Mary H. Hansel*
In a matter of weeks, the International Criminal Court (ICC) is expected to open a full-fledged investigation into the “war crimes of torture and related ill-treatment, by United States military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency.”1 Pursuant to the principle of complementarity, the ICC cannot take the case if the United States has conducted its own investigation and decided against prosecution “unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”2 A recent report from the Court’s Office of the Prosecutor made clear that Prosecutor Fatou Bensouda is unimpressed with the genuineness and vigor of the U.S.’s investigatory and prosecutorial efforts to date.3
As Prosecutor Bensouda noted, there have been a few American investigations and even trials byU.S.’s military courts, but the proceedings have been limited in scope, lacked transparency and failed to result in any non-military prosecutions.4 The most comprehensive effort was a two-year review (August 2009 to June 2011) by the Department of Justice (DOJ) of alleged detainee abuses by the Central Intelligence Agency (CIA). In his official statement about those proceedings, then Attorney General Eric Holder stated outright that the DOJ “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”5 Prosecutor Bensouda made a point of quoting this statement in her recent report.
Prosecutor Bensouda likely seized upon this language because there has been no meaningful criminal investigation into the propriety or lawfulness of the Office of Legal Counsel’s legal guidance. The DOJ’s Office of Professional Responsibility did conduct a rather toothless review of the Office of Legal Counsel; however, the review was not a criminal investigation and resulted in the conclusion that—although the lawyers were found to have committed “intentional professional misconduct”—they should not be prosecuted.6 The lack of criminal scrutiny of the analysis and opinion provided by the Office of Legal Counsel is troubling, particularly given that the advice was the standard by which the Attorney General assessed the conduct of all other governmental actors.
Meanwhile, members of the Trump Administration, including newly-confirmed Attorney General Jeff Sessions, have indicated that they deem torture a viable option in the treatment of detained terrorist suspects.7 Indeed, the provision of legal cover for torture by government attorneys may be a recurrent problem in years to come.
This article examines the potential criminal liability under international law of the government attorneys (“OLC Lawyers”8) who authorized the use of “enhanced interrogation” techniques, presumably amounting to torture,9 in the “war on terror.”10 For, as one scholar has observed, “[n]ot since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war.”11 This analysis may be used to correct the widespread assumption that government attorneys are somehow immunized from criminal liability and refute opponents of prosecution who argue that holding lawyers criminally liable for giving opinions on violations of international law has no precedent.
II. The Torture Memos
In the wake of the events of September 11, 2001, and over the next several years, the OLC Lawyers authored or signed memoranda that purported to expand executive authority, and to redefine the concepts of torture, cruel, inhuman and degrading treatment, the scope of the Geneva Conventions and other long-standing doctrines of international human rights and humanitarian law (“Torture Memos”). For example, a memo written by John Yoo and signed by Jay Bybee analyzed the legality of particular interrogation techniques under the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment, as well as various other laws. Relying on inapposite legal authorities, the authors concluded that to constitute torture, a technique must cause physical pain of an “intensity akin to that which accompanies serious physical injury such as death or organ failure” or long lasting psychological harm “such as seen in mental disorders like post-traumatic stress disorder.”12
Many legal scholars have criticized the memos’ legal reasoning and conclusions as antithetical to well-established interpretations of domestic and international laws related to torture.13 They point out that the memos erred in inter alia ignoring on-point legal authority finding certain techniques (including waterboarding) to be torture, as well as other contrary authorities.14 Moreover, they argue that the circumstances surrounding the drafting of the memos indicate a predetermined policy that was essentially “reverse engineered” and given legal cover by the OLC lawyers.15 There is substantial evidence that U.S. officials and interrogators relied on the memos when designing interrogation schemes for certain alleged high-value suspects.16
The government lawyers involved in the drafting and approval of the Torture Memos include John Yoo, formerly of the Office of Legal Counsel; Alberto Gonzales, former White House Counsel and Attorney General; Douglas Feith, former Undersecretary of Defense for Policy; William Haynes II, former General Counsel for the Department of Defense; Judge Jay Bybee, formerly of the Office of Legal Counsel; Steven Bradbury, formerly of the Office of Legal Counsel; and David Addington, former Chief of Staff for Vice President Dick Cheney.17
The Torture Memos were not released to the public until 2009, after President Obama took office. Also in 2009, President Obama issued Executive Order 13491, which—along with banning torture and cruel, inhuman or degrading treatment—declared that U.S. personnel “may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation . . . issued by the Department of Justice between September 11, 2001, and January 20, 2009.”18 In late 2015, the National Defense Authorization Act for Fiscal Year 2016 became law, codifying several key provisions of Executive Order 13491.19 President Trump has vowed to revoke many of President Obama’s executive orders and his Administration could work to repeal this law.20
II. Applicable Theories of International Criminal Liability
Contrary to popular belief, there is nothing about functioning in a legal capacity that immunizes lawyers from prosecution for their participation in crimes.21 In fact, as many scholars have emphasized, “an OLC attorney giving advice has even greater responsibility than a private attorney to do justice to all sides of a question.”22 Accordingly, as the government’s chief legal advisors, the OLC Lawyers had a duty “to state the best view of the law – and not solely to state the best case for the client’s position.”23
Notwithstanding this heightened duty, very few international cases have held government lawyers criminally liable for their legal opinions. A panoply of legal sources, however, establish international criminal liability for both aiding and abetting and participating in a joint criminal enterprise.24 These theories of liability may provide bases of accountability for the drafting and authorization of the Torture Memos by the OLC Lawyers.
A. Aiding and Abetting Under International Law
International criminal tribunals have held that under customary international law aiding and abetting liability requires that the accused must (1) provide practical assistance (2) that has a substantial effect on the perpetration of a crime (3) with knowledge of the perpetration of the crime.25 An aider and abettor is criminally liable for all the harms that naturally result from his acts and omissions.26
The assistance given by the accused may occur through an omission or failure to act.27 Also, the assistance may be geographically remote from the commission of the crime and may occur before, during or after the commission of the crime.28
As the ad hoc tribunals have found, “[t]he position under customary international law seems therefore to be best reflected in the proposition that the assistance must have a substantial effect on the commission of the crime.”29 The tribunals have further noted that the assistance given need not have a causal effect on the commission of the crime.30
The accused only needs to have knowledge, not criminal intent, and need not know that the conduct of the principal is unlawful.31 However, “the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of [his/her] conduct.”32 The requisite knowledge “is examined on an objective level and factually can be implied from the circumstances.”33
There are very few international cases in which lawyers have been found guilty of aiding and abetting international crimes. Two prominent examples are found in the jurisprudence of the U.S. military trials at Nuremberg.
1. Applicable United States Military Tribunals at Nuremberg Case Law
Two cases from the United States military tribunals at Nuremberg, The Ministries Case and The Justice Case, inform the issue of aiding and abetting liability for the OLC Lawyers. Although the Nuremberg tribunals were staffed with American prosecutors and American judges, international criminal law was applied and these cases both reflect and form part of international criminal law. In fact, the ad hoc international tribunals and the Rome Statute have used this precedent as an important source of guidance, and Nuremberg case law is widely considered to be customary international law.
a. The Ministries Case
The case of U.S. v. von Weizsaecker, widely referred to as “The Ministries Case,” involved Nazi government officials who were found guilty of aiding and abetting international crimes by failing to object to unlawful conduct.34 The two critical defendants were von Weizsacker, State Secretary in the Foreign Office, and Woermann, Undersecretary of State and head of the Political Department in the Foreign Office. Von Weizsacker and Woermann were responsible for advising the Nazi government of the legal and political implications of foreign policy decisions. In this regard, they were called upon to consult on legal issues; however, neither defendant was technically a lawyer. When asked to approve the deportation of 6,000 Jews from France to Auschwitz in 1942, these defendants replied that they had “no objections” without providing explanation or qualification.35 They were both found to have known, at the time, the fate of the prisoners and that the deportations violated the Hague Convention and other international laws. As the tribunal observed, “[n]either claims that there was any legal justification for this deportation or suggests it was other than a flagrant violation of international law and of the provisions of the Hague Convention . . . . The defendant Woerman . . . knew that it was in violation of every principle of international law and in direct contradiction of the Hague Convention.”36
The tribunal decided that the defendants were liable for aiding and abetting crimes against humanity, making clear that it was holding the defendants to the standard of lawyers as they were responsible for providing international legal advice.37 The tribunal explained that because the defendants knew that the deportations violated international law, they had an absolute duty as the Nazi regime’s legal advisers to object to the deportations when asked to assess their legality.38 The tribunal further found that the fact that the Nazi officials would have proceeded with the deportation irrespective of their objections did not matter, stating:
We have no doubt that Hitler and the Nazi police organizations had planned and desired to do what was finally done, namely to deport these unfortunate Jews from France to their death in the East. This does not negative the importance of the fact that before the act was committed inquiry was made of the department of the Reich, whose duty it was to pass and advise upon questions of international law, as to whether or not it had any objection to the proposal.39
The Ministries Case stands for the proposition that aiding and abetting liability can arise from legal opinions (or perhaps even the lack thereof) for government actions that violate international law.40 The case therefore provides support for holding the OLC Lawyers liable for aiding and abetting the commission of torture by drafting and approving the Torture Memos. In fact, the case against the OLC Lawyers is even stronger as they provided legal cover for illegal actions, while the Ministries defendants merely failed to object to unlawful conduct.
b. The Justice Case
By contrast, the defendants in U.S. v. Altstoetter, monikered “The Justice Case,” participated more directly in unlawful conduct than the OLC Lawyers did. The Justice defendants were lawyers, judges and officials who proactively used the law and their positions of authority to facilitate crimes against humanity through the Nacht und Nebel (“Night and Fog”) program. In this program,
[o]pponents of the Nazi regime were rounded up by secret police and tried quickly before special courts, often receiving death sentences. . . The trials were secret, with no public announcements of executions; the bodies were given to the State police for burial. Judicial officials were also involved in providing legal cover for the transfer of inmates to concentration camps.41
The Justice defendants were more than legal advisors; they directed policy and managed the implementation and operation of Nacht und Nebel. For example, although he was an official in the Justice Ministry, Defendant Mettgenberg “exercised wide discretion and had extensive authority over the entire plan from the time the [Nacht und Nebel] prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or imprisonment.”42 And Defendant Joel acted as the public prosecutor for many of the of the Nacht und Nebel cases and was highly responsible for their predetermined outcomes.43
The tribunal held that the trials, inhumane treatment and executions of the Nacht und Nebel program constituted war crimes and crimes against humanity, and that the defendants were guilty of inter alia aiding and abetting these crimes.44 The tribunal found that the defendants “seized control of Germany’s judicial machinery and turned it into a fearsome weapon . . . .”45
Ultimately, The Justice Case provides some support for the general proposition that government lawyers can be guilty of aiding and abetting international crimes. However, this case has limited precedential value for prosecuting the OLC Lawyers, as the Justice defendants had a much higher level of participation than the drafting and approval of legal opinions. Nothing in this case, however, forecloses or undermines the concept that legal opinions can form the basis of aiding and abetting liability.
2. Aiding and Abetting Liability for the OLC Lawyers
With respect to the OLC Lawyers, a compelling case can be made that they aided and abetted the commission of torture. Torture, of course, is a well-established crime under international law.46
First, the act of authoring or approving the memos likely satisfies the element of practical assistance. Like the Ministries defendants who failed to object to the deportation request, the OLC Lawyers failed to raise legal issues with the use of torture. In addition, they actively provided legal cover for such acts both before and after their commission.
Second, the Torture Memos probably had a substantial effect on the perpetration of a crime (namely, torture). The memos permitted the torture of detainees with the pretense of legality and bureaucratic due diligence, similar to the perfunctory approval of the Foreign Office in Ministries. In their defense, the OLC Lawyers could argue that the memos did not actually cause the torture to occur, and that officials would have proceeded with their torture protocols and practices regardless of the content or existence of the memos. However, this argument is unlikely to be successful given that there need not be a causal connection between the act of assistance and the commission of the crime under international law. Indeed, the Ministries tribunal rejected the argument that Nazi officials would have deported the Jews to Auschwitz even if the defendants had raised legal objections.
Third, the OLC Lawyers seem to have possessed the requisite knowledge that their actions could at least facilitate (if not encourage) the commission of torture. The lawyers held positions of authority and influence, and were in or had access to the Bush Administration inner circle that allegedly devised the torture policies. It does not seem plausible that the lawyers did not surpass the standard of “accept[ing] that such assistance would be a possible and foreseeable consequence of [their] conduct.”47
The OLC Lawyers, however, could argue that their belief that administration officials would proceed with their torture policies irrespective of the memos shows that, notwithstanding their authority and influence, they did not know the memos would provide any assistance. This is a colorable argument, but likely insufficient given the low standard for knowledge.
The OLC Lawyers may also argue that they did not know that the “enhanced interrogation” techniques discussed in the memos were illegal, and try to distinguish The Ministries Case on the ground that the Foreign Office workers knew that the deportations violated international law. However, an aider and abettor need not know that the assisted conduct is unlawful, so any type of “good faith” defense is unlikely to succeed.48 Moreover, the legality of the assisted conduct was the subject of the Torture Memos and, purportedly, the lawyers’ area of expertise, so they were undoubtedly aware of all prominent legal authorities criminalizing the “enhanced interrogation” techniques.
The relevant international jurisprudence indicates that the OLC Lawyers likely aided and abetted the commission of torture.49 If they did, then their criminal liability extends to all harm stemming from their actions.
B. Joint Criminal Enterprise Under International Law
The OLC Lawyers may also be criminally liable under a theory of joint criminal enterprise (JCE). JCE requires: (1) the existence of a common plan, design or purpose that amounts to or involves the commission of a crime; (2) the involvement of more than one actor in the plan; and (3) the accused’s participation in the common plan.50 The common plan need not be an express one and may even materialize extemporaneously.51 The accused must intend to carry out the plan, but this intent may be inferred from knowing participation.52 The requisite level of participation in a JCE is significant, but may be met if the accused has considerable authority and knowingly fails to protest criminal activity.53 Furthermore, an accused can be charged with aiding and abetting a JCE by knowingly assisting a crime committed by a JCE.54
There do not seem to be international law cases involving JCEs directly analogous to the facts pertaining to the OLC Lawyers. However, in light of the established international law standards for JCEs, it does seem as though the OLC Lawyers might be liable. First, the Bush Administration’s torture policies (which involved the commission of torture) could be characterized as a common plan, especially because JCE plans need not be express or premeditated. Second, there was certainly more than one actor involved in the creation and approval of the torture policies. Third, the OLC Lawyers seemed to have participated in the plan by providing legal cover for implementation of the torture policies and not raising objections regarding their legality. However, the OLC Lawyers will likely argue that they did not intend to carry out the Bush Administration’s policies, but rather acted as objective advisors on the state of the law. This argument may not prevail, given the unorthodox legal reasoning used to conclude that certain “enhanced interrogation” techniques were lawful.
Although this analysis suggests that the OLC Lawyers could face JCE liability, additional facts are needed to make this determination with any degree of confidence. There may be a stronger case for holding the OLC Lawyers liable for aiding and abetting a JCE, in light of the lower level of intent required for aiding and abetting.
Despite the historical rarity of imposing international criminal liability on government lawyers, there do seem to be applicable legal theories and international precedents pursuant to which the OLC Lawyers may be held criminally liable. The OLC Lawyers could face criminal liability under a theory of aiding and abetting or joint criminal enterprise, although the former seems more likely. And The Ministries Case and The Justice Case, both deemed to constitute customary international law, provide compelling authority for liability. Importantly, in these cases, “never was the fact that the defendants acted in a legal and official capacity considered as an obstacle in holding them to account;” rather, their legal roles were “central to establishing their degree of responsibility.”55
Time should tell if the ICC pursues charges against the United States—and perhaps even the OLC Lawyers—for detainee abuses. However, the views on torture of President Trump’s cabinet appointees, including Attorney General Sessions, suggest that this issue will be revisited in the next four years.
* J.D., University of Southern California Gould School of Law; LL.M in Public International Law, London School of Economics and Political Science. Mary Hansel currently directs the International Human Rights Clinic at Loyola Law School, Los Angeles. She originally conducted much of the research presented herein as a legal fellow with the International Center for Transitional Justice (ICTJ). She would like to thank ICTJ (although the work is her own), as well as the editors and staff of the Wisconsin Law Review.
**Cite as: Mary H. Hansel, The International Criminal Liability of United States Government Lawyers Authorizing Torture, 2017 Wis. L. Rev. 1, http://wisconsinlawreview.org/the-international-criminal-liability-of-united-states-government-lawyers-authorizing-torture/.