The torture lawyers

Harvard International Law Journal

Volumn 51, Issue 1, 2010, Pages 193-256

  Ohlin, Jens David ^a  

^a Cornell Law School ^*  (United States)

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EID: 77949787794     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (559)

1. See Mark Mazzetti & Scott Shane, Interrogation Memos Detail Harsh Tactics by the C. I. A., N. Y. TIMES, Apr. 17, 2009, at A1 (quoting Obama as saying "nothing will be gained by spending our time and energy laying blame for the past").
2. See, e.g., Transcript of Cheney on 'Fox News Sunday', Fox NEWS, Aug. 30, 2009, http://www.foxnews.com/politics/2009/08/30/raw-data-transcript-cheney-fox- news-sunday/("[E]nhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States, and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. It was good policy. It was properly carried out. It worked very, very well.").
3. Compare JORDAN J. PAUST, BEYOND THE LAW: THE BUSH ADMINISTRATION'S UNLAWFUL RESPONSES IN THE 'WAR' ON TERROR (2007).
4. These include John Yoo, former Assistant Attorney General at the Office of Legal Counsel and now a professor of law at the University of California at Berkeley;
5. Jay Bybee, formerly at the Office of Legal Counsel and now a federal appellate judge on the Ninth Circuit;
6. and Alberto Gonzales, former White House Counsel and then Attorney General. David Addington, a former legal advisor to Vice President Dick Cheney, was also a key player in formulating aspects of the legal strategy of the War on Terror, though his role is largely unexamined here.
7. Steven G. Bradbury, the former head of the Office of Legal Counsel, wrote several memoranda concluding that the C. I. A.'s interrogation techniques were lawful under specific circumstances. This Article concentrates on the two most famous torture memos written by Yoo and Bybee.
8. See Mazzetti & Shane, supra note 1.
9. See Craig Whitlock, European Nations May Investigate Bush Officials Over Prisoner Treatment, WASH. POST, Apr. 22, 2009, at A4 (noting that Obama indicated that it would be up to Attorney General Eric Holder to decide whether to prosecute senior officials for their involvement in torture).
10. R. Jeffrey Smith, Michael D. Shear & Walter Pincus, In Obama's Inner Circle, Debate Over Memos' Release Was Intense: Some Feared That a Partisan Outcry Could Obstruct Larger Agenda, WASH. POST, Apr. 24, 2009, at A1.
11. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 4-8, Dec. 10, 1984, 108 Stat. 382, 1465 U. N. T. S. 85 [hereinafter Convention Against Torture].
12. Id. art. 7.
13. But see MANFRED NOWAK & ELIZABETH MCARTHUR, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY 366 (2008) (noting that "this simply means that the normal procedures relating to serious offenses, both in the extradition and criminal proceedings, and the normal standards of evidence shall apply").
14. See Carrie Johnson, eport on Bush Policy May Come In 'Weeks', WASH. POST, June 18, 2009, at A3.
15. Spain's lower house recently enacted legislation that curtails the universal jurisdiction statute which provides the jurisdictional basis for its investigation of Bush Administration officials. However, the version of the legislation originally introduced is not retroactive and would probably not prevent current cases from going forward. The bill must also be passed by the upper house before becoming law.
16. Robert Marquand, Global Reach of Spam's Courts Curtailed, CHRISTIAN SCI. MONITOR, June 25, 2009, available at http://www.csmonitor.com/2009/0626/p06s02- woeu.html.
17. Padilla v. Yoo, No. C 08-00035 JSW, 2009 U. S. Dist. LEXIS 50154 (N. D. Cal. June 12, 2009).
18. * 86 (dismissing Padilla's Fifth Amendment claim for violation of his right against selfincrimination but refusing to dismiss all other claims).
19. See, e.g. José E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175, 179 (2006) (detailing the manner in which the torture memos distorted U. S. treaty obligations) ;
20. Michael Hatfield, Professionalizing Moral Deference, 104 Nw. U. L. REV. COLLOQUY 1, 5 (2009) (arguing that "being professionalized as a lawyer begins with moral desensitization") ;
21. Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 CASE W. RES. J. INT'L L. 231, 231-32 (2006) (arguing that a "ticking bomb" hypothetical is not helpful in thinking about torture) ;
22. Richard H. Weisberg, Loose Professionalism, or Why Lawyers Take the Lead on Torture, in TORTURE: A COLLECTION 299, 300 (Sanford Levinson ed., 2004) (discussing "rush to rationalization" by lawyers).
23. A number of issues remain outside the scope of this Article, including whether the requirements for torture as an offense were met in this case, either under U. S. federal law or international criminal law.
24. See generally HAROLD H. BRUFF, BAD ADVICE: BUSH'S LAWYERS IN THE WAR ON TERROR (2009).
25. See, e.g.. MODEL PENAL CODE § 2. 06 (3) (1962) ("A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort to so do, or (b) his conduct is expressly declared by law to establish his complicity.").
26. See United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938).
27. The Learned Hand formulation was reiterated by the Supreme Court in Nye & Nissen v. United States, 336 U. S. 613, 618-19 (1949).
28. See, e.g.. United States v. Fountain, 768 F.2d 790, 797-98 (7th Cir. 1985) (lowering mens rea requirement for accomplice liability for major offenses to knowledge).
29. However, Fountain is an outlier and not representative of the Seventh Circuit jurisprudence on the question. Compart United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989). For a discussion
30. see G. Robert Blakey & Kevin P. Roddy, Reflections on Reves v. Ernst & Young; Its Meaning and Impact on Substantive, Accessory, Aiding Abetting and Conspiracy Liability under RICO, 33 AM. CRIM. L. REV. 1345, 1393-95 (1996).
31. Furthermore, one commentator has convincingly documented that although every circuit pays lip service to Learned Hand's formulation from Peoni, the actual substance of their standards lacks uniformity to the point of chaos, even on the purpose vs. knowledge issue.
32. See Baruch Weiss, What Were They Thinking?: The Mental States of the Aider and Abettor and Causer Under Federal Law, 70 FORDHAM L. REV. 1341, 1350-52 (2001-2002).
33. N. Y. Penal Law § 115 (McKinney 1967) (substantive offense of criminal facilitation when the actor believes that it is "probable" that his actions will aid the principal).
34. See, e.g., Trial of Bruno Tesch and Two Others, 1 WAR CRIMES COMM'N, U. N. LAW REPORTS OF TRIALS OF WAR CRIMINALS 93 (1947) (British Military Court Hamburg, Germany) (Zyklon B) (finding defendants guilty of knowingly providing chemicals used in Nazi gas chambers).
35. See, e.g., Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgment, ¶¶ 61, 79-80 (Mar. 24, 2000) ;
36. Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, ¶¶ 245-46 (Dec. 10, 1998).
37. Compare Rome Statute of International Criminal Court art. 25 (3) (c), July 17, 1998, 2187 U. N. T. S. 90 ("for the purpose of facilitating the commission")
38. with art. 25 (3) (d) (ii) (contributions made "in the knowledge of the intention of the group to commit the crime"). The second provision is arguably most applicable to the torture lawyers because they provided assistance not to a single individual but to multiple individuals acting with a "common purpose" to torture detainees. Recent Alien Tort Statute cases in the Second Circuit have overlooked Article 25 (3) (d) in their analysis of corporate aiding and abetting and have erroneously concluded that international criminal law follows the purpose standard.
39. * 39 (2d Cir. Oct. 2, 2009).
40. However, a finding of willful violation of the law might be necessary for prosecuting agents who actually committed the torture. Congress specifically included this requirement in the Detainee Treatment Act of 2005.
41. See infra notes 103-06 and accompanying text.
42. For criticisms of the causation requirement in the law of accomplice liability
43. see Christopher Kutz, Causeless Complicity, 1 CRIM. L. & PHIL. 289, 301 (2007).
44. Cf. Michael S. Moore, Causing, Aiding, and the Superfluity of Accomplice Liability, 156 U. Pa. L. REV. 395, 402 (2007).
45. Many jurisdictions have now relaxed the privity requirement.
46. See, e.g., Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir. 1987).
47. The case-and the controversy-is chronicled by Professor Simon.
48. See William H. Simon, The Kaye Scboler Affair. The Lawyer's Duty of Candor and the Bat's Temptations of Evasion and Apology, 23 LAW & SOC. INQUIRY 243 (1998). The question of lawyer complicity is most well developed in securities law.
49. See, e.g., SEC v. Nat'l Student Mktg. Corp., 457 F. Supp. 682 (D. D. C. 1978). Another area of the law where the topic has been broached is lawyer involvement in the tobacco industry's concealment of the risk of smoking.
50. See Roger C. Cramton, Lawyer Conduct in the "Tobacco Wars", 51 DEPAUL L. REV. 435 (2001) ;
51. Bruce A. Green, Thoughts About Corporate Lawyers After Reading The Cigarette Papers: Has the "Wise Counselor' Given Way to the "Hired Gun?", 51 DEPAUL L. REV. 407 (2001).
52. For examples of incredulity among the public about the possibility of prosecuting the torture lawyers
53. see Josh Weis, Editorial, Potential Prosecution for Torture Rife with Problems, ORLANDO SENTINEL, May 16, 2009, at A17.
54. Memorandum from John Yoo, Deputy Assistant Attorney Gen. & Robert J. Delahunty, Special Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Def. 1 (Jan. 9, 2002) [hereinafter Yoo Memorandum]. Alberto Gonzales subsequently authored another memo that reiterated and supported the conclusions reached in Yoo's memo. Memorandum from Alberto R. Gonzales, Attorney Gen., to George W. Bush, President of the United States (Jan. 25, 2002).
55. Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President & William J. Haynes II, Gen. Counsel, Dep't of Def. (Jan. 22, 2002).
56. Memorandum from Office of the Assistant Attorney Gen. to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002) [hereinafter Bybee Memorandum].
57. Yoo Memorandum, supra note 29, at 11-14.
58. See Yoo Memorandum, supra note 29, at 8 n. 11
59. (citing YVES SANDOZ ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 ¶ 4339 (1987)).
60. However, the International Committee of the Red Cross Commentary also states that "the scope of application of the Article must be as wide as possible." INT'L COMM. OF THE RED CROSS, GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 36 (Jean de Preux ed., 1960).
61. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U. S. T. 3114
62. U. N. T. S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U. S. T. 3217, 75 U. N. T. S. 85, [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U. S. T. 3316, 75 U. N. T. S. 135 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U. S. T. 3516, 75 U. N. T. S. 287 [hereinafter Geneva Convention IV].
63. See Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995) ;
64. INT'L COMM. OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, 1351 (1987).
65. See Military and Paramilitary Activities (Nicar. v. U. S.), 1986 I. C. J. 14, 114 (June 27) (finding that Common Article 3 applies in all conflicts).
66. This view was articulated by the court of appeals in Hamdan v. Rumsfeld, 415 F.3d 33, 41 (DC. Cir. 2005).
67. Id. at 42 ("To the extent there is ambiguity about the meaning of Common Article 3 as applied to al Qaeda and its members, the President's reasonable view of the provision must therefore prevail.").
68. Hamdan, 548 U. S. at 630-31 (applying Hamdan's Common Article 3 right to be tried by a regularly constituted tribunal).
69. Yoo Memorandum, supra note 29, at 2.
70. Id at 23.
71. Id. at 14 (stating that executive branch has plenary authority to declare Afghanistan a failed state and that Taliban members are therefore unprotected by the Geneva Conventions).
72. Id. at 15-16
73. (citing, inter alia, Clark v. Allen, 331 U. S. 503 (1947) ;
74. Terlinden v. Ames, 184 U. S. 270, 288 (1902)). The Clark case dealt with the question of whether a pre-World War II treaty signed by Germany survived the war. The Yoo Memorandum's argument can be boiled down to the view that the President's "foreign affairs power is independent of Congress."
75. Yoo Memorandum, supra note 29, at 15-16
76. (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936), a case that did not deal with executive abrogation of congressionally authorized treaties).
77. The Yoo Memorandum argument comes dangerously close to the outmoded argument of tuo quoque, or the idea that one party can retaliate with violations of international law in responses to an adversary's violations.
78. See Yoo Memorandum, supra note 29. Contemporary scholars and courts reject this view.
79. See, e.g., Prosecutor v. Kupreskić, Case No. IT-95-16-T, Judgment, ¶ 521 (Jan. 14, 2000) (noting certain international humanitarian law norms may never be violated) ;
80. cf. Geneva Convention IV, supra note 34, art. 2 ("Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.").
81. Yoo Memorandum, supra note 29, at 28-34.
82. The memo at least discusses the possibility of a nosuspension rule. However, some of Yoo's arguments for rejecting the no-suspension rule simply do not make sense. For example, Yoo claims that because the Geneva Conventions distinguish between grave and non-grave breaches of the Geneva Conventions, then suspensions of the treaty must be contemplated. Id. at 32-33. This does not follow. The fact that some breaches are more significant than others does not entail nor even imply that the Conventions (or some parts of it) may be suspended. As an analogy, consider that a government might tell its citizens that all aspects of criminal law must be followed and cannot be suspended, though some deviations are more serious (that is, grave) than others. The existence of grading among violations has nothing to do with suspension and confusion of the two represents a problematic form of legal reasoning.
83. In a bizarre citation, Yoo cites Article 60 (5) of the Vienna Convention as support for his view that the Geneva Convention can be suspended. Yoo Memorandum, supra note 29, at 33.
84. Article 60 deals with material breaches but specifically exempts humanitarian treaties protecting "the human person" (a category which clearly includes the Geneva Conventions) from the general rule stating that a material breach entitles a party to invoke the breach as grounds for terminating the treaty. Vienna Convention on the Law of Treaties art. 60 (5), May 23, 1969, 1155 U. N. T. S. 331. The citation supports the opposite of Yoo's position.
85. Indeed, it appears to do the exact opposite.
86. See Yoo Memorandum, supra note 29, at 11 ("It is clear from the foregoing that members of the al Qaeda terrorist organization do not receive the protections of the laws of war.") (emphasis added).
87. Id. at 34-39. For a discussion of the issue
88. see Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 IND. L. J. 1145, 1162 (2006).
89. See The Paquete Habana, 175 U. S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."
90. (citing Hilton v. Guyot, 159 U. S. 113, 163-64, 214-15)).
91. See Yoo Memorandum, supra note 29, at 34 n. 107
92. (citing Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional, 80 NW. U. L. REV. 321, 325 (1985) ;
93. Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555, 1567 (1984) ;
94. Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 70 VA. L. REV. 1071, 1179 (1985) ;
95. Jonathan I. Charney, Agora: May the President Violate Customary International Law?, 80 AM. J. INT'L L. 913 (1986)).
96. Yoo Memorandum, supra note 29, at 34.
97. Yoo did more than simply raise doubts about the traditional view; he flatly rejected it as "seriously mistaken. " Id. at 35.
98. Id. at 34 n. 104
99. (citing Authority of the Federal Bureau of Investigations to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. Office of Legal Counsel 163, (1989)).
100. Id. at 35 n. 108
101. (citing Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 817 (1997)).
102. Compare Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 371 (1997).
103. Garcia-Mir v. Meese, 788 F.2d 1446, 1453-55 (11th Cir. 1986) (holding that the Attorney General's termination of the parole determination procedure pending deportation was a controlling executive act).
104. Id. at 1454-55.
105. See Louis Henkin, The President and International Law, 80 AM. J. INT'L L. 930, 935 (1986) ("A case can be made also, that, in some cases, the President can supersede a principle of international law or a treaty by law made under his own authority, in those special circumstances when the President has constitutional authority to make law in the United States.").
106. See, t.g.. United States v. Buck, 690 F. Supp. 1291, 1301 (S. D. N. Y. 1988) (suggesting in dicta that judicial compliance in the face of executive branch violations of jus cogens would be comparable to the judicial compliance in Nazi Germany).
107. For a discussion, see José E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175, 186-89 (2006) ;
108. Emma V. Broomfield, Note, A Failed Attempt to Circumvent the International Law on Torture: The Insignificance of Presidential Signing Statements Under The Paquete Habana, 75 GEO. WASH. L. REV. 105, 120-22 (2006).
109. Yoo Memorandum, supra note 29, at 34 n. 105
110. (citing United States v. Alvarez-Machain, 504 U. S. 655 (1992)).
111. The issue in Alvarez-Machain was whether the extradition treaty with Mexico prohibited international abductions. The defendant argued that the treaty was silent on the issue because such abductions were already prohibited by customary international law, thus eviscerating the need to prohibit it under the treaty. The court rejected this argument, not because customary international law is not part of federal law, but because they did not agree that the treaty should be interpreted to prohibit such actions. Alvarez-Machain, 504 U. S. at 669.
112. Also, the Supreme Court held that even a violation of international law would not necessarily vindicate Alvarez-Machain's argument. Id. at 668 n. 15
113. (citing The Richmond, 13 U. S. 102 (1815)
114. and The Merino, 22 U. S. 391 (1824)). This is hardly shocking, for it simply represents the standard view that a violation of international law between two nation-states is a matter for resolution between the two states and does not necessarily entail a violation of an individual's rights that can be vindicated in a court of law, absent specific provisions.
115. See also CrimC (Jer) 40/61, Israel v. Eichmann, [1961] IsrDC 45, 3 (holding that abduction of Eichmann, a former Nazi, in Argentina did not deprive the Israeli court of jurisdiction to try him for Holocaust-era crimes).
116. Yoo Memorandum, supra note 29, at 36. ("It is well accepted that the political branches have ample authority to override customary international law within their respective spheres of authority.").
117. Yoo cites Brown v. United States, 12 U. S. 110, 128 (1814), which simply holds that the executive has discretion in applying "modern usage" with regard to the seizure of property during wartime when there is no applicable act of Congress.
118. Yoo Memorandum, supra note 29, at 36 (concluding on the basis of Brown that violating customary international law may be a "bad idea" but is allowed anyway).
119. But Yoo does not cite Chief Justice Marshall in The Nereide, 13 U. S. 388, 423 (1815) ("the Court is bound by the law of nations which is a part of the law of the land").
120. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006) ;
121. see also MITCHELL LASSER, JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS OF JUDICIAL TRANSPARENCY AND LEGITIMACY (2004).
122. In the background of this entire debate is a general debate over whether customary international law-and international law generally-is really binding law or just a convergence of state interests. If it is just the latter, then surely the President can simply ignore it when a state's interests change.
123. Yoo seems to be implying this worldview when he cites Justice Marshall in Brown v. United States. This view has been given extensive expression by Jack Goldsmith and others in a series of publications cited by Yoo, supra note 29, at 38 n. 122.
124. See also JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 42 (2005) (describing customary international law as mere coordination). However, Goldsmith and Posner mistakenly assume that their rational choice analysis of customary international law is inconsistent with the view that it is binding as law.
125. See id at 176-77 ("Talk clarifies which actions count as cooperative moves and which count as defections that will provoke retaliation").
126. They appear not to have read DAVID GAUTHIER, MORALS BY AGREEMENT (1986) (deducing the structure of morality from the problem of rational behavior as modeled by the Prisoner's Dilemma).
127. The fact that both law and morality can be expressed as a coordination problem does not rob either of their norm-giving force, and failure to recognize this point demonstrates a certain degree of philosophical naivety. For other responses along similar lines, see generally ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008) ;
128. Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1825 (2002) ;
129. Robert Hockett, The Limits of Their World, 90 MINN. L. REV. 1720 (2006) (reviewing Goldsmith and Posner's The Limits of International Law).
130. See Yoo Memorandum, supra note 29, at 39. The memo concludes that this view is most consistent with democratic theory because "conceiving [] international law as a restraint on war-making would allow norms of questionable democratic origin to constrain actions validly taken under the U. S. Constitution by popularly accountable national representatives." Id
131. See Alvarez, supra note 57, at 188-89 (detailing consequences of international violations, including suits before the ICJ, denials of reciprocal treatment in other areas of the law, and most disturbingly, countermeasures against other states).
132. See Erie R. R. Co. v. Tompkins, 304 U. S. 64, 78 (1938).
133. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law. A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).
134. Compare Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997).
135. See Yoo Memorandum, supra note 29, at 37 n. 122
136. (discussing Filartiga v. Peña-Irala, 630 F.2d 876
137. (2d Cir. 1980), and noting that the Second Circuit's view was supported by several circuits, but rejected by the D. C. Circuit in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D. C. Cir. 1984)).
138. Id. at 38 n. 132;
139. Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 1319, 330 (1997).
140. Set Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 425 (1964)
141. (citing Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 AM. J. INT'L L. 740 (1939) for the proposition that "rules of international law should not be left to divergent and perhaps parochial state interpretations") ;
142. see also Sosa v. Alvarez-Machain, 542 U. S. 692, 730 n. 18 (2004) (noting that although Sabbatino was not directly applying international law, "neither did it question the application of that law in appropriate cases, and it further endorsed the reasoning of a noted commentator who had argued that Erie should not preclude the continued application of international law in federal courts").
143. Although Sosa post-dates the Yoo Memorandum by several years, Sabbatino pre-dates it by several decades.
144. The Supreme Court has since firmly established that federal courts may enforce violations of customary international law.
145. See Sosa, 542 U. S. at 732 (holding that federal courts can enforce violations of the law of nations that are "definable, universal, and obligatory").
146. The court rejected the Yoo and Goldsmith view that federal courts in the post-Erie world cannot hear torts in violation of the law of nations. Id. at 729 ("Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way.").
147. For a discussion of the underlying theory behind Alien Tort Claims Act litigation
148. see GEORGE P. FLETCHER, TORT LIABILITY FOR HUMAN RIGHTS ABUSES (2008).
149. Indeed, even one of the law review articles relied upon describes itself as "revisionist."
150. Sec Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665 (1986).
151. See Alvarez, supra note 57, at 186-87 ("The memoranda elevate a one-sided, strongly contested revisionist conception of the status of international law in U. S. law, advocated by some U. S. scholars, into the status of hornbook law.").
152. See, e.g., W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67, 68 & n. 2 (2005) ;
153. Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT'L L. 811, 811 (2005).
154. See Convention Against Torture, supra note 7, art. 1; 18 U. S. C. § 2340 (1) (2000) ("'[ITorture' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.").
155. Bybee Memorandum, supra note 31, at 1.
156. Id. at 5-6
157. (citing 8 U. S. C. § 1369 (2000)
158. and 42 U. S. C. §§ 1395-96 (2000)). The memo conceded that these statutes "address a substantially different subject from Section 2340, but argued that they are nonetheless helpful for understanding what constitutes severe physical pain. " For further analysis of the seriousness of this legal argument
159. see infra Part II. D.
160. Id. at 15.
161. Convention Against Torture, supra note 7, aft. 16 (1) ("Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.").
162. Id. art. 11.
163. Id. art. 12.
164. Id art. 10.
165. See NOWAK & MCARTHUR, supra note 9, at 539 (discussing provisions which are neither criminal nor strictly preventive).
166. See Bybee Memorandum, supra note 31, at 3-5.
167. 18 U. S. C. § 2340 (1) (2000).
168. Bybee Memorandum, supra note 31, at 3-5.
169. Set, e.g., Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir. 2003) ;
170. C. F. R. § 208. 18 (a) (5) (2009) ;
171. see also M. Cherif Bassiouni, The Institutionalization of Torture Under the Busb Administration, 37 CASE W. RES. J. INT'L L. 389, 396-97 n. 33 (2006).
172. RESTATEMENT (THIRD) OP THE LAW OF LAWYERING § 94 (2) (b) (2000).
173. Cf. Christopher Kutz, The Lawyers Know Sin: Complicity in Torture, in THE TORTURE DEBATE IN AMERICA 241, 244, 245 n. 8, 246 & n. 9 (Karen J. Greenberg ed., 2006) (stating that lawyers can only be held accountable as accomplices if they knowingly offer legal advice based on a frivolous legal argument that facilitates a client's illegal enterprise).
174. See generally 1 GEOFFREY C. HAZARD ET AL., THE LAW OF LAWYERING (3d ed. 2000) ;
175. GEORGE M. COHEN ET AL., THE LAW AND ETHICS OF LAWYERING 26-27 (4th ed. 2005) (noting that lawyers confuse immunity for advocacy in court with immunity for client counseling) ;
176. Geoffrey C. Hazard Jr., How Far May A Lawyer Go in Assisting a Client in Legally Wrongful Conduct?, 35 U. MIAMI L. REV. 669 (1981) (noting the relative paucity of precedent on this point).
177. See, e.g., 18 U. S. C. § 2 (a) (2000) (providing that anyone who "commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal") ;
178. MODEL PENAL CODE § 2.06 (1980).
179. Set generally Kutz, supra note 25.
180. RESTATEMENT (THIRD) OF THE LAW OF LAWYERING §§ 8, 94 (2) (2000).
181. See MODEL PENAL CODE § 2.04 (1980).
182. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 167 (5th ed. 2009).
183. See Cheek v. United States, 498 U. S. 192 (1991) (holding that a tax evasion statute requires a willful attempt to avoid paying taxes).
184. It could in theory be relevant if the mistake steins from a mistake of fact about what the principal is doing, but that is a different category of mistakes.
185. Brad Wendel helped clarify this point in conversation with me.
186. See, e.g., United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir. 1989).
187. See, e.g., John Parry, Culpability, Mistake, and Official Interpretations of Law, 23 AM. J. CRIM. L. 1 (1997).
188. See United States v. Impastato, 543 F. Supp. 2d 569, 573 (E. D. La. 2008).
189. But see Bybee Memorandum, supra note 31, at 3
190. which appears to be confused about this point. Bybee cites Ratzlaf v. United States, 510 U. S. 135, 141 (1994)
191. though that case involved the crime of structuring transactions in violation of 31 U. S. C. S. §§ 5322 (a) and 5324 (3), a crime which, like tax evasion, requires that the defendant know that he is evading the regulations in order for the conduct to be criminal. This is completely inapplicable to the crime of torture.
192. Detainee Treatment Act of 2005 § 1004 (a), 42 U. S. C. § 2000dd-l.
193. Id.
194. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2636, § 8 (b) (2006).
195. See MICHAEL JOHN GARCIA, THE WAR CRIMES ACT: CURRENT ISSUES 6 (Cong. Research Serv., CRS Report for Congress Order Code RL 33662, Jan. 28, 2008), available at http://wikileaks.org/leak/crs/RL33662.pdf ("The statute also does not appear applicable to higher level U. S. officials who may have authorized, but did not directly engage in, specific operational practices involving detention or interrogation. ").
196. Usually there is no requirement of a willful violation of the law for mere civil liability and forfeiture.
197. See Ratzlaf, 510 U. S at 146 n. 16 (citing 18 U. S. C. § 981 (a)).
198. See Bruce A. Green, The Criminal Regulation of Lawyers, 67 FORDHAM L. REV. 327, 358 (1998) ("In this respect, the criminal law is in tension with professional norms that generally favor assisting individuals with their legal problems.").
199. See MODEL CODE OF PROF'L RESPONSIBILITY EC 1-1 (1986).
200. See 1 HAZARD, THE LAW OF LAWYERING, supra note 90, at § 9.3.
201. Id. at § 5.12 ("Lawyers sometimes act or talk as though they had a special immunity exempting them from observing 'other' law, which is to say ordinary legal obligations existing outside of whatever code of professional conduct is in force.").
202. See Hazard, How Par May a Lawyer Go, supra note 90, at 676 (arguing that lawyers falsely assume that the code of professional responsibility is an exclusive statement of their legal obligations).
203. Id. at 675 (noting that the rules of professional responsibility prohibit a lawyer from helping a client perform illegal acts, thereby incorporating other areas of the law which define the illegal acts).
204. Set 1 HAZARD, THE LAW OF LAWYERING, supra note 90, at § 5.12 (establishing that lawyers have no blanket immunity based on loyalty to client).
205. Cf. Reves v. Ernst & Young, 507 U. S. 170 (1993) (holding that accountants cannot be prosecuted under RICO for merely giving advice. The case, however, involved the question of whether such accountants could be considered to have "participated" in the illegal scheme as defined by the RICO statute, not whether they could be guilty of aiding and abetting under general principles of criminal law.).
206. See United States v. Locascio, 6 F.3d 924, 932-33 (2d Cir. 1993) (noting prosecutors' assertion that Gotti's lawyer was a party to the criminal enterprise, though he was not prosecuted separately) ;
207. United States v. Morris, 988 F.2d 1335 (4th Cir. 1993) (concerning appeal of lawyer charged with aiding and abetting drug violations) ;
208. United States v. Benjamin, 328 F.2d 854, 863-64 (2d Cir. 1964) (upholding conviction of attorney for conspiring to commit securities fraud) ;
209. SEC v. Nat'l Student Mktg. Corp., 457 F. Supp. 682, 712-17 (D. D. C 1978) (holding that although lawyers were involved in aiding and abetting securities fraud but SEC not entitled to injunctive relief because fraud was not deliberate and well-planned) ;
210. Johnson v. Youden, [1950] 1 K. B. 544 (holding solicitor not convicted for complicity due to insufficient evidence of his knowledge of the fraudulent price of the conveyance) ;
211. HAZARD, How Far May a Lawyer Go, supra note 90, at 681-82 (compiling cases) ;
212. set also United States v. Beckner, 134 F.3d 714 (5th Cir. 1998)
213. (concerning appeal by attorney convicted of aiding and abetting client's wire fraud) ; United States v. Dolan, 120 F.3d 856 (8th Cir. 1997) (affirming conviction of attorney for, inter alia, aiding and abetting the hiding of assets) ;
214. * 1 (6th Cir. Apr. 15, 1988) (upholding attorney conviction for mail fraud) ;
215. United States v. Arrington, 719 F.2d 701, 706 (2d Cir. 1983) (reinstating jury conviction of attorney accused of aiding and abetting a conspiracy to receive and sell stolen property) ;
216. United States v. Bodmer, 342 F. Supp. 2d 176 (S. D. N. Y. 2004) (finding Swiss lawyer complicit for violations of the Foreign Corrupt Practices Act though he could not be prosecuted due to his non-resident status). For a discussion of the Bodmer case
217. see William Alan Nelson II, Attorney Liability Under the Fortign Corrupt Practices Act: Legal and Ethical Challenges and Solutions, 39 U. MEM. L. REV. 255, 286-87 (2009) (noting that a similarly situated lawyer would not escape prosecution today because the non-resident loophole has been closed in subsequent amendments and that "attorneys must be aware that they can be held liable for conspiracy when counseling clients on the FCPA").
218. See, e.g., GEORGE M. COHEN ET AL., THE LAW AND ETHICS OF LAWYERING 144 (4th ed. 2005) ("Advising a client is legal; writing an opinion on the legality of a transaction is legal; helping a client to draft required disclosures to the SEC or another government agency is legal. But any of those acts of ordinary lawyering may become the actus reus of a crime or civil fraud, if done with culpable intent.") ;
219. Hazard, How Far May a Lawyer Go, supra note 90, at 682-83 (noting that a lawyer violates his duty under both civil and criminal law if he "facilitates the client's course of conduct either by giving advice that encourages the client to pursue the conduct or indicates how to reduce the risks of detection").
220. Set Hazard, How Far May a Lawyer Go, supra note 90, at 681 n. 39 (noting that there is "very little authority" on what degree of lawyer involvement constitutes aiding and abetting).
221. Set, e.g.. United States v. Locascio, 6 F.3d 924 (2d Cir. 1993). It is unclear why prosecutors declined to prosecute the attorney given their conclusion that he had joined the criminal enterprise.
222. The Office of Thrift Supervision settled the case against his lawyers.
223. See Simon, supra note 27, at 244.
224. Cf. HAZARD, THE LAW OF LAWYERING, supra note 90, at § 5.12 (noting that prosecutors are reluctant to prosecute attorneys unless conduct was flagrant).
225. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 94 (2) (2000) ("For purposes of professional discipline, a lawyer may not counsel or assist a client in conduct that the lawyer knows to be criminal or fraudulent or in violation of a court order with the intent of facilitating or encouraging the conduct, but the lawyer may counsel or assist a client in conduct when the lawyer reasonably believes: (a) that the client's conduct constitutes a good-faith effort to determine the validity, scope, meaning, or application of a law or court order; or (b) that the client can assert a nonfrivolous argument that the client's conduct will not constitute a crime or fraud or violate a court order.").
226. See OXFORD ENGUSH DICTIONARY 205 (2d ed. 1989) (defining frivolous as "[o}f little or no weight, value, or importance; paltry, trumpery; not worthy of serious attention; having no reasonable ground or purpose, " and especially in law, "[m]anifestly insufficient or futile").
227. This connects with a broader argument about objective or subjective standards in complicity and causation.
228. See generally Kutz, supra note 25.
229. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 94 cmt. c (2000) ("The requirement of a nonfrivolous argument is measured by an objective test.").
230. This standard would be like having a self-defense standard that only requires a subjective belief that one is being attacked (as opposed to an objectively reasonable belief).
231. Such a situation turns each individual into his or her own guardian of the standard.
232. See People v. Goetz, 497 N. E.2d 41, 5O (N. Y. 1986).
233. Set, e.g., DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 198 (2008).
234. See Bybee Memorandum, supra note 31, at 3-6.
235. Id.
236. Set 8 U. S. C. § 1369 (d) (2000)
237. and 42 U. S. C. §§ 1395w-96u (2000).
238. 42 U. S. C. § 1395 w-22 (d) (3) (B) (2006).
239. See Bybee Memorandum, supra note 31, at 6.
240. See United States v. Lee, 744 F.2d 1124 (5th Cir. 1984).
241. Scott Horton points out that the legal ptecedents would have been found with a simple database search.
242. See Jason Leopold, Reagan's DOJ Prosecuted Texas Sheriff For Waterboarding Prisoners, THE PUBLIC RECORD, Apr. 22, 2009 (quoting Horton).
243. See United States v. Hideji Nakamura, U. S. Military Commission, Yokohama, 1947, National Archives, NND 735027, Record Group 153: Office of the Judge Advocate General (Army), Entry 143: War Crimes Branch; Case Files, 1944-49, Box 1025, File No. 36-219-Vol. 1 (giving a 15 year sentence for Japanese officer, Yukio Asano, for waterboarding)
244. cited in Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U. S. Courts, 45 COLUM. J. TRANSNAT'L L. 468 (2007).
245. See Scott Horton, Kriegsraison or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards the Conduct of War, 30 FORDHAM INT'L L. J. 576, 594 (2007).
246. See, e.g., United States v. Benjamin, 328 F.2d 854 (2d Cir. 1964).
247. See Pinkerton v. United States, 328 U. S. 640, 648 (1946).
248. 18 U. S. C. § 371 note 35 (2000) (the federal conspiracy statute).
249. See id § 371 note 131.
250. See, e.g.. Direct Sales Co. v. United States, 319 U. S. 703, 714 (1943) ;
251. Interstate Circuit Inc. v. United States, 306 U. S. 208, 226 (1939).
252. See MODEL PENAL CODE § 2.06 (2) (a) (1962) (stipulating liability for individuals who cause an innocent person to engage in criminal conduct).
253. See, e.g.. Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, ¶ 439 (July 31, 2003). The prosecutor of the International Criminal Court has also favored indirect perpetration in both the Darfur and D. R. C. cases under Article 25 (3) (a) of the ICC Statute.
254. See, e.g., Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 9, 2009) ;
255. Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the Confirmation of Charges (Sept. 30, 2008).
256. See generally Florian Jessberger & Julia Geneuss, On the Application of a Theory of Indirect Perpetration in Al Bashir; German Doctrine at The Hague?, 6 J. INT'L CIUM. JUST. 853 (2008).
257. Set GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 639, 658-59 (Oxford Univ. Press 2000) (1978).
258. See id. at 657 (parsing the issue as between subjective and objective theories of perpetration).
259. This is consistent with the control theory of perpetration.
260. Set CLAUS ROXIN, TÄTERSCHAFT UND TATHERRSCHAFT 54 (3d ed. 1975).
261. See id.
262. See George Patrick Montgomery, Note, Law's Making a Comeback: A Chaytsian Analysis of the Bush Administration's Post-9111 Interrogation Policy, 6 GEO. J. L. & PUB. POL'y 333, 344-45 (2008) (detailing policymakers' use of legal opinions).
263. See, e.g.. People v. Luparello, 231 Cal. Rptr. 832 (Cal. Ct. App. 1987). The doctrine has been severely criticized and is rejected by some state jurisdictions.
264. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, HANDBOOK ON CRIMINAL LAW 516 (1972) (arguing that accomplice liability for crimes that exceed the criminal plan is inconsistent with fundamental principles of criminal law).
265. The same basic standard is used in Pinkerton conspiracy liability under the idea of reasonably foreseeable consequences.
266. See Pinkerton v. United States, 328 U. S. 640, 647-48 (1946). For a theory that provides a foundation for conspiracy liability but rejects its application for unintended consequences
267. see Jens David Ohlin, Group Think: The Law of Conspiracy and Collective Reason, 98 J. CRIM. L. & CRIMINOLOGY 147 (2007).
268. See, e.g., Strafgesetzbuch [StGB] [Penal Code] May 15, 1871, Reichsgesetzblatt [RGB1] 583, § 34-35 (F. R. G.) translated in 1 GEROLD HARFST & OTTO A. SCHMIDT, GERMAN CRIMINAL LAW (1989).
269. See, e.g., Strafgesetzbuch [StGB] [Criminal Code] Dec. 21, 1937, art. 17-18 (Switz.).
270. See MODEL PENAL CODE § 2.09 (1980) (duress) ;
271. MODEL PENAL CODE § 302 (1980) (choice of evils justification).
272. See, e.g., N. Y. PENAL LAW § 40.00 (McKinney 2009) ("[I]t is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.") ;
273. see also United States v. Mitchell, 725 F.2d 832, 837 (2d Cir. 1983).
274. See, e.g.. People v. Jenkins, 625 N. Y. S.2d 70 (N. Y. App. Div. 1995) (noting that a third party threatened to shoot defendant if he did not participate).
275. Drazen Erdemović was a Bosnian Serb who turned himself in to authorities after his involvement in the massacre of 1200 Muslim civilians in Srebrenica. Erdemović pled guilty and claimed that he acted under duress because his commander said that if he refused he should line up with the victims and await his execution with them. Erdemović complied and personally executed seventy men. The ICTY Appeals Chamber held, in a close 3-2 split decision, that duress was unavailable as a defense under international law for the murder of civilians, though it could be considered at sentencing as mitigation.
276. See Prosecutor v. Erdemović Case No. IT-96-22-A, Judgment on Appeal, ¶ 19 (Oct. 7, 1997). The decision, which included a strong dissent from Judge Cassese, has sparked a large debate in the scholarly literature over the availability of duress as a defense in international criminal law.
277. See, e.g., Luis E. Chiesa, Duress, Demanding Heroism, and Proportionality, 41 VAND. J. TRANSNAT'L L. 741 (2008).
278. See, e.g., United States v. Bakhtiari, 913 F.2d 1053, 1057 (2d Cir. 1990) ("claim that a defendant's family has been threatened might help establish the defense of duress or coercion").
279. See, e.g.. State v. Baker, 579 A.2d 479, 481 (Vt. 1990) (allowing defense of necessity for driver with suspended license who drives injured passenger to hospital).
280. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 289 (5th ed. 2009).
281. This follows the pattern of the Model Penal Code, which lumps "choice of evils" with justifications and places duress alongside other excuses such as intoxication, although without explicitly labeling it as such.
282. See MODEL PENAL CODE § 2.09 (1980) ;
283. see also GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW 83 (1998) (classifying duress as an excuse) ;
284. Kyron Huigens, Duress Is Not a Justification, 2 OHIO ST. J. CRIM. L. 303 (2004) (same). This categorization only applies in jurisdictions that are careful to distinguish between justifications and excuses.
285. But see United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000) (suggesting that "otherwise criminal conduct may be excused when the defendant commits the acts in order to avoid a greater evil") (emphasis added) ;
286. WAYNE R. LAFAVE, CRIMINAL LAW 467 (2000) (implying that duress is a justification) ;
287. Peter Westen & James Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse-and Why it Matters, 6 BUFF. CRIM. L. REV. 833 (2003).
288. The Duclos case highlights nicely the confusion: if the defendant successfully avoided a greater evil, that is the hallmark of a justification, not an excuse. In fact, in the same breath the court also implies that the defense is a justification defense. Duclos, 214 F.3d at 33 ("like other justification defenses").
289. Cf. FLETCHER, supra note 160, at 138-39 (arguing that necessity as a justification can be supported both by transcendental norms and utilitarian norms).
290. For theories of duress as autonomy-compromising
291. see GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 831 (1978) (describing duress as the will being overborne by threats) ;
292. Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 OHIO ST. J. CRIM. L. 289, 295 (2003) ("The defense is a concession to human weakness when people are grievously threatened with harm to themselves or their loved ones.").
293. See, e.g., People v. Pena, 197 Cal. Rptr. 264, 269 (Cal. App. Dep't Super. Ct. 1983) (using the concepts of necessity and duress seemingly without distinction as co-extensive).
294. For a discussion of the distinction
295. see also Claire Finkelstein, Duress: A Philosophical Account of the Defense in Law, 37 ARIZ. L. REV. 251, 273 (1995).
296. The U. S. code defines federal criminal offenses but not defenses. Furthermore, the Supreme Court has long recognized that duress and necessity are badly in need of judicial clarification.
297. See United States v. Bailey, 444 U. S. 394, 410 (1980).
298. Both categories-as defenses-are judicially defined and applied through the common law method of case law development. The leading federal case on necessity is United States v. Schoon, 971 F.2d 193 (9th Cir. 1991), which rejects application of the defense for indirect civil disobedience.
299. See Bailey, 444 U. S. at 394.
300. See, e.g., Strafgesenbuch [StGB] [Criminal Code] Dec. 21, 1937, arts. 17-18 (Switz.).
301. This is true regardless of whether the authors support or reject the justification.
302. Compare Mirko Bagaric & Julie Clarke, Not Enough Official Torture in the World? The Circumstances in Which Torture is Morally Justifiable, 39 U. S. F. L. Rev. 581 (2005)
303. Miriam Gur-Arye, Can the War Against Terror Justify the Use of Force in Interrogations?, in TORTURE: A COLLECTION 183 (Sanford Levinson ed., 2004)
304. and Michael S. Moore, Torture and the Balance of Evils, 23 ISR. L. REV. 280 (1989)
305. with George C. Christie, The Defense of Necessity Considered from the Legal and Moral Points of View, 48 DUKE L.. J. 975, 1031 (1999)
306. Paola Gaeta, May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, 2 J. INT'L CRUX. JUST. 785 (2004)
307. Adam Raviv, Torture and Justification: Defending the Indefensible, 13 GEO. MASON L. REV. 135, 151-53 (2004)
308. and Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681, 1686 (2005).
309. See, e.g., David Luban, Liberalism, Torture, and the Ticking Bomb, in THE TORTURE DEBATE IN AMERICA 35 (Karen J. Greenberg ed., 2006).
310. One notable exception is found in Kai Ambos, May a State Torture Suspects to Save the Life of Innocents?, J. INT'L CRIM. JUST. 261, 285-86 (2008)
311. (arguing that necessity as an excuse might apply in international criminal law, because "[t]he model case, similar to a situation of extreme duress, demonstrates impressively the advantage of this distinction in situations where the wrongfulness of the act, for raison d'êtat, must be upheld, but the individual wrongdoer, for reasons of personal blameworthiness, should be exempted from responsibility"). Ambos purports to be agnostic as to which excuse is applied to torture, as long as it is an excuse. Id at 286;
312. see also Sherry F. Colb, Why Is Torture "Different" and How "Different" Is It?, 30 CARDOZO L. REV. 1411, 1426 n. 54 (2009) (discussing variant of the position that torture could be just but still unlawful) ;
313. Mordechai Kremnitzer & Re'em Segev, The Legality of lnterrogational Torture: A Question of Proper Authorization or a Substantive Moral Issue?, 34 ISR. L. REV. 509, 535 (2000).
314. Self-defense is another avenue for justifying torture.
315. See Colb, supra note 171, at 1416. This defense would most likely remain unavailable for actual cases of post-9/11 torture. The torturer does not commit the act to save himself. There are two possible solutions to this problem. The first is to move from individual self-defense to national self-defense under public international law, where the argument might have more logical traction as an avenue for escaping state responsibility. However, the text of the Convention Against Torture might be construed to preclude the defense. The second option is to consider defense of others a legitimate defense, that is, the unified notion of defensive force to protect oneself, others, or property.
316. See generally GEORGE P. FLETCHER & JIENS DAVID OHLIN, DEFENDING HUMANITY (2008). Legitimate defense allows the use of force against an aggressor to stop or repel his attack. Thus, the detainee would have to be the aggressor, not merely someone with information. The argument also requires a broad understanding of "stopping" the attack so as to include actions committed in order to gain the information necessary to prevent the attack. The torture is aimed not at disabling the attacker but at spurring disclosure.
317. Cf. Colb, supra note 171, at 1448-49.
318. See, e.g.. United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989).
319. See MODEL PENAL CODE § 3. 02 (1) (c) (1980) ;
320. see also infra note 222 and accompanying text.
321. Set Ambos, supra note 171, at 287 (arguing for necessity as an excuse, not a justification).
322. See Youngjae Lee, The Defense of Necessity and Powers of the Government, 3 CRIM. L. & PHIL. 133 (2008). Lee suggests that even if necessity is considered an excuse, it might also provide minimal forward-looking guidance, though he concedes that it would not if excused necessity involves a temporary loss of the actor's capacity to reason. Id. This point is implicit in the individualized nature of excuses as personal to the actor.
323. See George P. Fletcher, The Individualization of Excusing Conditions, 47 S. CAL. L. REV. 1269 (1974) ;
324. see also United States v. Schoon, 971 F.2d 193, 196-97 (9th Cir. 1991) (describing necessity as one-time exception).
325. Cf. Kimberly Kessler Ferzan, Torture, Necessity, and the Union of Law and Philosophy, 36 RUTGERS L. J. 183 (2004).
326. In its famous torture decision, the Israeli Supreme Court did not entirely recognize this point.
327. See HCJ 5100/94 Public Committee Against Torture v. Israel [1999] IsrSC 53 (4) ¶¶ 35-38.
328. I take it that this is precisely the move that is opposed by Eric A. Posner and Adrian Vermeule in their book TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007). Posner and Vermeule appear to detect some have-your-cake-and-eat-it-too disingenuousness in the approach of outlawing torture in general but allowing forgiveness for individual defendants who commit it.
329. Another option is to deny both the justification and the excuse to the torturer, but to decline to punish him anyway. This option was taken in the famous German Daschner case.
330. See Landgericht Frankfurt a. M. [LG] [Regional Court] Dec. 20, 2004, Neue Juristische Wocbenscbrift 692 (692-96), 2005 (F. R. G.) [hereinafter Daschner].
331. Daschner involved a police official who ordered his detectives to threaten a suspect with torture to get him to reveal the location of a kidnapped boy. The Frankfurt Regional Court held that no justification or excuse applied to the case but still concluded that the defendant was not an appropriate subject for punishment. This curious result is explained in Florian Jessberger, Bad Torture-Good Torture? What International Criminal Lawyers May Learn from the Recent Trial of Police Officers in Germany, 3 J. INT'L CRIM. JUST. 1059 (2005). The court argued that mitigating circumstances justified the imposition of the lowest possible punishment-a monetary fine-and then suspended the sentence entirely in accordance with Article 59 of the German Criminal Code.
332. The Daschner alternative-rejecting all defenses but suspending the sentence-might arguably serve this goal even better, though perhaps at the risk of some internal incoherence. If no defenses apply and the defendant is culpable, why should the defendant escape punishment?
333. For a discussion of the Kantian basis of criminal law
334. see George P. Fletcher, Law and Morality: A Kantian Perspective, 87 COLUM. L. REV. 533 (1987).
335. For prominent examples
336. see Neal Kumar Katyal, Conspiracy Theory, 112 YALE L. J. 1307, 1315 (2003)
337. and Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193 (1985).
338. Cf. POSNER & VERMEULE, supra note 179, at 199.
339. Grundgesetz fur die Bundesrepublik Deutschiand [GGHBasic Law] May 23, 1949, Federal Law Gazette, as amended, § 1, art. 1 (1) (protection of human dignity is inviolable).
340. See, e.g., John T. Parry & Welsh S. White, Interrogating Suspected Terrorists: Should Torture be an Option?, 63 U. PITT. L. REV. 743, 757-65 (2002).
341. See Philip N. S. Rumney, Is Coercive Interrogation of Terrorist Suspects Effective? A Response to Bagaric and Clarke, 40 U. S. F. L. REV. 479 (2006).
342. But see Marcy Strauss, Torture, 48 N. Y. L. SCH. L. REV. 201, 263 (2004) (arguing that it is impossible to verify whether torture is effective or not due to lack of data).
343. See Ferzan, supra note 177, at 188-89;
344. Lee, supra note 176, at 140;
345. John Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 136 Hous. L. REV. 397, 416 (1999).
346. Under this view, the necessity defense is an exercise in crafting exceptions to general prohibitions.
347. See United States v. Schoon, 971 F.2d 193 (9th Cir. 1991).
348. See Regina v. Dudley & Stephens, (1884) 14 Q. B. D. 273. Dudley and Stephens, shipwrecked and hungry, killed a cabin boy and cannibalized him. Their conviction, though it sparked some degree of popular outrage, was upheld on the ground that necessity was not a defense for the killing of an innocent human being.
349. See, e.g.. People v. Pena, 197 Cal. Rptr. 264, 268-69 (Cal. App. Dep't Super. Ct. 1983). However, the Model Penal Code famously rejects the rule from Dudley & Stephens and therefore includes no categorical exceptions to the use of the necessity defense.
350. MODEL PENAL CODE § 3.01 (1980). For a discussion of limitations on the defense
351. see Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 AM. J. CRIM. L. 481 (2002).
352. See Prosecutor v. Erdemovif, Case No. IT-96-22-A, Judgment, 1 19 (Oct. 7, 1997).
353. Rape might be placed in this category as well, though it is unclear how a necessity defense could ever apply to this crime.
354. See, e.g., Moore, supra note 169, at 333;
355. cf. Colb, supra note 171, at 1421 & n. 37.
356. See SHELLEY KAGAN, NORMATIVE ETHICS 70, 80-81 (1998).
357. See Christopher Kutz, Torture, Necessity and Existential Politics, 95 CAL. L. REV. 235, 255-57 (2007).
358. Alon Harel & Assaf Sharon, What is Really Wrong with Torture?, 6 J. INT'L CRIM. JUST. 241 (2008).
359. Id. at 250.
360. Id. at 251.
361. Id. at 252.
362. Id. at 253.
363. Id. at 251.
364. Lee makes this point nicely when he implies that there might be a systematic undercounting of the evils on the other side of the scale.
365. See Lee, supra note 176, at 134 n. 9
366. (citing MODEL PENAL CODE § 3.02 cmt. 2, n. 5 (1985)).
367. See, e.g.. People v. Trippet, 66 Cal. Rptr. 2d 559, 563 (Cal. Ct. App. 1997) ("[T]he accused must entertain a good-faith belief that his act was necessary to prevent the greater harm.").
368. This argument is fully in accord with the general subjectivist move made by the Model Penal Code.
369. See Trippet, 66 Cal. Rptr. 2d at 563. The rationale for casting "reasonable" in an objectivist light is best expressed (in the context of self-defense) in
370. People v. Goetz. 68 N. E.2d 96, 111 (N. Y. 1986) (arguing that the subjective standard would permit defendants to set their own standards based on their "aberrational or bizarre" thought patterns). For a discussion of reasonableness
371. see GEORGE P. FLETCHER, A CRIME OF SELF-DEFENSE: BERNARD GOETZ AND THB LAW ON TRIAL (Macmillan, Inc. 1990) (1988).
372. But see Stephen Garvey, Self-Defense and the Mistaken Racist, 11 NEW CRIM. L. REV. 119 (2008).
373. See Dascbner, supra note 180, at 692-96.
374. See id;
375. see also Jens David Ohlin, The Bounds of Necessity, 6 J. INT'L CRIM. JUST. 289, 296 (2008).
376. See Jessberger, supra note 180, at 1061.
377. Id.
378. Id.
379. Id. at 1061-62.
380. Id. at 1062.
381. Id. at 1064.
382. Id. at 1065.
383. Id.
384. Article 34 states that "whoever commits an act in a present and otherwise unavertable danger to life, body, liberty, honor, property or another law good to avert the danger from himself or another, acts not unlawfully if in weighing the conflicting interests, particularly the affected law goods [sic] and the degree of the danger threatening them, the protected interest substantially outweighs the impaired one. However, this is applicable only insofar as the act is an appropriate means to avert the danger." Strafgesetzbuch [StGB] [Penal Code] May 15, 1871, Reichsgesetzblatt [RGBI] 583, § 34 (F. R. G.) translated in 1 GEROLD HARFST & OTTO A. SCHMIDT, GERMAN CRIMINAL LAW (1989).
385. For example, the German Constitutional Court ruled that executive branch officials could not order the military to shoot down a hijacked airliner in order to prevent terrorists from crashing the airplane into a building as they did on 9/11. The Court based this decision on the German Constitution's Article 1 protection of human dignity, which the court believed would be infringed if the passengers were sacrificed in order to save a larger number of individuals on the ground. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 2006, 115 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 118 (F. R. G.). For critical analysis of this Kantian result
386. see Tatjana Hornle, Hijacked Airplanes: May They be Shot Down?, 10 NEW CRIM. L. REV. 582, 605-07 (2007) ;
387. Oliver Lepsius, Human Dignity and the Downing of an Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-Terrorism Provision in the New Air-Transport Security Act, 7 GERMAN L. J. 761 (2006).
388. Of course, the Fifth Amendment prohibits deprivations of life without due process of law. U. S. CONST, amend. V.
389. The "appropriateness" criterion might also be implied by the requirement in many U. S. jurisdictions that the defendant's belief that the act was necessary "must be objectively reasonable under all the circumstances."
390. State v. Riedl, 807 P.2d 697, 701 (Kan. Ct. App. 1991). The question would be whether this implies that the means must also be reasonable.
391. See Lee, supra note 176, at 143 (describing the necessity defense as "creat[ing] a space in which citizens are empowered to act as if the state has disappeared from the scene").
392. See, e.g., MODEL PENAL CODE § 3.02 (1) (c) (1962) (requiring that "a legislative purpose to exclude the justification claimed does not otherwise plainly appear"). The requirement makes clear that although justified necessity is meant to be an exception to the general rule, it must remain exceptionalthat is, it cannot be so broadly construed that it operates to vitiate the criminal law rule crafted by the legislature in defining the offenses.
393. Compare Strafegesetzbuch [ScGB] [Penal Code] May 15, 1871, Reichsgesetzblatt [RGBI] $83, § 34 (F. R. G.) available at http://wings.buffalo.edu/law/bclc/StGBframe.htm ("commits an act in a present and otherwise unavertable danger to life, body, liberty, honor, property...")
394. with People v. Pena, 197 Cal. Rptr. 264, 271 (Cal. App. Dep't Super. Ct. 1983) ("no adequate alternative to the commission of the act").
395. See, e.g.. People v. Galambos, 128 Cal. Rptr. 2d 844 (Cal. Ct. App. 2002).
396. Because the defense is one of "confession and avoidance, " as opposed to a mere negation of an element of the offense, the burden falls to the defendant.
397. See People v. Neidinger, 26 Cal. Rptr. 3d 221, 232 n. 14 (Cal. Ct. App. 2005) (describing an affirmative public policy defense).
398. See Sarah E. Stoller & Paul Root Wolpe, Emerging Neurotechnologies for Lie Detection and the fifth Amendment, 33 AM. J. L. & MED. 359, 366 (2007) (noting unreliability of torture as far back as Star Chamber).
399. A segment of the case law deals with the constitutional acceptability of such interrogational methods.
400. See, e.g., Brandon v. LaVallee, 391 F. Supp. 1150, 1131-52 (S. D. N. Y. 1974) ;
401. see also Mitchell P. Schwartz, Comment, Compensating Victims of Police-Fabricated Confessions, 70 U. CHI. L. REV. 1119, 1138 n. 119 (2003).
402. See, e.g., Memorandum from the Joint Personnel Recovery Agency to the Department of Defense Office of the General Counsel, Operational Issues
403. see Peter Finn and Joby Warwick, In 2002, Military Agency Warned Against Torture', WASH. POST, Apr. 25, 2009, at A5.
404. Also, one might argue that what matters is not whether torture is reliable, but whether the agent believed that the torture, in this particular instance, would produce accurate information. If this is the claim, then the subjectivity of the analysis indicates yet again that the necessity defense being claimed here is an excuse, not a justification.
405. Cf. Jeremy Horder, Self-Defence, Necessity and Duress: Understanding the Relationship, 11 CAN. J. L. & JURIS. 143, 160 (1998) (discussing a relevant hypothetical).
406. See Convention Against Torture, supra note 7, art. 2 (2) (emphasis added). The Convention also says that a superior order shall not constitute a justification. Id. art. 2 (3). As to (he significance of the choice of words, the travaux preparatoires are admittedly unilluminating.
407. See NOWAK & MCCARTHUR, supra note 9, at 93-94 (noting that previous drafts stated that such evidence could be considered as mitigation in punishment, but that these proposals were dropped). Perhaps these proposals were deleted because they were thought to be superfluous, or perhaps the deletion was meant to confer more room for excuses, as opposed to justifications, to operate. It must be conceded that there is no evidence that the distinction between justifications and excuses was specifically discussed by the drafters; it must also be conceded that a liberal acceptance of excuses could conflict with the object and purpose of the Convention to end torture. However, one might also interpret the Convention as simply insisting that a state of emergency does not make torture acceptable and that states still have a duty to prevent it. This is still consistent with the notion that a torturer might be subject to a partial or complete excuse.
408. See Wendel, supra note 74, at 82-83.
409. For a recent example, consider the child of the Iraqi police officer who was reportedly kidnapped by Al Qaeda terrorists in an attempt to get the police officer to release Al Qaeda confederates in police custody.
410. See Arwa Damon, Terrorists Kidnap, Torture Boy to Bully Iraqi Policeman, CNN. COM Aug. 7, 2009, http://www.cnn.com/2009/WORLD/meast/08/07/iraq.kidnapped. boy/index.html.
411. Cf. Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L. J. 1, 72-73 (2003).
412. Cf. United States v. Holmes, 26 F. Cas. 360, 366-67 (C. C. E. D. Pa. 1842) (No. 15, 383) (holding necessity defense not available to crew that threw passengers overboard to lighten load of sinking vessel)
413. cited in Shaun P. Martin, The Radical Necessity Defense, 73 U. CIN. L. REV. 1527, 1533 n. 21 (2005).
414. Strafgesetzbuch [StGB] [Penal Code] May 15, 1871, Reichsgesetzblatt [RGB1] 583, § 35 (F. R. G.) translated in 1 GEROLD HARFST & OTTO A. SCHMIDT, GERMAN CRIMINAL LAW (1989). The same requirement is not prevalent in the U. S. case law.
415. See, e.g., Ark. Code Ann. § 5-2-208 (1993) ;
416. Marx v. State, 724 S. W.2d 456 (Ark. 1987). However, the threat to the family member remains the unofficial paradigm for the defense.
417. See Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 336 (1996).
418. One sees the corollary of this relationship in the discussion over the (partial or complete) defense of provocation.
419. See, e.g., Joshua Dressier, Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject, 86 MINN. L. REV. 959 (2002).
420. See Ohlin, supra note 208, at 296-98.
421. Domestic violence is the most obvious example here.
422. The most prominent example is Paul Robinson.
423. See 2 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 122 (1984).
424. See DONALD DAVIDSON, Radical Interpretation, in INQUIRIES INTO TRUTH AND INTERPRETATION 125, 134-35 (2001).
425. One assumes, charitably, that people are more-rather than less-rational, though this does not require that one assume any particular level of rationality.
426. See State v. Brodie, 529 N. W.2d 395 (Minn. Ct. App. 1995) (holding that once defense is properly raised, burden of persuasion remains with prosecution)
427. rev'd 532 N. W.2d 557 (Minn. 1995) (finding that defendant failed to meet initial burden of production).
428. This way of expressing the point was suggested to me by Sherry Colb.
429. This conclusion is not meant to be a metaphysical statement about causation but rather a legal conclusion about reasonableness.
430. Cf. Michael Corrado, Criminal Law: Notes on the Structure of a Theory of Excuses, 82 J. CRIM. L. & CRIMINOLOGY 465, 469 (1991) (discussing an "inability to do otherwise" theory as a motivation for punishment).
431. See, e.g., Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, 106 YALE L. J. 1331, 1392-93 (1997). There is some confusion in the U. S. law over whether provocation is a justification or an excuse, in part because it mixes the element of loss of control with the requirement that the defendant must not have acted unreasonably.
432. See David A. Wallace, Torture v. the Basic Principles of the US Military, 6 J. Int'l Crim. Just. 309 (2008) ; cf. Karima Bennoune, Terror/Torture, 26 Berkeley J. Int'l L. 1, 38 (2008) ("Whatever the values they seek to defend, the intellectual proponents of weakening the absolute ban on torture in order to confront terror fail to grasp that, as explained above, diluting the prohibition of torture inherently destabilizes the notion of terror and why it is wrong.") ; Waldron, supra note 169, at 1686 (arguing that post-September 11 prohibitions on torture should remain in effect).
433. The torture lawyers might be able to assert their own independent defense.
434. See supra Part I. C.
435. Cf. George P. Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 ISR. L. REV. 367 (1973) (discussing the rule of proportionality in cases of self-defense). For an updated discussion
436. see George P. Fletcher & Luis Chiesa, Self-Defense and the Psychotic Aggressor, in CRIMINAL LAW CONVERSATIONS (Paul H. Robinson et al. eds., 2009) (discussing disagreement over "whether defensives response should be considered justified or merely excused, " and "whether the specific ground of acquittal should be self-defense or necessity.").
437. George Fletcher played a leading role in this effort with the publication of RETHINKING CRIMINAL LAW (1978).
438. See generally Kent Greenawalt, The Perplexing Borden of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984).
439. People v. Young, 183 N. E.2d 319 (N. Y. 1962)
440. cited in Greenawalt, supra note 250, at 1919-20.
441. People v. Young, 210 N. Y. S.2d 358 (N. Y. App. Div. 1961).
442. N. Y. PENAL LAW § 35. 15 (McKinney 2009).
443. See, e.g., People v. Unger, 362 N. E.2d 319, 323 (Ill. 1977).
444. See, e.g., United States v. Bailey, 444 U. S. 394, 415 (1980) ;
445. United States v. Williams, 791 F.2d 1383, 1388 (9th Cir. 1986).
446. See Greenawalt, supra note 250, at 1920. Incidentally, this is the basis for the former Nazi guard's liability in Bernhard Schlink's novel The Reader.
447. Id. at 1920.
448. But see Kent Greenawalt, Justifications, Excuses and a Model Penal Code for Democratic Societies, 17 CRIM. JUST. ETHICS 14, 23 (1998) (rejecting excuses as the solution to the problem of mistaken police action).
449. Greenawalt, supra note 250, at 1923.
450. Id. at 1924.
451. See Malcolm Thorborn, Justifications, Powers, and Authority, 117 YALE L. J. 1070, 1108 (2008) ("Indeed, it is a generally accepted matter of criminal law doctrine that private citizens are not entitled to use force in self-defense, to effect a citizen's arrest, or to avoid the greater evil if someone closer to the center of state decision-making authority was available to make that determination. This is just another way of stating the law's imminence limit on justifications that are available to ordinary citizens.").
452. This argument is broadly consistent with Thorburn's (and Gardner's) concern for authority to make decisions regarding justifications.
453. See John Gardner, Justification under Authority (forthcoming 2009), available at http://papers.ssrn.com/sol3/-papers.cfm?abstract-id=1345763.
454. See Greenawalt, supra note 230, at 1919.
455. WILLIAM STYRON, SOPHIE'S CHOICE (1979). For application of the story to the problem of torture, see Colb, supra note 171, at 1468-71 (discussing dilemmas that cannot be evaded because refusing to act will result in death).
456. See United States v. Altstoetter, in 3 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 (1951) [hereinafter Justice Case].
457. See, e.g., M. Cherif Bassiouni, The Institutionalization of Torture under the Bush Administration, 37 CASE W. RES. J. INT'L L. 389, 400 n. 45 (2006).
458. See United States v. Weizsaecker, in 12-14 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 (1951) [hereinafter Ministries Case].
459. The prosecution seemed to take the position that the U. S. Military tribunal sitting at Nuremberg was, in fact, an international tribunal, by virtue of the fect that its authority stemmed from Control Council Law No. 10, which was enacted by the same Allied Powers that issued the Moscow Declaration that created the International Military Tribunal.
460. See Justice Case, supra note 265, at 60, 63 ("We try them in an international court for crimes under international law which finds its authority not in power or force, but in the universal moral judgment of mankind."). However, at other points the prosecution was a bit ambiguous on this point.
461. See id. at 106 ("[Although this indictment is brought in the name of the Government of the United States, this case in substance is the people of the world against these men who have committed criminal acts against the community we know as the world."). In the judgment, however, the judges held that the tribunal was international.
462. See id. at 984 ("[T]he jurisdiction of this Tribunal rests on international authority... and enforces international law as superior in authority to any German statute or decree.").
463. See Justice Case, supra note 265 at 60-63;
464. Ministries Case, supra note 267, vol. 12 at 13.
465. See Justice Case, supra note 265 at 33.
466. See id at 15-26.
467. See id at 284-310.
468. See id.
469. See id.
470. See id.
471. See id. at 353-593.
472. See id. at 1081-1177.
473. See id. at 35.
474. Id.
475. Id. at 35-36.
476. Id. at 36.
477. Id. at 38.
478. Id.
479. Id.
480. Id. It is important to note that lay participation in judicial decision-making is common in civil law jurisdictions, where courts are often composed of a panel of judges including some that are lawyers and others that are not. This "lay participation" in the decision-making process compensates for the fact that such jurisdictions sometimes do not have juries on which non-lawyers act as decisionmakers. So the existence of the non-lawyers on the People's Court is not, in and of itself, problematic. What is disturbing is that the lay judges were exclusively high-ranking officers of the Nazi military and the SS, or from the Party hierarchy.
481. See id at 33.
482. Id at 40.
483. Id at 42.
484. Id at 40-41.
485. Id. at 40-43.
486. Id. at 40-41. Germany's highest court acquitted the defendants, communists who were charged with participation in a conspiracy to overthrow the government by burning down the Reichstag parliament building. Marinus van der Lubbe was convicted and executed, but the other defendants were acquitted for lack of evidence of their participation in the conspiracy. The outcome of the trial was an embarrassment for Hitler, who had used the alleged conspiracy as a pretext for consolidating his constitutional power. The acquittals led to Hitler's decision to create a hand-picked People's Court to hear treason cases, many of which resulted in death sentences.
487. See, e.g., id. at 55-56.
488. Id. at 56-57.
489. Id.
490. Id at 41.
491. Id. at 45.
492. Id at 45-46.
493. Id. at 57 ("Law and justice were destroyed for a reason. They were destroyed because by their very nature they stood athwart the path of conquest, destruction, and extermination which the lords of the Third Reich were determined to follow. The Nazi special Courts, double jeopardy, the flouting of the letter and the spirit of the law-those things were not ends in themselves. They were methods deliberately adopted for the purpose of causing death, torture, and enslavement.").
494. Id. at 75-78.
495. Id. at 75.
496. Id. at 75-76.
497. Id. at 77-78.
498. Id. at 78-82.
499. Id. at 1063.
500. Id.
501. The tribunal did not use the word genocidal, since genocide at the time was not yet a distinct international crime, but rather subsumed under crimes against humanity.
502. Id. at 69.
503. Id.
504. See id. at 69 ("[I]t is not amiss to point out that those who are connected with a plan to extend, or who consent to, or abet the unlawful extension of German law and German courts into overrun countries contrary to the laws of war, are doing acts which amount to larceny while armed or robbery; and that those individuals who commit acts which abet or are connected with the waging of an aggressive war or a plan to do so, or who consent thereto, are resisting the efforts of the peace enforcing nations of the world to arrest the criminal. The evidence in this case will establish the unprovoked homicide of countless numbers as the result of the doing of such acts by these defendants which are clearly felony murders.") ;
505. see also id. at 1137 (finding defendants guilty of aiding and abetting the Night and Fog plan).
506. Id. at 1025.
507. Id.
508. Id. at 1032.
509. Id. at 1025.
510. Id. at 1034.
511. Id. at 1061.
512. Id. at 1079-81.
513. Id. at 31-33.
514. See, e.g., United States v. Brandt, in 1 DUALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 (1951) (trying Nazi doctors for, inter alia, medical experiments performed on human subjects) ;
515. United States v. Flick, in 6 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 (1951) (trying industrialists charged with using slave labor) ;
516. United States v. Krupp, in 9 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 (1951).
517. Justice Case, supra note 265, at 33.
518. Id.
519. Id.
520. Id.
521. Id.
522. They were charged with "criminal participation in government-organized atrocities and persecutions unmatched in the annals of history." Id at 1177.
523. Id at 1158-59.
524. Kevin Jon Hellet, John Yoo and the Justice Case, BALKANIZATION, May 1, 2008, http://balkin. blogspot.com/2008/05/john-yoo-and-justice-case.html.
525. Justice Case, supra note 265, at 1094.
526. Ministries Case, supra note 267.
527. Id.
528. See id vol. 14, at 232, 958.
529. Although the Ministries Case has not received strong attention in the scholarly literature, the one example is Kevin Jon Heller, who has argued in several internet postings that the Ministries Case is directly relevant to the current torture cases in the United States.
530. See Heller, supra note 325;
531. see also Kevin Jon Heller, Want to Prosecute the Lawyers? Cite Ministries-Not the Justice Case, O1PINIO JURIS, Apr. 23, 2009, http://opiniojuris.org/2009/04/23/want-to-prosecute-the-lawyers-cite-ministries- not-the-justicecase/.
532. Ministries Case, supra note 267, vol. 14 at 496.
533. Id.
534. Id.
535. Id.
536. Id.
537. Id. at 496-97.
538. Id. at 497.
539. Id.
540. Id. at 96.
541. Id.
542. Id.
543. Id. at 96-97.
544. Id.
545. Id.
546. Id.
547. Id.
548. Id. at 958.
549. Id.
550. Id.
551. Id.
552. Id.
553. Id at 959.
554. Id.
555. Id.
556. Id.
557. Id.
558. Heller, Want to Prosecute the Lawyers?, supra note 330 (discussing the Ministries Case).
559. See, e.g., Bennoune, supra note 246, at 59.