I read Eric Posner’s second response to my earlier two posts as a (confusing) concession. Whereas Posner in his co-authored article wanted to legalize torturous interrogation, Posner now seems only to oppose ex post political pardons. That is fine with me. I too think that political pardons are problematic in the context of torture.
This then takes us to the next question: whether there should be criminal prosecutions for the use of torturous interrogation techniques described in the “torture memos.” This issue is likely to heat up in the next few days with the forthcoming Office of Professional Responsibility report advising against prosecutions and the Obama administration’s decision to release 44 additional pictures of detainee abuse in prisons in Iraq and Afghanistan during the Bush era. My colleague Richard McAdams had begun a conversation about this question here.
Frankly, I was hoping to get beyond Posner and Vermeule, but in researching this next question I came across their 2004 Wall Street Journal op-ed defending the authors of the “torture memos.” In their op-ed, “A 'Torture' Memo And its Tortuous Critics,” Posner and Vermeule argue that “the memorandum's arguments are standard lawyerly fare, routine stuff.” On the question of torture, Posner and Vermeule contend that the authors of the memos “provided reasonable legal advice and no more, trusting that their political superiors would make the right call.”
I’m not entirely convinced by their argument.
The central question in this area, as I see it, is how come the United States government has prosecuted individuals for waterboarding in the recent past and whether that should affect our view of the propriety of immunizing everyone involved now.
The most interesting case is a 1983 Department of Justice prosecution of a Texas sheriff and his deputies for waterboarding inmates. This was a Reagan-DOJ prosecution and the case led to the conviction of Sheriff James Parker of San Jocinto County, Texas, and three of his deputies. The case is reported at U.S. v. Lee, 744 F.2d 1124 (5th Cir. 1984).
According to the opinion, Carl Lee “was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a ‘water torture’ in order to prompt confessions to various crimes.” Lee was jointly tried with his three fellow law enforcement officers on charges of violating and conspiring to violate the civil rights of prisoners in their custody. He was convicted and sentenced to four years in prison on that count. The case is nicely discussed in an excellent law review article written by Judge Evan Wallach of the United States Court of International Trade entitled Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Colum. J. Transnat'l L. 468 (2006-2007) (case discussion starts on page 502). Professor Wilson Huhn also discusses some of these issues well at the Washington University Law Review (2008) website here.
I have not been able to find the exact statute that they relied on there, though I surmise that the DOJ proceeded under the criminal provision of the civil rights statute. [Incidentally, the defendants presented a ‘Nuremberg defense” and that was opposed by the U.S. government and rejected on appeal].
As Evan Wallach documents in his article, Drop for Drop, the United States government has also prosecuted and court-martialed individuals for wartime use of waterboarding. Apparently, the international war crimes prosecutions occurred both in U.S. military commissions and at the International Military Tribunal for the Far East for acts of torture including waterboarding. Other governments as well, including Norway and the UK, prosecuted waterboarding in the wake of World War II.
In light of these prior prosecutions by the United States government, the remaining question seems to be whether the various defenses—merely following orders, merely giving legal advice, etc.—could possibly work in combination to shield everyone involved of criminal responsibility. The issue is not so much whether prosecutions are appropriate—our past practices seem to answer that—but how we should think about the different defenses in combination.