Yesterday, while releasing new “torture memos,” President Obama made a statement that many interpret as categorically disclaiming any future prosecutions of CIA personnel for torture. I don’t know what Obama’s intentions are, but it is worth paying attention to what he actually said: “[I]t is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This statement is quite similar to one Eric Holder made in writing during his confirmation hearings in January (in response to a question from a Republican Senator): "It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself."
Some criticize Obama’s decision as being not merely unwise, but a failure of the rule of law. Yet the standard Obama and Holder articulate is well known to the criminal law. The American Law Institute’s Model Penal Code contains a provision (§ 2.04(3)) that expresses the same idea: “A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when . . . [an individual] acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous.” Plausibly, the Justice Department torture memos were at one time “an official statement of the law.” Subsequent legal decisions in (possibly) the Bush and (certainly) the Obama administration have “afterward determined” these statements of law to be “invalid or erroneous.” So under the principles of the MPC, it would be a defense for someone to have acted in the belief that their conduct was lawful if they relied “reasonably” on these memos.
Congress has not adopted this or any provision of the Model Penal Code. For that reason, it is quite possible that the CIA personnel who relied on them would have no statutory defense. But my point is merely that a policy of non-prosecution of those who relied on “official misstatements” of the law is not a new or lawless concept. The MPC is an influential legal source – many state legislatures borrowed its ideas in rewriting their criminal codes (including the defense of reliance on an official misstatement of law) and many federal courts cite the MPC as authority when deciding some proposition of criminal law consistent with its provisions. Moreover, the courts have on occasion interpreted the Due Process clause(s) of the constitution to foreclose prosecutions in cases like those covered by MPC § 2.04(3).
With this background, note that the words Obama and Holder used do not actually foreclose all prosecutions of CIA personnel (nor of other personnel). They foreclose prosecutions only if the individual believed his actions were lawful based on a “good faith” (and Holder says “reasonable”) reliance on Department of Justice statements of law. Perhaps that phrasing in fact covers all the relevant CIA conduct, though only an investigation could reveal whether this is in fact the case.
To be sure, there may be reasons not to apply the reliance-on-official-misstatement concept in this context. The ever-present danger of manufactured mistake of criminal law defenses is a special concern when a government agent relies on the advice of another government agent. But the debate should take place in that context, not ignoring the legal concept that would frequently grant a defense in circumstances of this sort. Those who think non-prosecution is not merely unwise but lawless, do not know enough law.