Certainly, anyone can prosecute them, but would we be able to put someone in jail for such behavior? In Cheek v. United States and Ratzlaf v. United States, the Supreme Court held that if you have an honest, good faith belief that you are not breaking the law, then you do not have the willful intent necessary to commit a crime. This ruling only applies to areas of the law that are complex, like tax law. However, one could say that CIA interrogation protocol is pretty complicated. If these people thought they were covered by the law, then they did not have the specific intent to commit the crime.
Generally, ignorance of the law is no excuse, but the Court did not want to punish a good faith misunderstanding of complex laws. Some courts point out that tax regulations, for example, are mala prohibitum (regulatory crimes like tax evasion) as opposed to mala in se (crimes that are evil by nature, like murder), so the ruling makes sense in all regulatory situations. In Staples v. United States, Justice Thomas stated that ignorance of the law can be an excuse, but it cannot be if you are dealing with, for example, a hazardous product that obviously would have regulations that you should have checked out. In the torture situation, it would be fairly evident to a CIA operative that interrogation techniques would be well-regulated, but if an operative had access to a letter from a DOJ attorney stating that waterboarding was okay, a non-lawyer could reasonably believe that such a memo was authority enough for what they are doing.
Some would argue that waterboarding is mala in se and that the operatives should have known that it was per se illegal. However, I think that the average CIA field operative probably participates in a lot of activities which would be considered mala in se illegal in my world, so their authority is not so clear cut.
The real problem lies with the lawyers, like Bybee, who drafted the memo. The torture memos show poor work by attorneys who quite obviously avoid any mention of cases which state that techniques like waterboarding are illegal. Bybee and his colleagues were telling the White House what it wanted to hear without regard to what the law actually said. I can certainly understand that one would want to provide the reasoning that helps the White House. However, no lawyer should be disregarding established law to the contrary of what he wants to prove. No one has said Bybee and his colleagues will definitely be prosecuted, but regardless, they should at least be disbarred.
The world prosecuted Nazi war "criminals" when what they did was technically legal under Nazi law. I'm OK with that, but those were for things that would be analogous to crimes mala in se in the global sphere.
ReplyDeleteIt's not hard to make an argument that waterboarding fell into a bit of a gray area between torture and legal interrogation techniques, at least when dealing with non-citizens who are pseudo-war criminals. It's all a bit messy.
But deciding to prosecute CIA ops would be the same thing as going after lower level Nazis because the higher ups were either dead or shielded. It doesn't do any good, and that's not what the law is for. In the end, all prosecuting CIA ops for waterboarding would do is be a political statement, and although it would be one that I agree with, making such a statement would misuse the legal system. I would agree with going after the attorneys for misconduct either in the legal or attorney ethics spheres.
I do not think that there is a strong argument that waterboarding isn't torture. It doesn't matter that they were non-citizens or that they are pseudo-war criminals or that they may have had information we needed. Those issues are only relevant to prosecution and guilt of the people who performed it, not to whether it constituted torture.
ReplyDeleteEven if we followed what the Bybee memo described as acceptable waterboarding, the Gitmo operatives far exceeded the limits which were set forth in that memo, so they are no longer protected even under Bybee's definition of torture. I do not believe there is much of a gray area that there was torture involved.
I am not sure I agree that prosecuting lower level operatives would only be a political statement. It would no doubt be used that way, but if they broke U.S. law, then they should be prosecuted. I understand the political motivations not to prosecute, but to avoid prosecution to prevent a political statement would be a misuse of the law as well. My point was more that I don't think there would be a good case against the operatives if we wanted to prosecute.
Also, I did not mean to address whether they could be prosecuted on the world stage for war crimes. That's a whole different issue that I know too little about. I only meant to discuss what they could be brought up on in the U.S.
I want to respond to this on the merits when I have a more functional brain, but I do want to compliment Mama Z on her use of signals and case law. Legal citation makes the blog seem more credible and balances out our pop culture analysis and LOST conspiracy theories. Go Cats!
ReplyDeleteDitto, Rachael. Though, it'd be really freaking sweet if this was an area of law in which intent does not matter. Criminal prosecution would be out, but a hefty civil penalty would be just as useful, I think...
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