Abstract

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda regarding torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following Article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by a general confusion in U.S. law over the necessity defense. Second, this Article argues that necessity, when properly understood, constitutes two separate defenses, one a justification and the other an excuse, each with its own standard. The necessity justification does not apply to government agents who tortured detainees, though necessity as an excuse might apply under certain conditions. However, excused necessity—like all excuses—does not generate a corresponding exculpation for accomplices, like the torture lawyers, who might be said to have aided and abetted the principal perpetrators. Third, the Article questions the usual assumption of lawyers that they are liable as accomplices only if they supported their client’s criminality through frivolous legal arguments, though even under this standard the torture lawyers might face accomplice liability for some of their arguments. Finally, commentators are wrong that such prosecutions would be unprecedented. The United States itself prosecuted Nazi officials at Nuremberg for their failure to properly advise the Reich that their conduct violated international law.