Torture and Reliance on Official Misstatements of Law

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.

Comments

[Christopher Roach]

Call me crazy, but isn't there usually (a) some kind of immunity for criminal acts (b) based on good faith reliance on beliefs about the law for governmental actors? This is not exactly news in the Section 1983 context. Harlow v. Fitzgerald anyone?

[Uzair Kayani]

Note that Harlow is not a subjective standard. What an official believed or what he relied on does not matter. Rather, Harlow sets an objective standard: an official loses qualified immunity if he violates a clearly established constitutional or statutory right that he should reasonably have known of.

Whether a right is clearly established and whether people should know of it are objective questions, that is, they are questions that a court ought to be able to answer without any knowledge of the parties or the facts of a case. For example, if a reasonable official would know that he was violating someone's right by kidnapping her, then that official would not be covered by the Harlow immunity.

The immunity is objective because it is an immunity from suit rather than liability. Courts need an objective test in order to dismiss frivolous cases quickly. A subjective standard would require the court to engage in costly fact-finding; this would defeat the purpose of the immunity.

[MKS]

“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.”

In this context this reliance defense is providd by statute. Section 1004(a) of the Detainee Treatment Act provides that in a “criminal prosecution” against a CIA officer who conducted interrogations, “it shall be a defense that such officer . . . did not know that the [interrogation] practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.”

In this respect, Obama’s announcement that he was not going to prosecute any of the CIA agents is really no revelation at all, it is just the proper use of prosecutorial discretion, recognizing that the CIA agents who acted in good-faith reliance on the DOJ legal opinions have a pretty clear statutory defense.

[Christopher Roach]

You are correct, but the clarity of prior law and existence of some reasonable confusion about its metes and bounds have always mattered under Section 1983. The test has always been objective but quite forgiving. For a non-lawyer, reliance on a government lawyer's interpretation of a statute should count for quite a bit. In other words, there might reasonably more immunity for lower level employees with less sophistication than there is for upper level employees who drafted the memos or ignored warnings or knew the law in greater detail, and there should be immunity for both when there is any significant gray area.

I also think the pardon power or prosecutorial discretion play an important role here. We don't want to end up like a banana republic where every election is a high stakes question of a great number of the losing party's officials go to jail on trumped up charges of one kind or another.

[Richard McAdams]

Qualified and absolute immunity are defenses against civil damages claims for governmental violation of constitutional rights, not criminal law defenses.

I appreciate MKS's quotation of the provision in the Detainee Treatment Act, but here Congress goes beyond the MPC approach in providing not just a defense for reliance on official misstatements of law, but a broad and general mistake of criminal law defense, which is a departure from the more ordinary principles of federal criminal law. Obama and Holder state the narrower and more established principle by exempting only those who relied on statements of law from the Department of Justice.