washingtonpost.com
Harsh Interrogations: Could There Be Prosecutions?
Techniques Could Backfire and Might Violate U.S. and International Law

Stephen Vladeck
Constitutional Law Professor, American University
Wednesday, April 22, 2009 1:30 PM

Intelligence and military officials under the Bush administration began preparing to conduct harsh interrogations long before they were granted legal approval to use such methods -- and weeks before the CIA captured its first high-ranking terrorism suspect, Senate investigators have concluded.

Once they were accepted, the methods became the basis for harsh interrogations not only in CIA secret prisons, but also in Defense Department internment camps at Guantanamo Bay, Cuba, and in Afghanistan and Iraq, a Senate Armed Services report stated.

Stephen Vladeck, professor of constitutional law at American University, was online Wednesday, April 22, at 1:30 p.m. ET to discuss the legal ramifications of the interrogation policy.

The new findings are expected to add further pressure on the White House to authorize an independent investigation of the Bush-era interrogation policies. President Obama for the first time yesterday refused to rule out the possibility of a probe to determine whether government lawyers acted illegally in approving interrogation practices. Obama said Attorney General Eric H. Holder Jr. should determine whether they broke the law.

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Stephen Vladeck: Hi everyone -- Thanks for participating in today's chat. I'm Steve Vladeck, an associate professor at American University Washington College of Law here in D.C. I teach both constitutional law and national security law, and am therefore particularly interested in the public debate over whether (and to what extent) the new Administration should look into the abuses arising out of the interrogation techniques deployed against terrorism suspects during the past eight years, and the role of senior White House, Department of Defense, and Department of Justice officials in authorizing such coercive (and potentially torturous) methods. My own views on what should happen going forward are a bit complicated, but I start from the proposition that we still don't know enough about what happened, and under whose direction, and so the real imperative in the short-term should be the gathering of more information...

But I think there are also perils to overzealously going after prior Administration officials, and so I'm very much looking forward to your questions!

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Boston, Mass.: A dumb question: which entity is more powerful, the OLC or the Supreme Court?

Stephen Vladeck: This is not a dumb question at all. Recent events have brought new light to the role of the Justice Department's "Office of Legal Counsel" (OLC), which issues legal opinions that bind the Executive Branch. In a way, then, OLC actually has analogous authority to the courts -- they decide legal disputes in a manner that binds at least some actors.

That being said, I think it is undisputed that the Supreme Court's resolution of a question of federal law would bind the OLC... the issue that has arisen of late is what happens when OLC issues a secret opinion, and so there's no ability for anyone to publicly challenge it in the courts.

There's been some movement in Congress to circumscribe OLC's powers to issue secret opinions. You might want to check out H.R. 278, the OLC Reporting Act of 2009, for more on this...

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Atlanta, Ga.: What exactly does the Constitution say about torture, if anything?

Stephen Vladeck: The Constitution bars "cruel and unusual punishment" (in the Eighth Amendment), and the Due Process Clause of the Fifth Amendment has also been understood to bar governmental conduct that "shocks the conscience" (in a Supreme Court decision called Rochin v. California).

But separate from the Constitution, federal law (specifically the anti-torture statute, 18 U.S.C. 2340 and 2340A) and the U.N. Convention Against Torture both make it a serious criminal offense to torture. Indeed, even the Military Commissions Act of 2006, which Congress enacted to authorize the trial of terrorism suspects in military tribunals, includes as one of its 28 specific offenses the crime of "torture."

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washingtonpost.com: Harsh Tactics Readied Before Their Approval (Post, April 22)

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Arlington, Va.: Dear Professor Vladeck - thanks for chatting today. If, one way or the other, one or more persons are prosecuted for torturing detainees, doesn't that implicate the president's authority to conduct foreign affairs? Wouldn't the federal courts be extremely reluctant to let such cases go forward? Might they invoke something like the political question doctrine to punt on the issue?

Stephen Vladeck: I think the answer to this depends on who knew what. It's one thing for government officials to act based upon what they reasonably believe is legal. It's another thing altogether for those officials to undertake conduct that they knew (or should have known) was unlawful. That's why the debate over these memos is so central to the current conversation. I think it's entirely possible that a CIA officer or servicemember could reasonably have believed that they received correct advice about the state of the law, but given how little they who wrote the memos seemed to care about prior legal precedent, it might be harder for _those_ officials to claim that they were acting in good faith.

As for what the federal courts will do, criminal cases initiated _by_ the government are very different from civil cases against the government, and are almost never thrown out because they raise a "political question." I suspect courts will zealously guard the defenses that will be available to any government officer who is prosecuted, but the real question is what the Department of Justice will do -- and whether they will bring any cases in the first place.

One last thought on this: It cannot be the case that a government memo could always immunize the conduct of government officers where foreign policy was concerned -- imagine, for example, if a memo claimed that slavery was, in certain circumstances, lawful, at least when practiced overseas. So the question is what the standard for liability should be, both for the officials who write the memo, and for the officials who act based upon it...

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New York: Stephen, I would like to see a vigorous investigation of the torture issue (as well as the warrantless surveillance activities). But how do we conduct it without the taint of partisanship? Especially if charges are filed as a result, this could become a political circus, instead of a search for the truth. Thanks.

Stephen Vladeck: As someone who lives both physically and mentally "inside the beltway," I think this question is a really big deal, and I'm not sure what the answer is.

One thought would be to try to create a bipartisan (or non-partisan) investigative commission, along the lines perhaps of the 9/11 Commission, and to ensure that this body has the subpoena and contempt powers, but is also free of political influence from the current Administration or from either party in Congress.

Another possibility is to appoint a "special prosecutor," like the one (Patrick Fitzgerald) who was appointed to investigate the Valerie Plame affair... Even though Fitzgerald is a Republican U.S. Attorney appointed by a Republican President, I think it's fair to say that his investigation was _not_ marred by charges of partisanship...

But these are tricky questions, and part of why some people think a "truth commission" model would work better than criminal prosecutions. After all, criminal prosecutions have historically been more about "justice" than about finding the truth...

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washingtonpost.com: INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY Report (pdf)

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Chicago, Ill.: What are the relevant constitutional and statutory provisions that prohibit U.S. officials from engaging in torture? Much talk has been made of our signatory duties under the Geneva Conventions, but surely there are other domestic prohibitions in place as well?

Stephen Vladeck: I think one of my earlier answers may have covered this ground, but the particular provisions that matter here are 18 U.S.C. 2340 and 2340A, the U.N. Convention Against Torture (which we have at least largely incorporated into domestic law), and the constitutional prohibitions on cruel and unusual punishment and on conduct that "shocks the conscience."

As for what offenses the lawyers _may_ have committed, there _is_ precedent for charging lawyers for the misconduct of their clients when the lawyers have actively facilitated their clients' unlawful activities. The question, then, would be whether they _knew_ that they were condoning conduct that was actually in violation of both domestic and international law, or whether, instead, they were just sloppy.

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Fairfax, Va.: Sir, I just don't see how one could be held criminally liable for rendering a legal opinion. Similarly, if the OLC itself declares a technique to be legal, it seems perfectly reasonable that those using it acted in good faith. All of this seems to me to be more a case of those on the far left grasping at straws, looking for a way to punish SOMEBODY in the Bush administration. The career civil servants should be left out of it.

Stephen Vladeck: With respect, I think it's unfair to refer to calls for further investigations as "grasping at straws." The events of the past week, in particular (the publication of the four OLC memos and Tuesday's publication of the Senate Armed Services Committee's report), are too damning to ignore.

I agree with you that it may be _difficult_ to hold specific individuals liable. I also agree that CIA officers or military personnel who reasonably believed that the OLC memos were valid should have a pretty good defense if they are ever prosecuted. But that's not the same thing as saying that nothing happened that's worthy of our attention... Personally, I do think that there were senior Bush Administration officials who knew better, and I think that it is _those_ folks on whom our attention should be focused.

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D.C.: Better question (as far as I'm concerned anyway). Will the lawyers responsible for the memos be hauled in front of their state ethics boards for incompetence? I've read the Yoo et al memos and it was glaringly obvious that they failed to meet any acceptable lawyerly standard. The memos in question took archaic pre-UCMJ, pre Geneva Conventions caselaw and attempted to paint a current justification for obviously forbidden practices. I'm also a federal employee, an Army veteran, and a 3E student at another law school here in town, and I take Yoo et al's actions as a personal affront.

Stephen Vladeck: The ethics question is fascinating, and I should begin by noting that I am not an expert on legal ethics (and hope never to become too personally familiar with their limits).

But it is true, I think, that we should be asking whether any government lawyers rendered legal advice that is so patently false as to constitute unethical work product. To that end, I'm pretty sure that a number of groups have pursued ethics complaints against at least some of the lawyers in states in which they are licensed to practice. But state ethics boards are not likely to take on whether the federal government's Justice Department acted unethically, even where they have good reason to do so. That's why I think the state ethics route, even if available, isn't likely to go very far.

Perhaps the better ethics lesson here is for my colleagues and I, as educators of the next generation's lawyers. What will the next OLC lawyer do the day after the next terrorist attack when the President wants to know the limits of his powers? That's the question that keeps me up at night, and the reason why I think it's so important not to let these current charges go uninvestigated...

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Washington, D.C.: What precedent, if any, do you believe Nuremberg will have in the future if America doesn't prosecute anyone for the war crime of torture? Will international law only be vindicated through Victor's justice?

Stephen Vladeck: I'm glad you brought up Nuremberg... there's a controversial precedent from the Nuremberg trials known as the "Justice" case, where

Stephen Vladeck: the Allies prosecuted both Nazi judges and lawyers from the Nazi Ministry of Justice for their complicity in the Holocaust. It's controversial, though, because we have to carefully draw the lines between a nation's right to have laws different from our own and the point at which their laws violate fundamental norms of international law.

I do think we risk sanctioning impunity if we don't at least _investigate_ fully all of the charges that have been leveled. I worry, though, about rushing to judgment on prosecutions. Once we have all the information about who knew what, and when, we'll be in a better position to decide who is most responsible, and what consequences they should face...

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Miami, Fla.: Even if there are charges brought, what are the chances that anyone involved is actually sentenced to jail time -- assuming that they are convicted]? I highly doubt any judge is about to sentence John Yoo to time in a federal penitentiary.

Stephen Vladeck: I suspect that your intuition is correct -- that even if prosecutions go forward, no one will spend a long time in prison for anything that happened to these detainees.

There's a famous case we teach in criminal law classes called "Dudley and Stephens" where two shipwrecked men survived only by eating their third companion... they were ultimately found guilty and sentenced to death, but their sentences were commuted because they had no choice. I think the same idea is true here -- liability and length of sentence are two different things, and it would create an important precedent even if very little jail time was actually served...

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Juneau, Alaska: Hi Stephen -- What "crimes" could either the lawyers who wrote these memos, the folks that orders someone to be tortured and the torturers themselves be charged with?

Also if Bybee loses his license to practice, would he have to resign from the court?

Stephen Vladeck: I think I addressed the question about what the lawyers could be prosecuted for above...

Judge Bybee is a bit more complicated. He has life tenure as a federal judge, and so could only be involuntarily removed through impeachment. It wouldn't be a bar to being a federal judge to not have (or even lose) one's law license... Short of impeachment, it would just create pressure, methinks, for him to consider resigning.

But to be clear, I'm even more nervous about holding judges accountable for conduct they were involved in before they became judges. To me, the real question vis-a-vis Bybee is whether he did anything to mislead the Senate Judiciary Committee when he was nominated for (and ultimately confirmed to) the Ninth Circuit... if not, then I think it would be very difficult to pursue a case against him...

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Fairfax, Va.: People keep tossing around the term "good faith" as if this is the key issue? Could you please help me understand just what this means and if it really is as important as some suggest?

Thank you

Stephen Vladeck: The "good faith" phraseology is a bit of a catch-all phrase for the broader idea that government officers are entitled to push the envelope, and cannot usually be held liable for unlawful conduct if they reasonably believed that what they were doing was lawful...

So, for the actual interrogators, I think it's entirely possible that they could reasonably have believed, based upon the legal advice they received, that what they were doing was not illegal (even if it was). The harder question is whether the _lawyers_ who dispensed that legal advice reasonably believed that what _they_ were doing was lawful--and we might fairly expect more of the lawyers, who have an independent obligation to know the law separate from their responsibilities to their employers...

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Dunn Loring, Va.: You cite both the 8th and 5th Amendments, as well as U.S. statutes, re banning the use of torture. However, what authority can you cite that any of those provisions apply to non-American terrorists held outside of the U.S.?

Stephen Vladeck: Not to get into legalisms, but I think it is pretty widely agreed that the prohibition on torture is a "jus cogens" norm of international law, and so applies everywhere (and to everyone). I agree that the case law cuts against the notion that non-citizens are protected by the Fifth and Eighth Amendments overseas, but the same logic doesn't hold for the anti-torture statute. Indeed, in the first-ever prosecution _under_ the anti-torture statute, the U.S. government convicted Chuckie Taylor for crimes committed in _Liberia_!

So even the Justice Department appears to believe that 2340 and 2340A apply extraterritorially...

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Park Ridge, Ill.: Just to correct one misstatement: Patrick Fitzgerald is not a Republican. He is a registered Independent, appointed by a Republican administration.

Stephen Vladeck: Absolutely right -- apologies for the misstatement!

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Washington, D.C.: What reasons are there, if any, for not prosecuting those responsible for drafting these torture memos? For those that carried them out? Do you believe these reasons are outweighed by the reasons for prosecuting?

Stephen Vladeck: I think we've already touched on some of the reasons in both directions.

Re: why not to prosecute, prosecutions could be dismissed as a political witch-hunt, and so the value of any precedent might be diminished by concerns that it was "Victor's Justice." Worse, I worry about requiring government officials to not pursue reasonable interpretations of the law in the future if they fear criminal liability after the fact.

Re: why to prosecute, it would set a terrible precedent if senior government officials knowingly facilitated the torture of individuals in U.S. custody and were never called to account. As our Founders were fond of saying, ours is a government of laws, not of men. To give meaning to that aphorism, the law must apply to everyone, no matter the circumstances, and no matter their rank in the government...

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Tampa, Fla.: To what extent is prosecuting the authors of the OLC torture memos analogous to prosecuting mob attorneys who act as consiglieres, helping plan illegal activities, as opposed to merely giving legal advice on criminal defense matters? The former has lead to prosecutions and convictions.

Stephen Vladeck: So it has... the government has also prosecuted a lawyer in New York named Lynne Stewart for her role in allegedly aiding and abetting the acts of her clients--suspected terrorists.

These cases are clearly different, since these are government lawyers, and so raise a host of issues some of which we've been discussing here...

But it is simply _not_ unprecedented to prosecute lawyers when their advice is so poor as to itself facilitate criminal activity. Once we get past that point, we turn to the harder question: Where is the line between being a zealous advocate and breaking the law? That's what makes these cases so tricky -- and so important.

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Media, Pa.: Judging from reports in the Times this morning, it appears that the Justice Department authors of the memos did not do rudimentary research, which would have disclosed the existence of adverse precedent with which they were obliged to deal -- as attorneys. Do you see this as a potential basis for disbarment, regardless of whether the authors are criminally prosecuted?

washingtonpost.com: In Adopting Harsh Tactics, No Look at Past Use (The New York Times, April 21)

Stephen Vladeck: We touched on the ethics question a little bit earlier, but I do think it is telling how little the various officials involved seemed to care about history... (I'm reminded of the famous maxim that those who fail to study history are doomed to repeat it).

The real reason why these reports may matter is because it's possible (emphasis on possible) that certain officials were _deliberately_ indifferent to precedent. It's one thing to be careless and sloppy; it's quite another to choose not to look. And that may have a lot to say about whether any particular officials end up facing charges.

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Providence, R.I.: Having just finished reading Jane Mayer's The Dark Side, I could not help but wonder about the Nuremburg precedent. Is it really satisfactory to claim "I was following orders"? That was not a satisfactory defense then, why should following orders immunize anyone, policymakers, legal counsel, or agents who engaged in torture, especially in light of the refusal of the FBI and some military officers to get involved in torture, which made it clear the behavior was quite likely illegal?

Stephen Vladeck: "Following orders" is still a valid defense _most_ of the time. The question is whether the person following the orders (1) knew that he was being asked to do something unlawful; and (2) had any means available pursuant to which he could have refused to comply. I think the key here is the first prong -- some of the interrogators may have been particularly savvy about U.S. law and the various prohibitions against torture, but unlike Nuremberg -- where the crimes committed by the Nazis should have been clear to any competent adult -- I think there _is_ some room for debate here, at least where the on-the-ground personnel are involved. That's why _what_ they knew, and _when_ are so important...

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Atlanta, Ga.: Please expand on your thought" it would create an important precedent even if very little jail time was actually served...".

Stephen Vladeck: This is just speculation, to be sure, but I think it would set a precedent for a government lawyer who _should_ be tried to be tried and convicted even if they ultimately receive very little jail time, because it would probably have a devastating (if not fatal) effect on that lawyer's professional career. The deterrence question in criminal law is always tricky, but my own suspicion is that it would be enough of a precedent to hold someone to account even if they aren't forced to spend a significant amount of time in jail.

As I said, though, this is my own speculation...

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Miami, Fla.: Are these members of the previous administration shielded from criminal prosecution by any sort of immunity? Also, could this open any of them up to civil liability? Is there anyone who could actually have standing to sue?

Stephen Vladeck: There is almost no question that President Bush would have what we call "absolute immunity" from civil liability for any conduct in which he was involved while in office. With regard to civil suits, most other executive branch officials would be entitled to a defense of "qualified immunity," which is the legal version of the idea we've been discussing, i.e., that government officers can't be held liable unless they reasonably should have known that what they were doing was unlawful. So, I think it would be an uphill battle on civil liability -- although Jose Padilla, a U.S. citizen who was detained for over five years as an "enemy combatant," has brought a civil lawsuit against some of the responsible officials, including John Yoo.

Criminal charges are a bird of a different feather, though. Most constitutional law scholars believe that you would first have to "impeach" a former Vice President or President before you could prosecute them (I know -- it's a bit strange), but anyone below that _could_ be prosecuted. I do think, though, that any such official could mount a fairly vigorous defense based upon some of the same themes we've been discussing here.

This brings me to pardons: One thought that has been thrown around is that President Obama should offer a pardon to any official who is willing to come forward and testify to everything that went on, on the ground that what they did was wrong, but that it's more important to create a public record than to prosecute. I think that, too, is controversial...

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London, U.K.: I'm afraid I've not yet had the chance to read through all the memos. Do they address the fact that torture generally doesn't work in the sense of providing reliable information, as any student of history understands? If so, how do they justify -- or not -- using torture anyway?

Stephen Vladeck: To be blunt, no. The heavy volume of data that suggests that torture is ineffective is virtually never cited in any of the memos, or in any of the other internal discussions of interrogation policies to which the public now is privy.

It's interesting, because in one sense, focusing on torture's effectiveness suggests that it would be different if torture _did_ work, when many people believe it would not be. I think that's why you don't see more discussion of this point...

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New York, N.Y.: What's the difference between "harsh interrogations" you keep writing about (and the title of this chat) and actual "torture"? If it's the same thing, then why not just call it "torture"? I don't get it.

Stephen Vladeck: To be fair, I think part of why various people are hesitant to use the term "torture" is because the previous Administration and its supporters have been incredibly successful at creating doubt as to how clear we are that "torture" took place. I've been on panels at conferences, for example, with folks who still assert that there were only isolated acts of torture, and that they weren't authorized at high levels.

But I don't think these points are open to doubt anymore. The OLC memos, the SASC Report, and the Red Cross report that was discussed in a wonderful article in this month's New York Review of Books make it abundantly clear both how widespread the _torture_ was, and how often we used other techniques that, even if not "torture," were certainly pushing the limits of what could possibly be legal. (Remember -- international law does not only prohibit torture; it prohibits cruel, inhuman, or degrading treatment as well.)

So in that sense, I am part of the problem! As much as I usually am willing to concede that reasonable people and I will disagree, I think we're now past the point where reasonable people can believe we didn't torture, or that top government officials didn't know we were...

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Houston, Tex.: I have been wondering what legal issues may arise for those in Congress who were briefed on the torture program.

My understanding is that the White House, CIA and Pentagon wanted to get tough, and so got their pet lawyers to write a permission slip to provide cover for engaging in torture. At some point, the top intelligence committee folks got briefed on the program, and according to some administration folks, they were briefed multiple times.

In my view, this is the reason we have divided government, the executive branch was making a pretty extreme legal fig leaf for torture, and it was up to the co-equal legislative branch to provide oversight of their activities.

It seems they were unable to disclose these matters due to their classified nature. If these programs are deemed to be in violation of our laws and treaty obligation (which is my personal view), and high level congressmen and women tacitly signed off on them, are the liable for any legal fallout?

Constitutionally, how can legislative branch members work to reign in executive branch overreach if they are forbidden to even discuss the matter with staff?

Stephen Vladeck: The question of Congress's role is equally important, and I hope it won't get lost in the broader debate going forward. I think it is a bit spurious for members of Congress to assert that there was nothing they could do. Even if they couldn't disclose particular information, they could pursue investigations based upon what _was_ in the public record.

That's why, going forward, I think we need to re-think how carefully Congress provides oversight, even when the same party controls both political branches (as was true for much of 2002-2006 and as is true today). We live in a country with separated _powers_, not _parties_, and I think we've lost sight of that.

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Stephen Vladeck: Thanks to everyone for their great questions, and to the Washington Post staff for inviting me to participate in today's chat. I'm sorry that I wasn't able to get to all of your questions, but want to invite those of you who are willing to e-mail me (svladeck@wcl.american.edu), if you'd like to discuss these topics further.

Happy Wednesday, everybody!

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