Free Markets, Free People

Torture Memos: Prosecute who? For what?

Patterico WLS, posting at Petterico’s “Jury” blog points out that, despite all the calls for prosecuting “former Bush officials” over the torture memos and the actions taken under their aegis, he wonders, as an actual prosecutor, who would be charged with a crime, and what, exactly, the crime would be.

In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton [sic] of the “Torture” memos.

It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations…[b]ut they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (”guilty mind) necessary to establish knowing criminal conduct.  When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice…

Prosecuting the officials who offered the advice is a different question.  But what would be the charge?  It can’t be “Torture” under the statute — they didn’t do anything.  They simply responded in their official capacity to a question raised by another governmental entity… Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?

Fair questions indeed.

The officials who wrote the memos were acting as lawyers providing legal advice over the meaning of a statute.  Perhaps that advice was wrong.  But is providing an erroneous legal opinion a crime?  If so, what, exactly, would the crime be?  You would have to prove that the advice was completely and knowingly concocted from whole cloth and/or that the concocted legal advice was part of conspiracy to commit torture.  In that case, you’d have to find evidence of specific collusion between the CIA and DOJ to knowingly concoct  spurious justifications.

Absent such evidence, all you have is lawyers providing legal advice that the current administration doesn’t like.  In that case, I don’t see what the prosecutable offense is.

Taking it further, the CIA officials who actually conducted the torture have a very good defense, namely, that the formal legal advice they received from the government’s top lawyers at the DOJ was that the specific techniques they used fell outside the meaning of §2340.  In that case, they cannot have known they were committing a crime, but rather, they believed they were, on the advice of counsel, acting entirely within the law. So, unless there’s evidence that the interrogators went off half-cocked and began using non-approved techniques in the questioning, it’s difficult to see what the crime would be on the part of the interrogators themselves.

With the above in mind, it’s difficult to construct any other scenarios in which any of these of officials are prosecuted without it becoming, in effect, a criminal prosecution for partisan policy differences.

Whatever else that might be, it is not the Rule of Law as it is commonly understood.

34 Responses to Torture Memos: Prosecute who? For what?

  • F – I – S – H – I – N – G Expedition, who knows where it can lead!  Think of the fun that can be had!

  • Ask, and ye shall receive –
    Who, What

  • As a prosecutor myself, I tend to agree that the prosecution of the memo drafters is unrealistic and relatively ridiculous.  However, I have to take issue with a couple of points.   The availability of the “advice of counsel” defense does rely on the intent at issue, but is also reserved only for those “complex crimes.”  Whether that defense is even available for the actual interrogators is premised on how narrow a court would draw that distinction.  Is torture really a complex crime, or is it merely a trumped-up version of assault?

    If a court were to deny the interrogators the defense, I would suspect the feds would indict the memo drafters on their favorite crime:  conspiracy.  It’s a laughable indictment and one with zero chance of success – especially since they were trying to determine whether they were actually committing an illegal act – but that doesn’t mean an Eric Holder run DOJ wouldn’t try, and that they wouldn’t at least get a trial out of it.

    • To my mind, the issue is “complicated” by the fact that we haven’t got a good definition of torture.  As many people have pointed out, we waterboard members of our own armed forces during certain types of training.  Ditto sleep deprivation, exposure to heat or cold, etc.  Hence, it seems difficult to me to demonstrate that a lawyer who said that these things were OK under certain circumstances was inciting torture, and equally hard to demonstrate that the person committing the act under advice of counsel should have known better (as, for example, he ought to have known better if a lawyer had told him it was OK to commit a murder).

      If, as it seems clear, “responsible” members of Congress* knew and approved of the measures taken, even tacitly, then it seems doubly hard to make a criminal case against either the lawyers who opined that the measures were OK, the officers who committed the acts, or the officials who authorized them.


      (*) Yes, I know: “responsible” and “member of Congress” don’t really belong in the same sentence paragraph book universe.

  • Hey, as we saw with the AIG Bill of Attainder the specific actions in question do not have to be legitimate.  All that matters is that the target of these actions be the “right” ones in order to keep stirring the populist anger pot and keep attention away from the real problems.

    And if a lowly associate-deputy-assistant AG gets caught making false statements (a la Scooter Libby) then we can declare the whole project a “Great Success”.

    • Bingo – did Martha Stewart go to prison because she committed stock fraud? 

      We better have SOMEONE (Republican and associated with BUSHITLER) lined up for investigation and punishment once the ‘torture’ photos are released by the ACLU.  There will be marches, and protests, and they won’t be attended by right wing wacko racists interested in stopping poor children from being fed and seniors from getting medical treatment by lowering taxes on the rich, no sirree!!!

      Thank God we have a President willing to apologize for, uh, well, everything!
      Gosh, he’s so eloquent and handsome don’t you think?

  • I like how Pelosi has continuously regressed from the I-never-heard-anything-about-that defense to the I-vaguely-recall-something-about-it-but-didn’t-know-they-were-going-to-actually-do-it defense, to now using the I-was-powerless-to-stop-it defense.

    Pete Hoekstra called it the “lamest of lame excuses“.

    • As a former Washington Times reporter myself, who covered Congress and Pelosi extensively, I was tickled by this passage from that story:

      Mrs. Pelosi also said some members would prefer not to get such briefings so they could raise public objections. She did not say how they would know about classified details without the briefings.

      Typical Pelsoi. When faced with the facts and tough questions she is unfailingly either idiotic, illogical or dishonest — and often all three at once.

      • “she is unfailingly either idiotic, illogical, or dishonest…”

        Because she is unfailingly appealing to her base.

  • As I recall, the Allies after World War II had trouble deciding exactly how to prosecute top nazis (please don’t think I’m comparing Bush and Co. to nazis!).  What charge could one level against Hitler, Goering, or any of the other goons?  Eventually, they hit upon the “crimes against humanity” charge.  I can well imagine TAO, “Bagman” Holder, and other democrat scum trying something like this.  Indeed, as looker‘s link demonstrates, the UN is DEMANDING that SOMEBODY be prosecuted.  Maybe this could be an out for TAO: hand over Bush admin officials to an international court.  This avoids thorny questions about what US law has been violated AND let’s TAO off the hook: “I’m not prosecuting the previous administration, the UN is.”

    My feeling is that, if this goes forward, it will be the opening act of the Second American Civil War: once it is clear that one part of the country has no conpunctions about using the government to persecute another, the federal compact is as dead as a doornail.

  • It should never have come to this.  The same party that crucified Clinton for semantic hair-splitting over the word “is” is bending itself into a pretzel over memos that play the same kind of game with the word “torture.”  And it’s my party. 

    Meanwhile, we can’t trust the Dems to pursue any legitimate course of action on this without it becoming an attempt to deliver a political coup de grace on an already weakened opponent.

    This is a huge mess, and like every other huge mess we collectively step in as a country, it could have been avoided in the first place if only cool heads and reason had prevailed over blind reaction and pain avoidance.  I’m moving to Estonia.

  • As one of the bloggers over at the jury, I’l like to point out that it isn’t Patterico making that post, but another poster that goes by WLS

  • It’s not about “rule of law” here

    It’s about truth commissions, show trials, political red meat, and trying to gin up any sort of slip into a Scooter Libby style prosecution.

    But lets start with Pelosi in this case. She was briefed and did nothing. And may I tell Mr. Obama to start a legal defense fund now? I’m certain we can put this sort of thing to work on him in a few years. His wife too.

  • I think the real irony here would be that Nancy Pelosi (D-Dumba$$) would be put under oath, during which she can either fess up that she knew of the waterboarding in 2002 but said nothing about it, or she can lie under oath, say she knew nothing, and then get prosecuted for that.
    Now, wouldn’t it be a hoot if The Clown™ opened the door to this malarkey and in the end the only person to get their dick caught in the trap is his own Speaker of the House?

    • I suspect that’s why he suggested that Congress or a “bipartisan commission” (possibly co-chaired by Meghan McCain or some other noted Republican legal giant): the rules could be rigged to minimize the possibility of embarrassing disclosures.

      Not that I think he really had too much to worry about: when Jamie “Wall” Gorelick sat on the 9-11 Commission and got away with it, it sounded the death knell for objective search for the truth in our government.

    • Awww hell no, this isn’t for people like Pelosi and Reid!  Goodness NOOOOOOOOOOO!  heh heh, you crazy wild eyed idealists!

      This is meant for the little people, it’s small theater for the masses and left. 
      This will show that we have a ‘transparent’ government in place now.

      It should lead to mega amounts of buck passing, stonewalling, indecision and inability to complete useful missions on the part of our legal and intelligence gathering arms.  Just what the UN would really like in the first place.  Having neutered us for a while they can go on ‘saving’ the world without our constant interference.

  • Has the statute of limitations run on federal charges of public corruption against Eric Holder for his role in the Marc Rich pardons? Anyway, we’ll just have to wait until the next Republican administration, and find a way to prosecute him for giving bad legal advice and cricumventing process in order to deliver on those pardons and let the Clintons earn their payoff from Rich.

    Of course that’s a ridiculous scenario, but it reflects nicely the who and what of the ridiculous “torture” prosecution idea.  

  • Rule of Law? Just extradite those villains to Spain and let the Spanish worry about the Rule of Law.

  • They’ll be charged with offering a legal opinion which differs with a subsequent administration.

  • Could be jaywalking, doesn’t matter really, does it?

  • The Frank Rich column “The Banality of White House Evil” should (and I know in some cases will) be assiggned reading.  The things done in our name are similar to the evils of totalitarian regimes and aspects of Nazism.  That many of you supported and defend such evil is disgusting.  Luckily, the American public is waking up, the truth will come out, and the idea that fear of terrorism — something that wasn’t truly a threat to our country — caused us to act in such a disgusting way will cause national shame moving forward, and that includes the horrors caused by the wars we ignited.

    It’s only beginning.  A new era.

    • the American public is waking up

      Um, Erb baby, 71% of the American public supports the use of torture. According to Erb Logic that means you support it too (remember, you’re the guy who keeps using public support as an argument).

    • Erb, since you are being as sanctimonious as an evangelical Christian, you need to be scrutinized.  Did you ever take issue with the Clinton Administration nabbing people through extraordinary rendition and handing them over to Syria and Egypt to be tortured?  Did you call liberal Clinton supporters “disgusting” for ignoring that policy while criticizing this policy?  If you did, prove it.  If you didn’t then you are a hypocrite just like the rest of the liberal, moral preeners in this country.  Do you think that the Egyptian, Syrian and Saudi Arabian intelligence services were more circumspect in their interrogations than the CIA under Bush?   Michael Scheuer said this about the torture that occurred as a result of Clinton era extraordinary rendition, “The Egyptians were not stupid. When we asked, they would not say they tortured our people. But everyone knew what was going on. The White House must have known.” 

      We waterboarded precisely three people in the aftermath of 9/11.  The rest of the enhanced interrogation techniques were essentially on par with fraternity hazing.  Do you know what kind of torture Egypt et al. committed when they received terrorism suspects from the Clinton run CIA?  The fact that this debate is limited to the Bush administration shows it is political.  Neither Erb nor any other liberal could care less about any of this.  Erb you are a sanctimonious hypocrite.  You are a liberal Ted Haggard.  Rev. Haggard Erb.  This is just an opportunity to pretend to be outraged and jab conservatives.  The fact that Erb and his fellow travelers use this issue as pretext for their hatred of George Bush and conservatives is disgusting.   

      • I was severely critical of the Clinton administration, and my first “blog” was opposing the Kosovo war (I also had a letter to the editor to TIME published harshly critical of Clinton’s actions.  I certainly opposed other violations of human rights.   Rather than respond to all the noise, my blog today (“Tortured Logic”) clearly states out why American should be ashamed of the fear-inspired actions undertaken the last eight years.  And you know, I think people are starting to wake up and make some changes.  About time!  The terrorists did little damage to us on 9-11.  We’ve done considerable damage to ourselves, especially as we sacrificed our core principles to fear.  That is shameful and cowardly.  (For more, click my blog).

        • Again, your focus on the last eight years and your failure to provide any proof expose your political motives.  Clinton turned people over to organizations that permanently maim the people they torture.  How do we know that they didn’t end up killing people after they drained them of information?  I didn’t ask about general criticism of the Clinton Administration or criticism of the war in Kosovo, I asked for proof that you were outraged at their policy of extraordinary rendition and outsourcing real torture.  If youweren’t, then your current outrage rings about as true as Nancy Pelosi’s shifting explanations about her approval of enhanced interrogation techniques. 

        • I did glance over at your blog last week, Scott. My annual visit. And I would agree with you, those who want to see a more extended display of your moral and intellectual confusion should indeed pay it a visit.

          As for your dissent from Clinton over Kosovo: big deal. Most of the time you would have run into an outhouse after Clinton had left it just so you could say the two of your were personally close. Don’t make me go into usenet archives for the “old bits,” Scott.

    • “Assigned reading.”

      Frank Rich is a theatre critic with his hands down his pants about politics. Last week he called everyone opposed to “gay marriage” a “bigot.” That’s well over half the country, and includes the Pope.

      His and your comparison of American intelligence officers trying to get to the bottom of the plans and planners of terror networks to Nazis is a typical old KGB agitprop gag. The real trick, though, was training the dogs to drool on hearing the comparison. But I’m not saying that Rich knows what he’s really doing either.

      One of the essential tactical moves of the terrorist when engaging in asymmetrical warfare is to use the moral center of the society he is attacking against that society. It’s a form of induced suicide.

      You jump for bait like that faster than the well-behaved dogs on Dog Whisperer, Scott.

      Or would you argue that you are conscious of what you’re doing?

    • This “new world” will likely result in new terror attacks and calls for payback.

      But really, Scott, I’m amused at the stupidity of your argument. Nazis? Yeah, we subject our troops to Nazi like torture? And you simply ignore that all the Dems in power in 2002 were just fine with this “torture”.

  • “The Banality of White House Evil”.

    Any White House in particular? I seem to recall a few things that Johnson, Kennedy, Carter, etc. did that might be included.

    Some of us  who think that any government is a necessary evil (although some here would argue about the necessary part) might be somewhat less than impressed  by Mr. Rich’s article.  I am sure, though, that Inspector Renault would be shocked.

    • FY everybody’s I, just in case: that “banality of evil” gag is a reference, I believe, to Hannah Arendt’s characterization of the top Nazis, with particular reference to Adolph Eichmann at the time of his arrest and trial and execution in Israel (circa 1960).

      As for Frank Rich: not so much banal as a lowlife, a pasty, bloated, sissy who found such favor among the New York Times more devoted readers as a nasty theatre critic that he was given a political portfolio and sent out to do the same sort of work.

      It’s no mystery that an academic political scientist like Erb, who genuinely knows nothing about his own field (or at least nothing that he’s not confused about), would be taken with what Rich offers.

  • >>>>Any White House in particular? 

    only republican ones off course 🙂

  • And the funny thing is, even with all the sturm und drung generated by the GET BUSH™ left, and the Democrats in control of Congress for over two  years now, waterboarding still, to the best of my knowledge, hasn’t been made explicitly illegal. 

    Come on Democrats! Where is your humanity?!?

  • I find it difficult to believe that a lawyer familiar with the Constitution of the United States could actually support torture for which we executed Japanes war criminals. Even a cursory review of the precedence should have come across this reference “The folks at Politifact interviewed R. John Pritchard, the author of The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East. They also interviewed Yuma Totani, history professor at the University of Nevada-Las Vegas, and consulted the Columbia Journal of Transnational Law, which published a law review article entitled, “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts.””

    More info here: