It's possible that the torture memos prevent prosecution of CIA officials

[HamdenRice]

If there is anyone who is familiar with criminal law, I'd appreciate it if you weigh in on this.

The Obama administration seems to have made two complimentary decisions today -- namely, releasing the torture memos and deciding not to prosecute certain lower level official for torture.

To understand why these are related and how the memos may prevent prosecution, you have to understand two concepts -- first, how "crimes" are generally defined in our system and second, what a "legal opinion" is, especially one from the Justice Department.

Most people think of crimes as physical acts. But most crimes require both an act and some mental state. For example you might think that hitting someone with a baseball bat and killing them is a crime. It isn't. For example, if Slick and Joe are playing baseball, and Slick is at bat and Joe is catching, and Slick swings wildly hitting Joe in the head, killing him, Slick is not guilty of a crime.

On the other hand, if Slick plans for a year for a year to hit Joe with a baseball bat in order to rob him, and does so, then Slick has committed a crime.

To grossly simplify a complicated story, most crimes require both an act and an intent.

We can't read every accused criminal's mind. Sometimes, acts speak for themselves, or the intent can be inferred from circumstances. If a CIA officer beats a confession out of a prisoner, we don't necessarily need to probe the officer's mental state completely.

But opinions can have an impact on the "intent" part of the crime.

A legal opinion isn't just some lawyer's shooting the breeze opinion. It has very grave consequences, in terms of intent. For example if you are an officer of XYZ Corporation, and you want to do some transaction for tax benefits and you are skirting the line of tax evasion, you can ask your lawyer for his opinion.

If he writes an opinion that what you are doing is perfectly legal, the government might turn down your tax treatment, but it can't say that you purposely evaded the law. That's because you relied on a legal opinion of an expert. You showed that you did not have intent to break the law.

If you want to do some transaction with securities, and you are not sure whether it's legal, similarly, you can ask your lawyer whether it is, and if he says it is, you are more likely to proceed with it.

This does not mean that lawyers have licenses to allow people to commit crimes. In fact, the lawyer will only give a positive opinion if he thinks the transaction is legal, because in effect, he is transferring the client's liability to himself. That's why law firms and accounting firms went bankrupt along with Enron -- because their faulty opinions had blessed many of Enron's transactions. Few things that law firms do are scrutinized as carefully as official firm opinions.

But suppose you really aren't sure your lawyer is right. You can actually go to the government and get its opinion. In the examples above, you can ask the Treasury Department or the SEC whether your transaction is legal. These departments issue letters such as "Treasury rulings" and "no action letters" that say that what you plan to do is OK. Once you have a "no action letter" or "Treasury ruling" the government simply cannot turn around and prosecute you on the basis of its own legal advice.

(As you can see, during a lawless administration like the Bush administration, the ability of free market ideologues in such departments to issue opinions, no action letters and regulatory rulings really can amount to the administration issuing licenses to commit crime.)

My worry about this whole mess is that people like John Yoo, Jay Bybee, and Steven Bradbury did tremendous damage to any future prosecutions for war crimes by issuing the equivalent of government opinions to lower level officials.

If a CIA official, for example, didn't think that it was proper to torture, but was then given an opinion by the Justice Department that the proposed torture was legal, it means that he did not have an intent to commit a crime. Opinions by the highest law enforcement organization in the country -- the Justice Department -- essentially negate the low level official's criminal intent. He wasn't sure; he got advice; he was told he could proceed.

This seems to conflict, however, with international legal principles. War crimes cannot be excused by the common German excuse of "just following orders."

The problem though is that a legal opinion is somewhat different in effect from an order.

.

[atreides1]

1. It's a nice idea

But you're basing it on the theory that the CIA officials had no intent, what if you're wrong? Suppose they requested a "legal" opinion not because they didn't think it was proper to torture, but because they needed cover in case of possible prosecution.

Like the mythical "Get Out of Jail Free Card", or better yet "By my hand and for the good of the State, the bearer has done what has been done, Richelieu".

The Germans were not only following orders they were abiding by German law at the time, yet that little fact has been forgotten. But we believe that morals should have had some effect on the Germans, instead of blindly following orders or obeying laws that were just plain wrong.

[HamdenRice]

4. "The Germans were not only following orders they were abiding by German law"

That's correct. That's why I said the torture memo analysis conflicts with Nuremberg principles.

But I think the outcome is going to be that they won't be prosecuted under US law. They may be liable under international law, but if they don't get extradicted, they won't face trials.

This OP is more about what may happen here under the Obama administration.

[jberryhill]

13. ...and you leave out....

....the Germans were not prosecuted by the German government.

See how that works?

The DoJ cannot tell you on Sunday that X is legal, and then indict you on Wednesday for doing X.

That's a form of entrapment.

[ThirdWorldJohn]

2. It was reported that tapes of CIA interrogation were destroyed before the memos were written

Did those tapes record torture?

[HamdenRice]

3. Any torture that took place before the memos would not be insulated

You are correct.

Unless, there were similar memos from the CIA counsel.

[Supersedeas]

5. Reasonable reliance on an official statement of law; official interpretation by a public official;

and reliance on that statement/interpretation is otherwise reasonable. Model Penal Code Section 2.04(3)(b).

[HamdenRice]

6. Thanks. That seems to be what the administration's statement was referring to nt

[HamdenRice]

7. shameless self kick because the topic is being raised elsewhere this morning. nt

[pat_k]

8. No "analysis" can transform a cruel, inhumane, and degrading act into. . .

. . .a humane act.

Bashing heads against walls; filling lungs with water; forcing into unbearably painful positions for days -- unless these can someone be transformed into the humane treatment mandated under Article III of the Geneva Conventions (and therefore mandated by the Constitution, not to mention U.S.C. Title 18, Chapter 118, Sec 2441. War Crimes.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8349135&mesg_id=8349963

[HamdenRice]

9. No one said it becomes a "humane act" or even legal act. But it's no longer a prosecutable act

If you think that in the OP I argued that a legal opinion makes torture a "humane act," I think you need to address your rebuttal to these guys:

[pat_k]

15. You once again appeal to the defense invoked by. . .

. . .the Nuremberg defendants who appealed to fraudulent judicial authority to excuse their crimes.

The claim of immunity didn't stand then. It does not stand now.

[HamdenRice]

16. It's not a claim of immunity

It's a claim that they can't be prosecuted by the very Justice Department that gave them the opinion that these tactics were legal. What they did still remains a crime, but one that can't be prosecuted.

Think of it as a murder case where the defendant did the crime, but all the evidence was collected using warrantless searches and police fabrication of evidence. It doesn't mean the defendant is innocent; it means he can't be prosecuted. He's guilty but he goes free.

It's a subtle difference, but an important one.

[pat_k]

17. Of course they can. We renew our government. . . (edited)

. . .with each election. It is not "the same" Justice Department -- or should not be. With regard to the war crimes committed, Obama's DOJ is following in the footsteps his corrupt predecessor's. It is up to us to make sure that changes. To demand a transformation from the corruption of the bushcheney DOJ to one that actually follows and enforces our law and our will.

. . .Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And to claim "they cannot be prosecuted" is a claim of immunity. There is no violation of civil rights that would preclude prosecution and judicial determination. Having relied on the memos is a defense, but it is not a reason to refrain from prosecuting. It is up to the finder of fact (whether jury or judge) to determine on the evidence whether reliance on the memos is a valid affirmative defense. If a murderer consulted an attorney who told him the murder would be legal, it would be up to the finder of fact to pass judgment on whether the state of mind of the killer excused his act.

[HamdenRice]

18. It is the same government

While you can cite revolutionary rhetoric, the reality is that the Obama administration is bound by the laws, contracts, treaties and other binding commitments of predecessor administrations. Would you have wanted Bush to be able to say he wasn't bound by any Clinton commitments?

Moreover, Obama's DOJ is NOT "following in the footsteps his corrupt predecessor". It has changed policy. It is indicating that those who did not rely on the opinions in good faith may still be prosecuted. But it cannot ignore the effect of legal opinions.

Also, you seem to be refusing to understand the analogy. It is not immunity. It is more like a spoiled case. The person is not forgiven, nor is the behavior ruled not a crime. It means that the case can't be prosecuted -- something that happens with crimes and criminal justice hundreds of thousands of times a year, across the entire legal system.

You said, "If a murderer consulted an attorney who told him the murder would be legal..." but do you realize that this happens all the time?

If you substitute the word homicide, that is. Every time a Texas executioner starts the lethal injection machine, he is relying on authority that his homocide is legal.

Every time a transplant doctor removes organs of someone who is still alive, based on a legal opinion that killing a "brain dead" person is not murder, this is happening.

In both cases it would be wrong for the government to turn around and prosecute those killers.

[pat_k]

19. Unlawful and unconstitutional orders are most certainly NOT. . .

. . ."binding."

And the necessity to unequivocally reject those unconstitutional orders and "opinions" as a nation is the REASON we must prosecute. Bush put the constitution in breach. Congress failed to impeach to repair the breach. It is now up to Obama to prosecute and thereby declare their acts to be utterly contrary to law. And it is up to We the People to demand that he does so to restore our government.

The bottom line is that we are obligated to prosecute for war crimes. If we fail deal with our own war criminals, the duty to do so falls to the other parties to Geneva.

[pat_k]

21. BTW -- The fact that Obama "opted" not to prosecute. . .

. . .demonstrates knowledge that the offenses are subject to prosecution.

[HamdenRice]

22. So?

Prosecutors opt not to prosecute cases when they know they'll lose because the defendant, although he did the act he is accused of, has a defense.

[jewishlibrl]

10. The answer is Article 146 of the Convention Against Torture

"Each High Contracting Party shall be under the obligation to search for persons alleged to have committed , or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

So two kinds of people will need to be prosecuted:

1-) Those who tortured (CIA Agents), and
2-) Those who told them to torture.

Note that it makes no excuse for not knowing that what one was doing constituted torture:

http://books.google.com.br/books?id=J-SrdFtSuDUC&pg=PA597&lpg=PA597&dq=%E2%80%9CEach+High+Contracting+Party+shall+be+under+the+obligation+to+search+for+persons+alleged+to+have+committed,+or+to+have+ordered+to+be+committed,+such+grave+breaches,+and+shall+bring+such+persons,+regardless+of+their+nationality,+before+its+own+courts.&source=bl&ots=gnt2jb9_I0&sig=RwDftpfZACmj2loL6aF-pjGORcs&hl=en&ei=vlPoSZ_eBYKHtgfk1J2PBg&sa=X&oi=book_result&ct=result&resnum=1

[HamdenRice]

11. The OP explicitly says that our country's position on opinions conflicts with Geneva

and as I stated, I don't think the DOJ can prosecute after having given them opinions that what they were doing was legal.

And, as I stated above, the result is likely to be that they would be free of prosecution here in the US but under threat of arrest in other countries.

My point is explaining why the Obama administration may not be able to be the agents that bring these people to trial, and it it can't, then for all practical purposes they will go free. It's about the limits on what the administration can do, not the officers' ultimate guilt or innocence.

[mmonk]

12. Subject to interpretation evidently

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I guess everything I learned should be "unlearned".

[HamdenRice]

14. "where there's a right, there's a remedy"

No one is arguing torture becomes legal -- only that it becomes unprosecutable under the circumstances. The cynical view, "where there's a right, there's a remedy," suggests that because there is no remedy (prosecution) in this circumstance, there is no right.

A better way to look at it is that prosecutors ALWAYS have discretion about whether to prosecute, and inasmuch as the DOJ approved these methods, there is no way they can prosecute.

That doesn't mean that torture is legal going forward.

[saiyanppl]

20. yeah