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Ireland v. United Kingdom and the prosecution of Bush officials:

In all the chatter that has gone on regarding demands for prosecution of Bush administration officials under the federal torture statute, remarkably little attention has been paid to the case of Ireland v. United Kingdom--even though that case is discussed extensively in the August 1, 2002, Bybee memorandum which has been the subject of the such great controversy.

Although the memorandum has been criticized on other grounds (such as its facile assertions regarding presidential war powers), it cannot be criticized regarding its accurate presentation regarding Ireland v. United Kingdom.

That case arose from the UK's use of "the five techniques" in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a "stress position"; hooding; subjection to noise; sleep deprivation; and food and drink deprivation. In other words, quite similar to many of the techniques used by the CIA to interrogate captured terrorists.

The Grand Chamber of the European Court of Human Rights ruled that these techniques do not constitute "torture." For "although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." (Para. 168.) Instead, "recourse to the five techniques amounted to a practice of inhuman and degrading treatment." Accordingly, since Article 3 of the European Convention on Human Rights outlaws inhuman and degrading treatment, the Court ordered the U.K. to cease use of the five techniques.

Now, if you are a Department of Justice attorney analyzing the question of whether you can bring a case which will result in a conviction under the federal torture statute, you have to acknowledge numerous obstacles:

Although the Convention Against Torture, which has been ratified by the U.S. Senate, forbids both torture and "Other Cruel, Inhuman or Degrading Treatment," that treaty is implemented in U.S. domestic law by the federal torture statute, which outlaws only torture.

People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.

Now, if people want to argue that degrading treatment of captured terrorists violates some other federal law, maybe there is a case that can be made. It just strikes me as highly unlikely that a conviction could be obtained under the federal torture statute.

Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.

Of course if you want to invent your own set of facts--such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War--then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.

John Podesta's "impeach Bybee letter" appears to be unsupported on a crucial legal point:

A legal memorandum signed by Judge Bybee when he was the head of the Office of Legal Counsel and recently released by the Obama administration approved the use of cruel, inhuman, and degrading techniques, including waterboarding, slamming a detainee into a wall, depriving a detainee of sleep for up to eleven days at a time, and trapping a prisoner in a "confinement box" with insects in order to induce terror. The techniques endorsed by Judge Bybee's memoranda violated U.S. law and our commitments under the United Nations Convention Against Torture.
It can certainly be argued that approval of the degrading techniques violated "our commitments under the Convention Against Torture." But as for the claim that the techniques "violated U.S. law," Podesta does not specify which particular law; if he's referring to the federal torture statute, his assertion that there was definitely a violation seems overstated. (Since the CAT is a ratified treaty, it can be called "U.S. law," but Podesta's phrasing seems to indicate that he is talking about something in addition to CAT itself.)

A conscientious DOJ attorney who is contemplating the possibility of a successful prosecution under the federal torture statute will undoubtedly be aware of the talking point that the Americans executed Japanese war criminals for waterboarding. Mark Hemingway has written on this topic at National Review Online. For the moment, let's put aside any factual differences in how the waterboarding was done by the Japanese and the Americans. If you follow Hemingway's links for the war criminals who were executed, and then click the "legal procedure" tab, you can find the particular crimes for which they were convicted. Some of them were convicted of crimes related to mistreatment of prisoners of war. But these convictions are for violating the laws of war. Under the laws of war, prisoners of war are not supposed to be subject to degrading treatment (e.g., wall-standing, noise) nor to torture. Accordingly, the convictions for the seven executed Japanese do not imply a legal determination that waterboarding by the Japanese constituted torture, as opposed to degrading and inhuman treatment.

If you want to make a case that it is a crime under federal law not to treat al Qaeda terrorists as lawful prisoners of war (which means that they are not even supposed to be interrogated against their will), go ahead and try. But that's going to involve a different statute (if you can find one) from the federal torture statute.

Over at the excellent international law weblog Opinio Juris, Australian law professor Kevin John Heller insists that prosecution of Bush officials would be straightforward and obvious. I suggest that it would be much much more difficult than the prosecution enthusiasts seem to admit to themselves.

It is sometimes claimed that under the CAT, prosecution is mandatory. But Article 7 of CAT states that after a referral of a matter to the prosecuting authority, "These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." Which means, in the context of the United States, that the prosecuting authority have essentially limitless discretion not to bring a case, and that discretion certainly includes choosing not to prosecute a case because of the daunting odds of obtaining a conviction.

In support of prosecuting Judge Bybee and other lawyers, Heller pens an interesting post about the Ministries case; in that case, some high-ranking German lawyers were successfully prosecuted for having approved the deportation of French Jews; the lawyers did not contest the allegation that they knew the deportations to be flagrantly illegal. To Heller, prosecuting the American lawyers is even easier than prosecuting the Nazi ones, "because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime."

Well, sure, if you think that you can prove that the American lawyers did not actually believe their own arguments. But the Ministries Case depended on the defendants not contesting the point that they knew the deporations were illegal; if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:
175 Comments

More Thoughts on the Legal Barriers to a Torture Prosecution: In his post below, my co-blogger David Kopel considers some barriers to criminal prosecutions for torture of detainees during the Bush Administration. It's sort of hard to get into the details of the legal issues here because no one has been charged; the merits would depend on who was charged and for what. With that said, I did want to offer a few tentative thoughts about these issues.

  First, I think the important legal barrier to prosecution that David does not mention is the "entrapment by estoppel" defense, permitting reasonable reliance on an official statement of law -- here, the OLC opinions. How this would apply isn't entirely clear to me, as it would get into some difficult questions of what it means to reasonably rely on memos that assumed a set of facts that may have been inaccurate (such as the effect of the different interrogation methods, assumptions that were a big part of the reasoning of the memos). But that would also presumably depend on the individual prosecuted: Reasonable reliance is very fact-specific, and we would need to know exactly what the defendant knew about what OLC had said.

  The availability of an entrapment by estoppel defense would then raise all sorts of questions about classified information. Say a defendant is indicted, and his defense is that the details of the briefing he received on what he could do specifically allowed what he did. The court would need to get into questions of what information can be disclosed about this under the Classified Information Procedures Act, raising serious tensions between the due process rights of the defendant and the need to keep classified information secret.

  David raises the necessity defense as a possible defense. He writes:
My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.
  Self-defense wouldn't realistically be raised in a case of interrogation, at least barring very strange circumstances, so I think the real issue here is necessity. It turns out that the Supreme Court has not recognized a general necessity defense in federal criminal law, and the caselaw on whether and when it exists is pretty mixed. See generally Steven S. Schwartz, Note, Is There a Common Law Necessity Defense in Federal Criminal Law?, 75 U. Chi. L. Rev. 1259 (2008).

  I agree that the Supreme Court would likely recognize such a defense in the case of criminal charges for torture. At the same time, it's worth noting that the necessity defense (to the extent it exists in federal law) is actually quite narrow: It generally requires an imminent threat and no reasonable legal alternatives. See, e.g., United States v. White, 552 F.3d 240, 247 (2d. Cir. 2009). It wouldn't be enough for a defendant to say that he thought there was a risk of an eventual attack and that the enhanced interrogation techniques were on the whole a good idea.

  Finally, David mentions the Rule of Lenity and the case of Ireland v. United Kingdom. I tend to doubt either would play much of a role. The Rule of Lenity exists, but it is very in narrow in practice, Some observers would say it exists in theory but not in fact. And I'm not sure how Ireland v. United Kingdom is relevant: it is not an interpretation of U.S. law, as I understand it, and in any event it covers only some of the techniques authorized by DOJ in its memos.

  Anyway, I suspect all of this is academic. I don't expect the Obama Administration to charge anyone. And I should stress that my take on the legal issues here are tentative: I usually focus a lot more on surveillance issues than interrogation issues, so I haven't focused on the legal issues here as closely as some others. Still, I did want to offer a somewhat different take on some of the legal issues.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:
119 Comments