CAMBRIDGE, MASSACHUSETTS – Why won’t any U.S. politician, official or contractor ever be prosecuted for torturing people? That big question looms in the background of the just-released CIA report: Why won’t anybody be prosecuted for violating U.S. laws against torture?
The conventional wisdom had been that the Central Intelligence Agency’s actions were essentially immunized from prosecution because the agency relied on opinions from the Office of Legal Counsel at the Department of Justice — the so-called torture memos.
The report championed by Democratic Senator Dianne Feinstein of California says that CIA interrogations went well beyond the techniques described to the Office of Legal Counsel and authorized as legal in its memos.
If that’s true, then the interrogators essentially flouted even the counsel’s expansive and doubtful approval of enhanced interrogation techniques. So shouldn’t somebody be held criminally responsible? And if not, why not?
To understand what’s going on legally, you need to start with the fact that there were two different and equally important legal memos. The Feinstein report confirms that both were granted in response to CIA requests from the executive branch to get commitments in advance from the Justice Department that interrogators wouldn’t be criminally prosecuted for actions that appeared likely to violate existing laws.
One of those memos specifically considered 10 enhanced interrogation techniques — including waterboarding and stress positions — that were going to be used on Abu Zubaydah, one of the “high-value” detainees. It found those techniques to be lawful as described by the CIA. The Feinstein report says that the description of the techniques provided by the CIA was “inconsistent how they were later applied.”
In practice, the waterboarding of Zubaydah was far more extensive and repeated than anything described to the Justice Department. The report also says that the CIA misrepresented Zubaydah’s role in al-Qaida and the certainty that he was withholding crucial information.
Assuming the allegations are true — and we now know that Zubaydah and Khalid Sheikh Mohammed were waterboarded substantially in excess of what the memo authorized — this would provide grounds for a criminal prosecution.
It’s understandable that the Department of Justice wouldn’t prosecute in a case in which interrogators relied upon a legal opinion issued by the department itself. After all, it seems unfair to prosecute someone who checked in advance to make sure his conduct was lawful. But where interrogators went far beyond specific authorizations, that reasoning wouldn’t apply.
The catch is that there was a second, separate torture memo issued at the same time — and it didn’t focus on specific techniques. Instead, it provided two kinds of arguments about how interrogators might avoid prosecution, even if their actions violated the letter of the federal anti-torture law.
The first important argument aimed to allow lawbreaking was constitutional: The memo famously maintained that the president had the inherent authority as commander in chief to do what was necessary to protect the U.S., any laws passed by Congress to the contrary notwithstanding.
This extreme doctrine, which ran directly counter to the most relevant Supreme Court precedent interpreting executive power, was subsequently repudiated by the Office of Legal Counsel when Jack Goldsmith, who led the office later in the George W. Bush administration, withdrew the entire memo.
The memo’s extreme constitutional theory would have permitted more than the techniques described in the separate memo. It would have authorized essentially any lawbreaking that the president deemed necessary as a matter of national defense.
Now that this view has been repudiated, it wouldn’t provide technical legal justification for lawbreaking. That is, if offered as a defense at trial, it would almost certainly be rejected.
The problem is that interrogators can still claim that they relied in good faith on the legal counsel’s memorandum, which was operative when they were torturing. It would be extremely awkward for the Justice Department to prosecute, knowing full well that the defense would be a memorandum on Justice Department stationery that authorizes lawbreaking.
Prosecutors might also be morally swayed against prosecution by the fact that the legal justification was thought to be in force at the time; it could show that the CIA interrogators didn’t intend to break the law.
Then there was another form of argument in the withdrawn memo, one that according to the Feinstein report was also discussed by CIA lawyers. This was the claim that if interrogators broke the law, they could subsequently defend themselves at trial by arguing for a defense of necessity. Criminal law recognizes necessity as a justification or excuse against a criminal charge.
In essence, the defendant argues that his actions were necessary to avoid a greater harm. The classic example would be a person who destroyed a dam to prevent property from being flooded: The crime of destroyed property might be excused or justified in light of the necessity of avoiding greater harm.
This time the harm was torture. The Office of Legal Counsel’s memo expressed the view that interrogators might be able to raise a defense of necessity in the course of a criminal prosecution. Part of the memo’s strategy was to suggest that prosecutors would themselves consider the possibility of a necessity defense before bringing charges. It asserted that “the necessity defense may prove especially relevant in the current circumstances.”
And it noted that the defense could apply even in the case of intentional homicide, so long as the intention was to avoid more deaths. The punchline was specific: “Clearly any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing [a Sept. 11-style] attack, which could take hundreds or thousands of lives.”
This part of the memo provided even better cover for the interrogators. Of course, if they were prosecuted, a court might not accept the defense, considering factors such as the likelihood of subsequent harm or the certainty of particular knowledge.
But a prosecutor would have to know the defense would be raised — and if the issue reached a jury, it seems at least probable that it might decide in favor of the interrogators.
In short, then, the memos worked: The Department of Justice gave CIA free pass to torture without being punished. The legal analysis may have been wrong or morally monstrous, and the CIA appears to have lied to the Department of Justice. But even discounting the political factors that make it unlikely that a president would prosecute the CIA, the legal ground for proceeding would be very rocky.
Serious crimes were committed. They’re going to go unpunished.
Noah Feldman (firstname.lastname@example.org), a professor of constitutional and international law at Harvard University, is a Bloomberg View columnist.