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.
The Obama Justice Department has released four memos detailing the harsh techniques used on some detainees during the Bush administration. The memos – three written in 2005 and another in 2002 – give legal support for various coercive techniques and conclude that the CIA’s methods were not “cruel, inhuman or degrading” under international law.
However, the memos give specific authorization for such questionable tactics pushing detainees against a wall, facial slaps, cramped confinement, stress positions and sleep deprivation.
President Obama assured CIA agents that those who used harsh interrogation techniques on terrorism suspects “relying in good faith upon legal advice from the Department of Justice” during the Bush era will not be prosecuted.
Spanish Attorney General Candido Conde-Pumpido has declined to open an investigation in Spain’s National Court into whether six top Bush Administration officials sanctioned torture at Guantanamo Bay. While Spain’s courts do have jurisdiction in the case of war crimes and torture under the doctrine of “universal justice.” Conde-Pumpido declared that the most proper forum for such an investigation would be in United States’ court system, not Spain’s.
The “Bush Six”, as they have come to known, have been accused of using legal opinions to advise the Bush Administration that it would be acceptable to ignore the Geneva Conventions and narrowly defining which interrogation techniques constituted torture. They are named in a complaint filed by several human rights lawyers.
Spanish Judge Baltasar Garzon, who is presiding over the case, is most well-known for indicting Chilean ruler Augusto Pinochet over the objections of prosecutors. However, Conde-Pumpido is Spain’s top law-enforcement official and would have the final say. A formal announcement is expected April 17.
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