Conservatives have been all a'tizzy defending torture since President Obama released the Yoo/Bybee memos two weeks ago. From "intellectuals" like George Will and Michael Kinsley to fire-breathers on Fox News, they've thrown up all kinds of arguments for why neither those who authorized nor those who conducted torture should be investigated, let alone prosecuted. And as for progressives who call for investigation, we're partisan, we're naïve, we're anything but trying to uphold the rule of law.
Are there legal defenses for torture? Sure. But those defenses exist in a court of law, not in secret memoranda. The law is not an institution of secrets, and our Constitution trusts ordinary citizens to make those legal decisions.
More below the fold....
Is Torture Legally Indefensible? Not Exactly....
Torture is a crime, by our Constitution (the Eighth Amendment), by our treaties (including the Geneva Convention), and by federal statutes. Is that the end of the legal issue? No. Murder, battery, and extortion are also crimes. And all crimes - including murder, battery, extortion, and torture - include some legal defenses. We didn't need John Yoo or Jay Bybee to tell us that. We've had those defenses for centuries.
But you don't plead a defense in a secret memorandum. You plead a defense in a court of law, in a public proceeding, to a judge or a jury. That's how the rule of law works, and conservatism's arrogant disdain for the rule of law is at the heart of the torture debate. Conservatives have been trying to neuter our courts for a generation, from complaints about "activist judges" to "tort reform" to court-stripping legislation to evading the FISA Court and now claims that investigating crimes would be "criminalizing policy disagreement."
Many conservatives - despite their "law and order" rhetoric - don't like or trust the institution of law. If they did, they'd probably welcome investigations of torture, because all of the defenses they've put out in the media could be offered to a jury ... and they might even win a not guilty verdict.
As a criminal appellate attorney, I studied and used a wide variety of legal defenses in representing my clients. Most were technical, having to do with whether the prosecution had met its burden of proof. The statutory language that defines a crime is broken out into elements, and the state must prove every element of the offense charged, beyond and to the exclusion of any reasonable doubt, with evidence lawfully obtained and lawfully presented to the finder of fact. If the prosecution can't prove a necessary element, the defendant is entitled to acquittal. If the prosecution can't prove an element without using evidence that was unlawfully obtained, or without presenting that evidence in an unlawful manner at trial, the defendant is entitled to acquittal.
To call these "technicalities" is both accurate and misleading. It's accurate in the sense that they question the technical components of the prosecution's case. It's misleading in that it implies they are less important than the defendant's guilt or innocence. Our system of law is premised on the idea that an unfettered government - rather than criminals - is the greatest danger to our lives and liberty. We make it difficult for government to put citizens in prison or on death row for the simple and sensible reason that we have more to fear from government than we do from each other. Government can protect us from each other, but an unfettered government cannot protect us from itself.
But aside from the technical defenses, there are also legal principles known as affirmative defenses. We call them affirmative the burden of proof shifts to the defendant. The defendant must raise the defense, and the defendant must present evidence to prove the defense applies in his/her case.
Affirmative defenses fall into two broad categories: justifications and excuses. In most cases there's little or no practical difference; either a justification or an excuse can yield a not guilty verdict. But we have greater sympathy for a justification (e.g.: self-defense) than we do for an excuse (e.g.: insanity). As a defense attorney, I'd much rather plead a justification than an excuse, because juries are more likely to acquit on a justification than on an excuse.
The affirmative defenses conservatives have offered for torture fall generally into three classes:
- Defense of third party - This is a legal justification, and it's the so-called "ticking bomb" argument. If presented in court, it would go something like this.
You may find that my client violated the law by committing an act of torture, but my client was acting to protect the American people. My client had reason to believe there was an imminent terrorist threat, and in fact there was. The terrorist he was interrogating caused that threat, not my client, and not the American people. My client believed these interrogation tactics would yield the information he needed, and he had no other way to stop the threat. He got that information and stopped that threat.
Note there are four important factual elements that must be proved by evidence: (a) there was an imminent threat to a third party; (b) the victim caused the threat; (c) the acts alleged were a reasonable attempt to protect the third party; and, (d) the defendant had no other means to protect the third party. This cannot be a hypothetical proof. The defendant must present evidence to prove those elements did exist, or facts that would lead a reasonable person acting in good faith to believe the elements existed, in his/her case. And of course the prosecution can present evidence to rebut those elements, e.g.: that torture does not yield reliable information and thus is not a reasonable way to protect the American people. (Note: I included this defense for completeness, but as Firecrow notes below, the trial judge could and arguably should bar the defendant from even raising such a defense, under the terms of the U.N. Convention Against Torture.)
- Temporary insanity - This is a legal excuse, and it's the so-called "post-9/11" argument. If presented in court, it would go something like this.
You may find my client violated the law by committing an act of torture, but please consider my client's state of mind at the time. It was right after 9/11. Like all of us, he was outraged and in shock. He believed he was doing the right thing. We can look back now and say maybe he was or he wasn't, but at the time he felt compelled to do it and believed it was right.
This defense would have to pass the M'Naughton standard, which is essentially that the defendant, because of some mental defect, was unaware of the nature and consequences of his actions. Either he didn't know what he was doing, or he didn't know it was illegal. The "mental defect" would be the outrage and shock after 9/11. But given that the interrogators apparently expressed their doubts up the chain of command - that's why the Yoo/Bybee memos were written - and that they went to such lengths to keep their actions secret, it would be difficult to convince a jury that the interrogators reasonably believed what they were doing was legal and right.
- Mistake - This is also a legal excuse, and it's the "just following orders" argument. If presented in court, it would go something like this.
You may find my client violated the law by committing an act of torture, but remember that he'd been told it was legal. My client is not a legal scholar. He's not schooled in the Constitution, the Geneva Convention, or federal statutes. He's an intelligence officer. The lawyers up the chain of command told him these acts were legal, and he believed them.
The problem here is that "ignorance of the law is not an excuse." There is a legal defense for mistakes of fact - e.g.: you took what you thought was your bicycle, but in fact it was another bicycle that looked exactly like yours but belonged to someone else - but we are all presumed to know what is legal and what is illegal. And it is very difficult to rebut that presumption: a defendant must show that he had both no reason to doubt the legality of his actions and good reason to conclude those actions were legal. If you recognize a need to ask a lawyer for guidance, and that guidance turns out to be wrong, you had a reason to doubt the legality of your actions and neither your nor your lawyer's ignorance of the law will excuse you.
Jury nullification is not a defense per se, but a fact of how our legal system operates. The Fifth Amendment Double Jeopardy Clause precludes the government from appealing a not guilty verdict, or filing the charges again, regardless of the evidence of guilt. So if the jury decides to acquit, even when the evidence of guilt is overwhelming, that is the end of the case. There are some exceptions - a civil case can be filed even after a criminal acquittal, and a different sovereign can try the defendant on the same criminal charge - but I'll set those aside for purposes of this discussion.
As a matter of trial strategy, jury nullification is a difficult strategy because the defense attorney can't tell the jury it exists. A defense attorney can't say "As a jury you can ignore the law and find my client not guilty even if you find the evidence proves my client's guilt beyond a reasonable doubt. You don't have to explain your verdict, and under our legal system the prosecution can't challenge a not guilty verdict." To say that would violate the attorney's oath to uphold the law, and it would probably get the attorney sanctioned if not disbarred.
But the attorney can get to the same place by "plucking the heartstrings" of the jury. Often the nullification argument comes down to a legally groundless but emotionally compelling plea that the act needed doing or the victim deserved it. One of most famous jury nullification summations was given in the John Grisham novel A Time To Kill, delivered on screen by Matthew McConaughey:
This is the "but these were terrorists" defense. It says the law be damned, the act needed doing. And sometimes juries agree.
"Tell it to a jury."
All of these defenses exist in our law. All of them respect the rule of law, even jury nullification. As bizarre as it seems, jury nullification respects the rule of law because in order to make that claim, a defendant must plead for the mercy of the court. The defendant must "tell it to a jury."
And that's something conservatives don't want to do. Their objections are not about defending those who authorized or committed torture from unjust prosecution. We have legal defenses to use when a prosecution is unjust. Their objections are about rejecting the rule of law itself. As they see it, the decisions of the Bush administration and the actions spurred by those decisions should be beyond question, period. To make a legal defense, you must acknowledge and submit to the rule of law.
Let the Department of Justice investigate. Where there is evidence to warrant prosecution, let the Department of Justice prosecute. Let the defendants present a defense. And let a jury of ordinary citizens render a verdict. That is the rule of law.
And that's what conservatives reject.