The Big Picture and the Closeup

On Advice of Counsel

            In discussing whether we should prosecute the people who ordered or committed torture, I’ve been drawing some artificial distinctions for clarity.  I’ve contrasted the working torturers, the folks who slammed other folks into walls and poured water over their airways, with the Pentagon and Langley brass who merely ordained it after it was blessed by counsel – as if only the latter had read what counsel had to say.

            Actually, the advice of counsel, the “torture memos” by the likes of Jay Bybee, John Yoo, and Stephen Bradbury, or at least the analysis underlying them, seem to have percolated well down the chain of command.  Some of the briefings and protocols on interrogation techniques provided to the working torturers contained legal analyses.  And many of the torturers, it now emerges, are being looked at by the Justice Department because their mistreatment of detainees exceeded even the harshness secret memos had countenanced.  So the reality here will be complex.

            We can be certain, though, that if anyone ever is prosecuted, we are going to witness a test of the “advice of counsel” defense in a context where at least U.S. law has never tested it before.

            Traditionally the “advice of counsel” defense applies only to specific-intent-to-violate-the-law crimes, i.e. crimes where an element of the crime is awareness that the conduct in question is illegal.  With crimes where such specific intent is not an element, by contrast, no amount of lawyerly advice about the legality of the act will matter one way or another.  Under U.S. law purporting to enforce the international Convention Against Torture, torture is a general intent crime.  That is, 18 U.S.C. §§ 2040-2040A, passed in 1994, does not require a specific intent to violate the law (though it does require a specific intent to cause severe pain and suffering).  Hence advice of counsel would appear not to amount to a defense.

            Into this apparently simple legal situation, however, was injected the McCain amendment to the Detainee Treatment Act of 2005.  In Section 1004,[Note 1]  it provides:

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

Codified at 42 U.S.C. § 2000dd-1(a).

            Care to venture a suggestion what this all means?  Your guess is as good as mine, because there seem to be no reported cases construing it yet.  What I take away is that in order for the conduct to pass muster, it must first of all have been signed off on by government lawyers for use against our detainees.  After that, it seems to be a defense that the accused did not know the acts were unlawful and  a person of ordinary sense and understanding would not know that either.  Finally, advice of counsel is evidence on the previous point.

            It is interesting that the statute implicitly acknowledges that the conduct can be unlawful even if “determined to be lawful.”  In other words, the Office of Legal Counsel saying it don’t make it so.  But having heard the Office of Legal Counsel saying what ain’t so can still be evidence that one failed to appreciate the illegality.  Not conclusive proof, but evidence.

            On the other hand, what do we make of the contrast with the person of ordinary sense and understanding “not know[ing] the conduct was illegal”?  And by what yardstick?  Remember, as we have seen in earlier pieces, the Office of Legal Counsel withdrew some of the secret memos as soon as there was a change at the top.  John Yoo’s Disbarable Incompetence (4/26/08).  The International Committee of the Red Cross was (not for publication) calling what was going on torture and hence illegal under international law for a long time – and under international law, the ICRC’s word is supposed to be authoritative.  Various Circles of Hell (4/28/09).  At the same time, in public, the Bush Administration was busy using all its still-considerable moral influence to proclaim its own moral innocence. 

            Now ordinarily, when statutes talk of persons with ordinary sense and understanding, they are appealing to some kind of consensus.  Here, in part because so much data and discussion were non-public, persons of ordinary sense and understanding were all over the lot on this issue.  And we know that the U.S. was or at least became an outlier, if not an utter pariah, among nations for its approach to these issues.  One person with ordinary sense and understanding would have “known” our interrogation techniques amounted to torture, another would have “known” the opposite.  And as what point in time would that assessment have been made?  While the detentions were still popular?  Today?

            In short, the “person with ordinary sense” criterion is ineffable, if not utterly unworkable.

            All we know is that McCain, in his haste to make peace with George Bush’s constituency en route to a presidential run in which he felt he needed their support, lent legitimacy to a move to fashion advice of counsel into some weird kind of defense to criminal and civil torture claims, where under the ordinary rules of criminal statutory construction, it would not have been one.  For McCain of all people to have done this is incredible.  And sad.

            As a practical matter, then, we cannot predict with confidence whether, if prosecuted on charges relating to the torture they ordered, the brass and/or the torturers would have a viable defense because counsel told them they were in the clear.  Even assuming a broad meaning for the defense, its applicability might be narrow.  As Anthony Romero, Executive Director of the ACLU, commented in a recent open letter to Attorney General Eric Holder, “[P]ersons who might not be covered by the ‘advice of counsel’ defense include:  persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense.”[Note 2]  That’s a long list.

            Next time we’ll think about the lawyers who gave the advice.

© Jack L. B. Gohn