Disbar Bybee!, cont'd.

Apparently, I am not the only one who thinks that we might not have a good case in U.S. courts against the CIA operatives in Gitmo; Bybee himself discussed the application of the Cheek case as it pertains to torture. Apparently though, he and I are wrong. It doesn't sound like Cheek would apply after all. The discussion below this post points out the difference between specific intent and willfulness. In this case, the operatives would have had the specific intent to commit the acts of torture, and the good faith defense in Cheek does not negate specific intent, only willfulness, which states that people need to know what they are doing is illegal. Therefore, the operatives would need to show that there was a requirement of willfulness that applies to laws banning torture.

Disbar Bybee!

In the wake of the release of various torture memos, President Obama has stated he does not believe that the people who committed torture under the impression that they were legally allowed to do so should be prosecuted. I am not certain I agree with that thinking, but the question is: if we wanted to prosecute them, could we?

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.