [NOTE: Subsequent to John Yoo's tenure, the Supreme Court has held in Hamdi and Hamdan -- properly, in my view -- that Congress itself has required the Executive to comply with the laws of war in its military conflicts (including the conflict with al Qaeda). Therefore, OLC lawyers more recently should be advising the Executive branch on whether the CIA techniques comply with the laws of war, even if only as a matter of statutory obligation. I am skeptical that they are giving such advice or that, if they are, they are fairly construing the laws of war.];

(iii) further advised that there should not be jurisdiction of a particular international tribunal (the ICC) to entertain criminal charges in connection with the activity in question;

but also

(iv) warned that there was some possibility that the international tribunal itself would conclude otherwise on the jurisdictional question;

(v) without ever (as far as I know) advising the President about whether the conduct in question would actually violate the laws of war;

where

(vi) the conduct in question does, in fact, violate the laws of war.

The question, then is whether the lawyers themselves violate the laws of war by failing to advise the President that the conduct under consideration violates the laws of war. I was hoping that the Justice Case -- and the U.S. prosecution's own theory of government lawyers' criminal culpability there, in particular -- would shed some light on that question. Kevin Heller suggests that it does not. But Scott Horton, in the comments section, is not so sure. I think this is a very important question, even if it will likely never be at issue in an actual criminal trial. (And if there is such a trial, it will of course be of even greater importance.)

Full post as published by Balkinization on May 02, 2008 (boomark / email).