Robert Pallitto | Foreign Policy In Focus, March 2, 2009

In the months following September 11, 2001, lawyers in the White House and the Justice Department interpreted U.S. and international law to provide legal support for the administration in its “war on terror.” With regard to interrogation of terror suspects, John Yoo, David Addington, Jay Bybee, and others justified the use of such harsh and dangerous tactics as waterboarding and stress positions. In a 2002 memo, they advised that only actions causing severe pain equivalent to “organ failure” would violate the U.S. torture law. Moreover, the memo stated that only if they acted with the specific intention to cause such pain — rather than acting with the primary goal of obtaining information — would the interrogators violate the law. Finally, the memo argued that these interrogations were rooted in an inherent executive power to protect the nation. As such, other branches of government could not review or limit such policies.

The architects of the Bush administration’s torture policy clearly wanted to facilitate the use of torture tactics and to insulate themselves from future civil and criminal liability. In the words of legal scholar Jeremy Waldron, they were using the U.S. legal definition of torture as “something to game, a determinate envelope to push.”

A new administration is already taking steps to reverse Bush policies on torture and detention. Will it go the next step and pursue criminal prosecutions of Bush legal advisors?

The Nuremberg Precedent

Scott Horton has suggested that the Reich Justice Ministry cases, which were tried at Nuremberg after World War II, furnish precedent for trying Addington, Yoo, and others. The Reich Ministry cases involved prosecution of judicial officials who crafted policies and justifications for detention and killing of Jews, Roma, and other groups targeted by the Nazi regime. Also included in these prosecutions were judges who subverted the legal process by allowing high-ranking executive branch officials to direct the judges to reach certain results. Horton notes that the rulings in these cases established “a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.”

To be sure, Bush’s legal advisors were, to say the least, “dismissive” toward international humanitarian law. To take one example, White House Counsel Alberto Gonzales called the Geneva Conventions “quaint” and “obsolete.” This attitude wasn’t limited to international law. The Bybee memo cited a federal health care statute to define the term “severe pain” as that term is used in the torture law. Of course, it makes no sense to use a statute concerning payment for medical treatment to authorize inflicting pain on a person. This definitional stretch, which would be laughable in a less serious context, is an indication of the unrestrained determination to find and use anything, no matter how inapposite or farfetched, to take the administration where it wanted to go with its torture policies. Federal court rules allow judges to sanction attorneys for making frivolous arguments. Such a “severe pain” argument should be subject to similar sanction.

The Bush advisors were wrong on the law when they suggested that executive torture policies were unreviewable, and they were wrong in their interpretation of the U.S. criminal law prohibiting torture (they admitted as much when they repudiated the 2002 torture memo two years later). In Hamdan v. Rumsfeld (2006), the U.S. Supreme Court specifically rejected the claim that prisoner treatment need not comply with the Geneva Conventions. On this issue, the Bush team clearly misinterpreted the law and then broke it. But how do we address the damage done to our democratic and constitutional values, to our standing in the world? Should criminal prosecutions be part of that effort, brought either in U.S. federal court or in an international tribunal?

Criminal Prosecutions

U.S. law specifically prohibits torture. It’s a federal crime to commit torture, and the Bush advisors sought to interpret that law in a way that would permit such practices as waterboarding. The advisors’ actions could be considered a conspiracy to violate the torture law. They themselves didn’t engage in prohibited acts of torture, but they made it easier for others to do so.

The problem here is that the actions involved were themselves interpretations of law: State officials were making arguments about what the law meant and suggesting that it should be read narrowly. Horton suggests that lawyers aren’t permitted, in such a case, to “get it wrong” and then be excused for doing so. In the Reich Justice Ministry cases, the judicial officials made decisions and created policies that were later found to be illegal, and many of those officials were convicted of war crimes at Nuremburg. The important difference, however, is that the Reich Justice Ministry officials were complicit in a criminal regime. The structural rules of the government were illegitimate, created by a chief executive (Hitler) to preserve and increase his own power.

In the U.S. case, the structuring rules of government were not illegal. The legislature and the courts continued to function according to the constitution, even though the president tried to shield his actions and those of his administration from review. In several instances — authorizing military action against Iraq, detainee treatment, denial of court review to detainees, immunity for warrantless wiretapping — Congress approved presidential actions, thus making it harder to argue that the government wasn’t operating according to valid law. In fact, Congress even voted to confirm Jay Bybee to the U.S. Court of Appeals for the Ninth Circuit after he left the Bush administration. In short, the government’s actions were illegitimate but the government itself was, unlike that of Nazi Germany, legitimate.

The case for a violation of international law might seem clearer, in a sense. Instead of defining a particular law narrowly as they did with U.S. torture statute, the Bush advisors said that a particular body of international law (the Geneva Conventions) did not apply at all. In other words, with regard to international law, the advisors denied the applicability and constraining force of a law altogether. Moreover, the Supreme Court expressly denied this administration claim in Hamdan. Again, however, the problem here concerns the provision of legal duties or advice as a crime, and specifically with the “fit” of the Nuremburg precedent. The court there held state officials liable for formulating policies and rendering decisions that assisted in a genocidal project and gave obeisance to a plan of government under which, according to the court opinion in the Justice Ministry cases, “Hitler did, in fact, exercise the right assumed by him to act as Supreme Judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.” The court reasoned that this construction of German law left Nazi officials susceptible to prosecution under international law. In the U.S. case, however, the wrongdoing that occurred was done against the background of a political and legal order whose legitimacy wasn’t in doubt. The tripartite federal governmental system specified by the constitution operated throughout the period in question, and this fact distinguishes the two situations. This isn’t to excuse or to diminish what occurred between 2001 and 2008 in the United States. But the Nuremberg case doesn’t furnish an apt precedent for prosecution of the authors of the Bush torture policies.

Political Obstacles

In addition to the legal obstacles to prosecuting the architects of Bush’s torture policies, there are significant political obstacles as well. The United States refused to recognize the jurisdiction of the International Criminal Court during the Bush years; Bush revoked the signatory status. Obama has indicated an interest in resigning the ICC agreement, but would he then deliver members of the previous administration to that court for prosecution? The likely partisan political tension and fallout from any prosecution, domestic or international, would create a disincentive for prosecution, especially for a pragmatic, centrist president. To be sure, nothing in Obama’s executive orders thus far suggests that he intends to review past actions of the previous administration for possible criminal sanctions. The executive order relating to torture is written with a prospective focus, declaring that from Inauguration Day forward the torture policies of the Bush administration will no longer be followed, and that the standards the rest of the world adheres to, including the Geneva Conventions, will govern interrogation of terror suspects. While this statement is a welcome return to the rule of law, it leaves the past actions of Bush’s advisors unaddressed.

On February 10, the Obama administration surprised some observers by indicating in court that it would adopt the past administration’s posture in a torture-related case. Jeppesen Dataplan v. Mohamed is a suit against the flight planning company that allegedly facilitated the rendition of a terror suspect to a secret torture location. The Bush administration intervened and convinced the trial court to dismiss the suit, claiming that the case involved state secrets and would threaten national security if it were allowed to proceed. At oral argument in the Ninth Circuit, Attorney General Holder argued that the dismissal should be affirmed, rather than reversing the course set previously by the Bush Justice Department. The state secrets privilege is a court-created doctrine that allows the executive branch to terminate litigation simply by claiming that a particular dispute involves national security matters. Critics of excessive executive power hoped that the new administration would at least modify the scope of the privilege, but that hasn’t happened yet.

Future of Prosecution

Hannah Arendt explored the problem of state crimes in her famous report on the 1961 trial of Adolf Eichmann in Jerusalem. Acting according to German law, Eichmann oversaw the transport of Jews and others to concentration camps as part of his administrative position in the German government. Thus, his official responsibility in the time period of the “final solution” was to facilitate genocide. Arendt points out that Eichmann’s trial presented certain novel legal problems: He was a bureaucrat in a criminal regime, following orders to commit monstrous evil. In view of the Nazis’ genocidal project, Eichmann’s conviction and execution was a foregone conclusion, but the problem of prosecuting state-administered torture and killing remains half a century later. Today, with the issue of criminal conduct by members of the Bush administration, Arendt’s question presents itself somewhat differently. Yoo, Addington, Bybee, and others sought to maneuver around legal and political obstacles within a regime outwardly functioning under rule of law. It was they who provided the chief executive with advice and arguments for the policies he wished to implement.

In view of the problems indicated here, it is unlikely that a criminal prosecution of the Bush advisors for their role in propagating torture will occur. This isn’t to say, by any means, that their behavior was lawful. Rather, it’s a recognition of the realities of the situation, both political and legal. Also, the officials themselves worked to shield themselves from liability, helping to create some of the obstacles facing the nation now as we attempt to reckon with the lawlessness of the past administration.

Certainly, the lessons of the past eight years provide a good reason to resign the ICC agreement. Also, the ethics investigations currently pending against individual officials are important, appropriate, and laudable. While they will yield less in the way of punishment, they also face none of the roadblocks indicated above. These roadblocks only underscore the final, painful lesson: Failure to stand up to an overreaching executive branch compounds the damage that branch can inflict on our system of government by making it more difficult ultimately to hold executive officials accountable.

Robert Pallitto is an assistant professor of political science at Seton Hall University, a former trial attorney, and a contributor to Foreign Policy In Focus. He is co-author, with William Weaver, of Presidential Secrecy and the Law (Johns Hopkins University Press, 2007), and he is currently working on a book about torture in U.S. history.