Why Someone Has to Go to Prison for Waterboarding


Suppose that your boss has a lawyer, and you go to that lawyer for advice. You want to do something on behalf of your boss, and you want to make sure you’re not going to get in trouble with the law for it. The lawyer — either because he’s a lousy lawyer or because he has an agenda that leads him to want you to do that thing for the boss — gives you an incorrect written opinion that your conduct would not be illegal. Based on the lawyer’s erroneous advice, you do what you wanted to do all along, breaking the law 266 times. (Suppose also that the particular law you have violated does not require proof of willfulness.)

     A) Can you be prosecuted for your violations of the law?
     B) Can the lawyer be prosecuted for giving you bad advice?

The answer to (A) is an unqualified “yes.” Your criminal liability does not depend on whether you knew you were breaking the law. That you were acting in good-faith reliance on legal advice is not, in this situation, a legal defense.

The answer to (B) is a more lawyerly “yes, but whether such a prosecution would succeed might depend on whether the evidence showed that the lawyer knew that he was encouraging you to break the law — in which case he would be liable as a party — or was just a lousy lawyer.”

If Jay S. Bybee, Steven G. Bradbury, and John Yoo were prosecuted for torture under 18 USC §§ 2340A and 2, the evidence might support a finding that they were simply shitty lawyers. To pick only one example, Jay S. Bybee (now a judge on the Ninth Circuit) wrote of “stress positions” in his August 1, 2002 memo to CIA counsel John Rizzo:

Any pain associated with muscle fatigue is not of the intensity sufficient to amount to “severe physical pain or suffering” under the statute, nor, despite its discomfort, can it be said to be difficult to endure.

A competent lawyer would have asked his client a few more questions before leaping to this conclusion, and would have learned of the CIA’s own research in 1956 concluding that KGB stress positions (simply making victims stand for 18-24 hours) produced “‘excruciating pain’ as ankles double in size, skin becomes ‘tense and intensely painful,’ blisters erupt oozing ‘watery serum,’ heart rates soar, kidneys shut down, and delusions deepen.” (Slate.)

Bybee’s 2003 memo refers extensively to “our opinion on standards of conduct under Section 2340A.” I haven’t found a copy of this memorandum online; it was superseded on December 30, 2004 by this DOJ opinion by Daniel Levin, rejecting the definition of “severe” pain on which Bybee hung his tiny little hat:

This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”
. . . .
Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a “suffocatingly hot” and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1332-40, 1345-46 (N.D. Ga. 2002) (concluding that a course of conduct that included, among other things, severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of “Russian roulette,” constituted torture); Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23 (D.D.C. 2001) (entering default judgment against Iraq where plaintiffs alleged, among other things, threats of “physical torture, such as cutting off . . . fingers, pulling out . . . fingernails,” and electric shocks to the testicles); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 64-66 (D.D.C. 1998) (concluding that a course of conduct that included frequent beatings, pistol whipping, threats of imminent death, electric shocks, and attempts to force confessions by playing Russian roulette and pulling the trigger at each denial, constituted torture).

(My emphasis.) A competent lawyer in Bybee’s position would have found Hilao.

However much I would love to see a trial in which a U.S. Court of Appeals judge presented the “I’m a sucky lawyer” defense to a jury, all of that is merely an interesting aside. 18 U.S.C. § 2(a) probably supports criminal liability even for the lousy lawyers — ignorance of the law isn’t a defense, even for a lawyer.

So we should indict them all, up the line from the torturer who relied on Bybee’s memo, to his or her supervisor, to John Rizzo, to Jay S. Bybee, and beyond.

We should charge those who counseled waterboarding and stress positions and sleep deprivation with hundreds of counts of torture, each a felony with a 20-year maximum. (You think sleep deprivation, stress positions, waterboarding and the like aren’t “torture”? Fine, let’s let twelve jurors decide. You think there’s a valid justification defense? Okay, we’ll let twelve jurors decide.)

This will be a federal criminal case, and we should treat it as such, giving everyone the opportunity to roll on their fellows (like John Yoo) and their bosses (like Alberto Gonzales) for a deal.

We should prosecute them all, and we should put someone in prison.

Why so bloodthirsty?

Because by not prosecuting the torturers, we ensure that torture will recur.

I’m not advocating retribution. I can’t say who deserves what. I wouldn’t be shocked to learn that every person tortured by the CIA had done worse to other people. We’re never going to “get even.” I don’t think that we should subject Bybee to the torment that he poo-poos as “discomfort” (though he might be concerned that, in a just universe, that is how he will spend eternity).

But waterboarding is torture, Americans don’t torture, and this is a case — involving intelligent, educated people calmly and consciously deciding to do abhorrent things based on the advice of counsel — in which general deterrence will work. So to keep potential future torturers from turning to waterboarding when the next administration’s lawyers approve it, past torturers have to punished.

Even if you’re the president, just saying something is illegal does not make it illegal — at least not in any way that might affect people’s conduct. For something to be illegal, and for that illegality to deter future conduct, a sanction has to attach.

If we say, “waterboarding is torture, and torture is illegal, but we’re not going to punish those who have waterboarded” then the next time a DOJ bureaucrat declares that waterboarding is not torture the aspiring waterboarders, hiding in good faith behind that advice, will rationally conclude that they can waterboard with impunity.

Someone has to go to prison because, while President Obama says, “these methods of interrogation are already a thing of the past“, hoping doesn’t make it so.


0 responses to “Why Someone Has to Go to Prison for Waterboarding”

  1. If these guys planned the atrocities committed on 9/11, don’t put me on the jury. Many have decided to ignor the atmosphere and fear permeating the country even in 2003 when this torture occurred. Should it have happened? Hell No! Should My lai have happened? Hell No! Let’s get on with repairing this country, not a political side show that surely will get in the way.

    • Should daddy have raped sister? Hell No!, but let’s get on with repairing this family . . . .

      Just as saying that waterboarding is a thing of the past doesn’t make it so, neither does calling a criminal prosecution “political” make it so. We’re not talking about retribution, but about making sure — as sure as possible — that it doesn’t happen again.

      • I guess if we say that the Nazis did not do what they did its OK also,. They had to answerer for crimes why not these people? We have to do something and they do need to pay the price of their crimes like anyone else or is it a difference? It seams to be these days and this needs to stop. We as Americans need to set that example or are we just Hippocrates saying one thing and doing the opposite, this is one reasons other nations have lost respect for the U.S.

        You said it well and someone should go to prison people should ask what if it were me being tortured

    • Jigmeister – I would think that identifying what went wrong, finding those responsible and prosecutable, and holding them accountable would be one of the best first steps in “repairing the country”. As I see it, a major part of what is “broken” is that LAWS WERE NOT FOLLOWED by the executive branch of our government. Not only the torturing, but warrantless wiretaps, signing statements, etc. How can letting them get away with clearly illegal activities going to provide a deterrent for the future? What kind of example does it set when the elite can ignore the law, but the average Joe goes into the slammer for far less serious offenses?
      It would not be “a political side show”, but rather a demonstration that we are indeed a nation ruled by law, NOT politics, and all ARE created equal under the law. Allowing everyone to escape unscathed would only reinforce the growing separation of the elite class, who can do whatever they want, and the rest of the “sheep”, that have to do what they say. I personally don’t buy the notion that Big Brother is so much smarter, and knows so much that we don’t, and that we have to trust them in order to be “safe”. The system was set up with checks and balances with divided powers so at least watching the watchers was possible. But this only works is the laws are enforced equally.
      Sorry dude (or dudette), I just can’t see how repairing the country is accomplished by turning a blind eye to what is wrong with it.

  2. At least as far as the actual interrogators go how do you get around an estoppel argument?

    A CIA (or whoever) interrogator relying on advice from DOJ that a course of conduct is legal would seem to be major reliance. There have been several threads on this topic (torture/prosecution) at the Volohk Conspiracy and I have yet to see a convincing argument that gets around estoppel. “Severe physical or mental pain” is not a phrase I find self defining.

    This does not course protect the lawyers who actually provided that advice.

    • I haven’t followed the threads at Volokh. But let me take a shot at this:

      First, in order to rely on the defense of entrapment by estoppel, the accused must actually rely on a point of law misrepresented by an official of the state; and such reliance must be objectively reasonable—given the identity of the official, the point of law represented, and the substance of the misrepresentation.

      No interrogator who knew his job could reasonably rely on a memo about torture written by someone who described the pain of stress positions as “not difficult to endure.”

      Second, I don’t believe that one official of the state can claim entrapment by estoppel because of his reliance on another official of the same state. I don’t have any authority for this proposition, and would, I suspect, have to actually research the history of entrapment by estoppel to make a legal argument. But the common-sense argument is this: otherwise George could tell Dick that it’s okay and Dick could tell Beto and Beto could tell George and everyone would be covered. (Which may well be exactly how it happened.)

      • The problem you face with such an argument is that the OLC is exactly the source that government officials are supposed to look to when asking what is legal. So OLC is improperly influenced, that would implicate those higher in the chain who did the influencing but not those who then relied on the influenced advice.

        Again, I have a very hard time seeing DOJ prosecuting someone who relied on advice provided by DOJ.

        Now, there is also evidence that interrogators went beyond the methods OLC said were okay, and I could see that gap as providing the needed space.

  3. I have sure made that argument before: “make sure it doesn’t happen again”. Well where do we draw the line? Those that wrote the memos? Those that approved them? Those that encouraged them like Chaney. Those that should have known better like the AG or the president? Those that surpervised the interogators? Those army personnel that let them into the compound, knowing what they were going to do? Those that manufactured the equipment they used? Or finally those agents who would probably have lost their jobs had they disobeyed?

    Or do we pick out one or a few to make an example? Doesn’t Obama look like a fool or a political pawn changing in mid stream one day after he gave a speech at the CIA making promises that he would not encourage prosecution? Tell me again its not politics.

    • Obama promised the CIA that those who relied in good faith on DOJ legal opinions wouldn’t be prosecuted (an unreasonable promise, in my opinion). He reiterated that today. Even at the CIA, though, he clearly left open the possibility of prosecuting the lawyers who wrote the opinions.

    • Sorry, I didn’t answer your first questions. All of them. Anyone whom it might be proved beyond a reasonable doubt aided, abetted, counseled, commanded, induced or procured the commission of torture. All. Of. Them.

      I’ve thought about the justification defense and, since torture doesn’t work (by “work” I mean “get the subject to provide the interrogator with truthful information, rather than what the subject knows the interrogator wants to hear”), the accused might well not get to present evidence of justification. If the accused can’t present evidence of justification, the jury’s not going to hear about the bad things the complainants did.

  4. No doubt the people who were saved when waterboarding disclosed a plot to fly planes into Los Angeles buildings was discovered and the conspirators were arrested share your views. Did you know that US soldiers and airmen in survival schools are waterboarded as a matter of routine training? I wonder if they think they are being tortured or prepared for reality? Of course we can’t simulate cutting off their heads, which the enemy does, for real.

  5. The end do not justify the means, we supposed to be a nation of laws are reasonable unbiased. Who can you justify torture as “Reasonable” maybe the guy who wanted to fly the plane thought he was right too? I believe if airmen are trained that way, it is because we are sometimes in conflicts with other nations who do not practice the international rules of war, and torture prisoners like our country who also ignored the international rules of war and that makes us hypocrites when we speak about human rights does it not?

  6. Of course waterboarding is a form of torture. Just take in consideration the fact that no other civilized nation utilizes this as a tool of interrogation or intelligence gathering. Besides, such methods never generate good or reliable intelligence.

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