The Jury Talks Back


“Torture” Memo Prosecution — What Are The Charges? What Is The Evidence?

Filed under: Uncategorized — WLS @ 12:59 pm

Posted by WLS Shipwrecked:

In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton of the “Torture” memos. 

It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations — they actually did something that might fall within the parameters of the statute, if their actions are found to satisfy the definition of “torture” that was readily discernible from the language of the statute.

But they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (“guilty mind) necessary to establish knowing criminal conduct.  When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice.  If the actions went beyond the scope of the advice given, that would open up a potential prosecution.  But there is no factual record that I’m aware of suggesting that the use of enhanced interrogation techniques following the issuance of the memos was different than that described in the memos.

Prosecuting the officials who offered the advice is a different question.  But what would be the charge?  It can’t be “Torture” under the statute — they didn’t do anything.  They simply responded in their official capacity to a question raised by another governmental entity. 

I would first caution you to read the actual memos — which I suspect Andrew Sullivan has never taken the time to do. 

Two things you need to take into consideration:

1)  Provide a solid legal explanation about why the enhanced interrogation techniques described and authorized by the memos fall within the prohibition of “Torture” as prescribed by 18 U.S.C. Sec. 2340 and 2340A.  If they weren’t “Torture” as defined, then there is seemingly no basis for prosecuting the drafters of the memos which authorized their use.

2) How does the act of drafting of the memos setting forth a legal analysis of these interrogation techniques, and the application of the torture statute to them, fall within the prohibition of that statute — or any other statute?

It’s one thing to say that members of the previous administration should be prosecuted, it’s quite another to set forth a cogent and persuasive legal theory upon which such a prosecution would rest, and the evidence that would prove beyond a reasonable doubt the mens rea and actus reus necessary to sustain a criminal conviction.  

It’s tiresome to hear critics simply say “Waterboarding is torture. Prosecute them all.” 

The memos state that waterboarding, in the specific method advocated by the interrogators, does not fall within the prohibition on torture.  Other forms of waterboarding might — such as that used by the Japanese in WWII that often resulted in the drowning of the person undergoing the procedure. 

Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?  Reading the memos is necessary to answering this question.

How does the act of engaging in this analysis — even if the legal conclusion reached is erroneous —  fall within the prohibition of any criminal statute?


  1. And, of course, the fact at least one major attack (on Los Angeles) was prevented directly by these interrogations will have to be withheld from the jurors.

    Comment by Kevin Murphy — 4/21/2009 @ 1:13 pm

  2. It is a mistake here to assume that there will be trials that would be determined upon the criminal statutes and law. Instead there will be, at least if the Obama administration has its way, show trials, in one form or another, which would be judged by public opinion, fed by 24 hour cable news reporting. This would allow diversion from the miserable economic policy of the administration and continue the piling-on of blame for the Bush administration. Terrible idea for the country, but great for Team O.

    Comment by Patrick — 4/21/2009 @ 3:43 pm

  3. Perhaps we could have a Truth & Reconciliation circus about the mortgage meltdown. But no. Too many Democrats doing the perp walk.

    Comment by Kevin Murphy — 4/21/2009 @ 4:58 pm

  4. WLS,

    In Illinois, the Attorney General’s opinions are binding law. As a defense to prosecutions, at least (or, that’s as much as I know). Is that the rule in the federal system?

    Comment by nk — 4/21/2009 @ 5:33 pm

  5. There may not be trials but there probably will be Congressional hearings. So how would you counsel a client called to testify before Congress? Even though I don’t think the lower level CIA and/or military personnel did anything wrong, it strikes me as a risky proposition if they elect to testify without preconditions or immunity. Those who testify fully risk saying something that will focus the inquiry on them, but refusing to testify or pleading the 5th will likely do the same.

    They shouldn’t be put in this position but it appears they will be as long as the Democrats control Congress.

    Comment by Anon — 4/21/2009 @ 6:10 pm

  6. Evidence? We don’t need no stinkin evidence.

    There are two sets of rules:

    If you have a “D” after your name, it’s all about the letter of the law, proof beyond any doubt, and your intentions.

    If you have an “R” after your name, it’s all about nuance, vague innuendos, and we just know your intentions are eeeevil.

    Comment by Dr. K — 4/22/2009 @ 1:40 am

  7. The lawyers probably should not be prosecuted, as explained above. But they should all be disbarred.

    Comment by B-Rob — 4/22/2009 @ 12:55 pm

  8. #7: Why?

    Do you also recommend similar punishment for anyone else not agreeing with your views. I see the lawyers as people offering a legal opinion, and whether or not you agree with it, it is just an opinion. It is for a court to decide whether or not the application of that opinion is valid.

    But on second thought, wouldn’t it be helpful that when a lawyer loses a case, he also loses the right to practice? After all, he just simply learned that his opinion was flawed, and therefore, he loses the right to practice.

    It would cut down on the number of students looking towards a career in the law.

    Comment by Dr. K — 4/22/2009 @ 1:32 pm

  9. […] points out that, despite all the calls for prosecuting “former Bush officials” over the torture […]

    Pingback by Torture Memos: Prosecute who? For what? | QandO — 4/24/2009 @ 9:22 am

  10. I think that anyone who uses the name “B-Rob” should spend five years in jail.

    Comment by red — 4/24/2009 @ 8:53 pm

  11. I found this link that discusses how won might prosecute the enablers of torture.

    Comment by Jim — 4/25/2009 @ 10:57 am

  12. Sorry meant to write one not won.

    Comment by Jim — 4/25/2009 @ 10:58 am

  13. Seriously, Jim, you’re going to compare the Bush administration to the Nazi’s campaign of terror, are you high. So what does that make AQ, the French Resistance. I know you didn’t come up with it, but you linked it, so you think it has value,

    Comment by narciso — 4/25/2009 @ 12:02 pm

  14. No, I forwarded an article comparing the legality of the actions of the lawyers, not the crimes of the regimes. I know, Bill Clinton did it too, won’t work in this argument. But I’m not comparing Nazi atrocities to Bush Administration torture, only the legal BS of their enablers.

    Comment by Jim — 4/25/2009 @ 3:35 pm

  15. Just for the record. I believe anyone, Democrat or Republican, involved in this violation of law should be prosecuted. I think that any person or persons who delay or prevent justice in this case should be impeached and removed from office. By the way I consider myself Libertarian though I am a registered republican due to the Md primary system.

    Comment by Jim — 4/25/2009 @ 3:45 pm

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