Crimes and opinions of lawyers - I have a question about torture?

Question

Although I'm asking about a political issue, I'm not looking for the political replies, I'm looking for the legal aspects of the issue.

Torture.

John Yoo and David Addington have written some opinions concerning the use of torture. They appear to be the broadest, and controversial opinions ever. They appear to give the President open ended authority to torture anyone he wants. (Again, I'm not looking for a political discussion of whether the President has this right.)

First - Just because a lawyer writes an opinion doesn't necessarily make it legal. The matter has to be adjudicated.

If a lawyer writes an opinion on something such as torture and the ruling goes against the lawyer's opinion, can the lawyer be held accountable and sent to prison? References?

Take this a step further.

If the lawyer's opinion is found to be wrong. Could the person using this opinion for justification for their actions then be held responsible? References?

Thanks.

MLaw

Actually I only watched about 10 minutes of Frontline last night.

This is an issue that is a tremendous hot button with me.

I seriously consider John Yoo one of the MOST dangerous men in the US. I have heard him talk numerous times over the last few years.

He essentially feels that the President has unlimited powers which cannot be limited by anyone, including Congress. In addition, he appears to have NO compunction to use ANY means possible. ie. the ends justifies the means.

Answer 1

Hi Dogjudge:

First, a government employee can rely on the legal opinions of the Justice Department or the Office of Special Counsel to the President. This is because there has been no legal adjudication of the matter and until there is, these opinions act as a guide of what is or is not legal.

While these opinions are not binding on the court, a government employee would have qualified immunity from prosecution for any act he or she did relying on the opinion unless the opinion was clearly wrong. This provides protection to the employee so that he or she doesn't have to make an independent decision regarding the legality of what he or she is doing.

There is a specific procedure for authoring legal opinions. A governmental employee can't just walk into a lawyer's office and be able to rely on an oral statement. These opinions are suppose to give legal reasoning and be well vetted -- much like a court opinion.

[That said, the former head of the group at the Office of Special Counsel to the President in charge of writing these opinions was on NPR's Fresh Air recently and he spoke about why he withdrew several previously written opinions allowing torture on the grounds that they were an overreach. My recollection is that he did a pretty good job of explaining the purpose of legal opinions in general].

As for the lawyer who wrote the opinions, you are basically asking if he could be held responsible as an accomplice for the torture. The choir is right, no. You'd probably have more success going after those in the White House who actually authorized the conduct rather than the attorneys who enabled them by saying the conduct was legal.

Notwithstanding, it appears to me that the current administration has been playing fast and loose using signing statements and legal opinions to allow it to act in ways that are beyond its constitutional powers. The remedy, however, is at either the ballot box or through impeachment.

>>>>>>>>>>>>>>>>>>>>>>>>>>>

I watched Frontline last night. (Tivo is wonderful -- although I must admit I usually just let Frontline and a lot of other stuff just erase without bothering to even see what it is about). I found it unpleasant but fairly balanced without much bias -- it gave the various interviewees (who are almost on the conservative side of the spectrum) the chance to explain their point of view.

Jack Goldsmith was the attorney I referred to above who gave an interview on NPR's "Fresh Air." It is worth listening to regardless of your political persuasion. It is available as a podcast.

John Yoo takes a very expansive view of Presidential authority and a very utilitarian view of how the President and his administration can act. It is 'end justifies the means' thinking. Basically, it is OK to apply harsh interrogation tactics against both the innocent and the guilty as long as we get information helpful in saving American lives.

The counter view, which is highly egalitarian and natural law thinking, is that everyone is entitled to be treated as if innocent, that they have a right to due process for any crimes they may have committed, and that they have a right not to be treated cruelly -- even if this may costs the lives of the innocent.

Personally, I try to take a pragmatic approach that is infused by the values enunciated in the Declaration of Independence and the Bill of Rights.

I also don't see the Constitution as given the authority to the President claimed by Yoo and his cohorts. This is simply because we are a nation of laws -- both constitutional and legislative (including treaties) -- and simply because we are at 'war' does not give the President the power to ignore our laws. (I note that this is not a real 'war' like the World Wars, where our existence as a nation is at stake, nor is there any nation to fight. This is a police action against a group of terrorist who have declared war against us). And that certain rights should extend to those, such as foreign prisoners, who are within our dominion and control. We would not want our citizens thrown into jail to suffer the interrogation techniques Yoo authorized, and we should not allow such techniques on our foreign prisoners. (I might allow it in extraordinary situations where time is of the essence, but those are exceedingly rare and torture is rarely effective in those situations).

Yoo will not be thrown in jail for his legal opinions, nor, most likely, those who relied on his opinions. Nevertheless, when they have seen the light of day in court, these opinions have mostly either been restricted or overruled by the courts.

>>>>>>>>>>>>>>>>

Another thought.

If Congress passes a law specifically stating that we will not torture and Bush, by signing statement and by advisory legal opinions says it is unconstitutional because it interferes with his powers as commander-in-chief, I would not want to be the one relying on those legal opinions.

Simply relying on a legal opinion stating that, while it is against the law, you can ignore the law because it interferes with Presidential authoritiy does not work. You are on notice of what the law is, and until a court rules on whether or not the law is valid, you could be held criminally liable.

Answer 2

(1) Probably not, assuming of course that you mean whether a lawyer's advice to a government official as to the use of torture is rejected by the courts, and a tortured subject is freed, or wins a money judgment pursuant to a violation of civil rights. The lawyer's advising a government official, who operates under the shield of "qualified immunity." Unless the lawyer himself did the torturing, he would not be liable. And people only get "sent to prison" when a government agency decides to prosecute someone. If this is a government agent carrying out the actions of the president (or his superiors), no one's going to charge him (unless it's some sort of world court / war crimes tribunal, which the U.S. has refused to recognize when dealing with U.S. citizens).

(2) The person could try to rely on the opinion, but that may not keep him from being liable. "Ignorance of the law is no excuse," (stupid legal maxim, but used in this situation). And believe it or not, courts have often ruled that going to a lawyer, prosecutor, or police to ask if something is legal will not necessarily absolve you from liability if the advice they give is wrong (there's a great case where a farmer went to an extension officer to see if a particular subsidy would apply to him, they said yes, and then a regional manager discovered it, believed differently, and filed criminal charges against the guy. The charges were allowed to proceed, even though the guy thought he was doing the right thing).
To the extent that this "responsibility" requires a "criminal intent," a torturer could rely on advice of counsel to show that he did not have the necessary "guilty mind" to be convicted of a crime, or that his actions were "justifiable" or "reasonable" (if the defense is some sort of justification defense, such as when an officer gets sued for using excessive force).

Answer 3

Correct -- the opinion of one (or several) lawyers is not a legally binding determination -- only an appropriate court can determine that.

HOWEVER, there are issues of "bad faith" -- and specific statutes that make public officials immune from civil lawsuits if the officials thought that what they were doing was legal -- and those letters do provide legal cover under that doctrine.

While the general maxim is that incorrect legal advice is not a defense ("ignorance of the law is no excuse") -- there are exceptions, and one of those exceptions is where a specific statute grants immunity for someone acting within the scope of their duties based on legal advice that says what they are doing is legal. And there is a federal law to that effect.

I don't have the statutory cite handy -- but if you check writ.findlaw.com someone just wrote an article about this topic a week or so ago.

~~~~~~
MLaw (above) is correct about the scope of liability for the attorney issuing the opinion.

Answer 4

One aspect not considered so far is the crime of conspiracy.

If a lawyer is part of a common plan to commit a crime, such as torture, lesser crimes likely included within a scheme of torture (e.g. battery), lying to Congress (18 USC 1001 ), or obstructing justice (18 USC 1505 ) ... it is conceivable that the preparation of justifications to be used to shield other persons from liability would be sufficient participation in the scheme to constitute conspiracy (18 USC 371, 956, 1117 and more).

Consider the situation in which X desired to batter person Y (e.g. face-slap, waterboard), or to order or authorize an agent to do so. X tells Lawyer Z to issue a "legal opinion" that it was o.k. so that X could not later be prosecuted, then Z's actions would be in furtherance of a conspiracy to batter Y.

Lawyer Z's writings, including "legal opinions", could be produced as evidence of participating in such a common plan.

These are of course only hypothetical situations, but our American conspiracy statutes are broad.

Answer 5

Your first point is correct. Lawyers are not judges, and their opinions, officially filed on nice stationary and whatever are just that: opinions, and they are not binding nor law.

I can't imagine a lawyer's filed opinion would ever be usable against them, although you could use it to demonstrate a lack of character or conviction. I certainly wouldn't trust the legal opinion of a lawyer that was known to write legal opinions against their own moral judgment.

If the lawyer's opinion is found to be wrong, then anyone using it as a basis for their arguments would only be proving their own arguments wrong.

Answer 6

Well we know you watched Frontline last nite. Bear in mind the commentary on that program was loaded with judgmental language & its approach was partisan. For instance: there is no objective test as to what acts constitute "torture." While I have not researched it, my guess is that there are no legal rulings applicable to the US government holding the practice called "waterboarding," to be "torture."

The answer to your q is that government lawyer's opinions given within their scope of employ are qualifiedly privileged. The fact that they are wrong or later held wrong by a judge does not make the lawyer liable -- unless the lawyer has knowingly and intentionally misrepresented facts or the state of the law -- in which his liability would be limited to liability to his agency -- or unless he deliberately acted to deprive a specific individual or class of individuals of their civil rights.

None of the "opinions" referred to in last nite's Frontline appear to come close to creating any kind of civil liability in any of their authors.