Who's Above The Law?

If you're trying to figure out who, exactly, will face investigation or prosecution for participating in torture, you might be confused by the conflicting messages coming from the administration.

From AG Holder:

Attorney General Eric Holder said Wednesday that he would "follow the law" as he weighed potential prosecutions of Bush administration officials who authorized controversial harsh interrogation techniques. . . "We are going to follow the evidence, follow the law and take that where it leads. No one is above the law," Holder said at an Earth Day event.

But is that true? Obama's said repeatedly that interrogators who followed legal guidance in "good-faith" shouldn't be prosecuted. But remember, just because an interrogator followed legal advice doesn't mean they didn't break the law. Legal opinions from the Justice department aren't laws themselves - they're interpretations of laws.

I wrote yesterday that it seemed the White House might be politically prejudging what happens to interrogators - even as they insisted that any decision to prosecute policy authors would of course be made at the Justice Department - a seemingly inconsistent standard.

On the case, Greg Sargent follows up and gets a statement from Justice:

"The Justice Department makes decisions on Federal prosecutions."

Huh. So does that mean interrogators will be investigated? And why, then, has Obama been pre-emptively declaring who should and should not face prosecution? Who's above the law?

Tags: Eric Holder, OLC Memos, torture (all tags)



Re: Who's Above The Law?

Actually, the interrogators themselves do have a good deal of reason not to be prosecuted.  First, if they believed as a result of these memos that what they were doing was not torture, and it cannot be proven, beyond a reasonable doubt, that the belief was entirely unreasonable (which I guarantee you it cannot), they lack the mens rea necessary for conviction.  Second, governmental qualified immunity will also protect them unless it can be shown convincingly that they were not acting in good faith, which again, it will not.

by bannana873 2009-04-23 11:48AM | 0 recs
They can be prosecuted

but there's a good chance they can be acquitted...which is worse than not prosecuting at all IMO.

by DTOzone 2009-04-23 11:50AM | 0 recs
Re: They can be prosecuted

I agree.  I'd rather they not be prosecuted at all.  If they're prosecuted and acquitted, it will give Republicans a LOT of firepower in the next election.  "Look at the Democrats.  They hate the intelligence community so much they prosecuted them for things that a jury of everyday Americans found absurd."

It would be a phony talking point, but reality has never stopped Republicans from making a good-sounding soundbite.

by bannana873 2009-04-23 11:52AM | 0 recs
Re: Who's Above The Law?

Are you sure that mens rea is actually an element of the crime?

by Josh Orton 2009-04-23 11:55AM | 0 recs
Re: Who's Above The Law?

If it's not, then there's a Supreme Court case that establishes that receiving legal advice that something is within the law is valid defense against committing crimes.

by Jess81 2009-04-23 12:23PM | 0 recs
Re: Who's Above The Law?


by Josh Orton 2009-04-23 12:24PM | 0 recs
Re: Who's Above The Law?

Can't.  If I could then I would have said the case name right there.

It came up a lot during the discussion of giving telecoms retroactive immunity if that's any help.  I'm trying to find it.

by Jess81 2009-04-23 12:27PM | 0 recs
Re: Who's Above The Law?

Seems like it would have to be a really narrow ruling - otherwise people would claim this privilege left and right...

by Josh Orton 2009-04-23 12:30PM | 0 recs
Re: Who's Above The Law?

It's much more narrow than what I was saying - I was hoping someone would chime in with the name.

It protects employees and civil servants mostly - like had immunity not been in the FISA bill you wouldn't have seen telephone lineman on trial or anything like that.  It doesn't apply to civil suits, but civil law doesn't concern itself with mens rea.

by Jess81 2009-04-23 12:40PM | 0 recs
mens rea

is a requirement, but this is not a mens rea defense, its an ignorance of the law defense which is not an adequate defense. see People v Marrero

by sepulvedaj3 2009-04-23 01:13PM | 0 recs
Is it?

I didn't know that wasn't legal is different than I was assured it was legal.

by DTOzone 2009-04-23 01:22PM | 0 recs

i didnt know it was illegal and i was assured it was not illegal are BOTH mistake of law claims and follow the same rules.

mens rea is different altogether.

by sepulvedaj3 2009-04-23 02:32PM | 0 recs
Not when being told

by LAW ENFORCEMENT officials that something isn't illegal.

There's a difference between my dad telling me something it's ok and a cop or a lawyer telling me something is ok.

by DTOzone 2009-04-23 02:37PM | 0 recs

if a cop tells you something is ok, and a lawyer tells you something is ok, and it is NOT ok (i.e. illegal) mistake of law is NOT a defense, and while the Jury may not convict you because they find you innocent, if they did, and you appealed, you will not get anywhere.  

Again, if a cop or lawyer tells you that smoking pot in california for medical purposes is not a federal offense, and they misread the laws and should have said state law offense, and you rely on that information, and you smoke pot for glaucoma, and the feds bust you, and your defense is "a lawyer and a cop said it was ok" then the court will look at you and laugh.

Mistake of the law is not a defense. Ignorance of the law is not a defense.

Mistake of the law and ignorance of the law is NOT MENS REA.

Choosing to pick up the joint and smoking it is the mens rea.  Whether you did it thinking the feds cant do anything to you is not mens rea, its mistake of the law, which, AGAIN, is NOT a legal defense

by sepulvedaj3 2009-04-23 02:53PM | 0 recs

The official statement mistake of law defense was held not to have been established under the particular circumstances of the following case, where the accused's alleged reliance on advice from a county sheriff's office was found unreasonable.

State v Patten (1984, ND) 353 NW2d 30, defendant relied on sheriff and county sheriff attorney

Mistake of law defense is not available to people who rely, even reasonably, on a mistaken statement or interpretation of the law received from a police officer or other subordinate officer.
Stevens v. State, 135 P.3d 688 (Alaska Ct. App. 2006).

by sepulvedaj3 2009-04-23 03:06PM | 0 recs
ok - to clarify

it is not a mens rea argument, its a mistake of law argument.
There is a Reasonable Reliance Exception If the misunderstanding is based on official, errouneous interpretation of the law by a party who has duty of enforcing or applying or interpreting that law

See Albertini where the Fed. Ct. of appeals overturned his conviction saying anti-leafletting statute was invalid.  Next day, he continued leafleting.  The S.C. said that the statute was valid, and during that he was arrested for leafleting the 2nd time.  He was relying on Ct. of Appeal's official interpretation

It cannot be from a private lawyer
Generally can only can rely on : court, administrative agency, or prosecutor.  But DOJ does enforce the law. The court interprets so that is out. Apply the law? possibly in court they apply laws to their cases...

The DOJ is not an administrative agency and neither are Bush's legal advisers. But DOJ officials can be prosecutors.  Were any of the memos written by a prosecutor? The court certainly didn't weigh in on the decision. It is dicey but could possibly be a defense, but i don't think so.  

by sepulvedaj3 2009-04-23 01:28PM | 0 recs
Re: ok - to clarify

That's what I was looking for.

But Albertini is wrong.  Is there a similar ruling with a name like Joyner or something?

by Jess81 2009-04-23 02:09PM | 0 recs
Re: ok - to clarify

trying to find that. I didnt think albertini was the case i was looking for either but its in my notes haha. Still looking. Kinda hard when in the middle of class though

by sepulvedaj3 2009-04-23 02:34PM | 0 recs
Re: Who's Above The Law?

Just some thoughts from the NYTimes.

Legal specialists from across the ideological spectrum have criticized those memorandums, especially a set written in 2002 by Mr. Yoo and Mr. Bybee, who is now a federal judge. Some have accused the lawyers of deliberately writing down a false reading of the law to enable policy makers to violate it with impunity.

But there is little precedent for prosecuting government lawyers who provided arguably bad legal opinions. Moreover, Mr. Yoo, the memorandums' principal author, had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing.

One thing could change that dynamic, however. The Justice Department's Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

by jsfox 2009-04-23 12:12PM | 0 recs
Still a difficult case to make...

You're talking about intent here, always a fragile thing to convict on.

How about you ask a simplier question?

Why is John Yoo STILL on the faculity of Berkley?

You can start with the DEAN of the law school defending him this way:

Edley comes closest to defending Yoo's work in the following exceprt, in which the Berkeley dean effectively separates a lawyer's legal analysis from its practical application:  

Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

BOOM, he was just giving his opinion, he didn't actually CAUSE the torture.

That's so convuluted it makes your head spin, this is a law professor suggesting we can just ignore virtually ever treaty we have signed since WW2, the Geneva convention...but, because he was just THINKING about it?  
He still has tenure, don't he!

Even the dean of one of the supposed most liberal universities WON'T pull the trigger on this.

And why? Because the war that would insue if Edley fired him would be astounding. Too high
a cost to fight is my take on it, Edley has bigger fish to fry?

This sounds incredibly cut and dried, but it will be some of the most complex lawyering, dragged out over months if not years, and it is a TOTAL win for the right wing.

It gets them back on their turf, National Defense, where they feel comfortable, and can really drill the meme "See, the liberals actually want to try and convict OUR people more then the terrorists..."

Again, I am not arguing this people aren't guilty, but from the Pure Tower of Punditry to actually trying people for this is like watching a NASCAR Race and thinking that looks easy, and actually driving at 200 MPH with someone 6 inches from your bumper....

It ain't as easy as you think it's going to be.

by WashStateBlue 2009-04-23 01:15PM | 0 recs
Re: Still a difficult case to make...

Why and how is John Yoo still on the faculty absolutely dumfounds me. More to the point why was he hired in the first place?

by jsfox 2009-04-23 01:22PM | 0 recs
Re: Still a difficult case to make...

He may have tenure but actually Yoo is currently on leave from Boalt and is lecturing at Chapman College of Law in Orange County. He was recently quoted in the LA Times as being grateful to Chapman for the opportunity to escape the People's Republic of Berkeley.

by Charles Lemos 2009-04-23 04:08PM | 0 recs
That's the best he can come up with.?

That one-liner was stale in the 60s...

He may be good at writing torture justification memos, but he needs someone from the Daily Show to write his zingers for him.

by WashStateBlue 2009-04-23 08:59PM | 0 recs
Holder to Repub Cong: you're a dumb-ass!

http://news.yahoo.com/s/ap/20090423/ap_o n_go_ca_st_pe/us_holder_interrogation_11

"It is certainly the intention of this administration not to play hide and seek, or not to release certain things," said Holder. "It is not our intention to try to advance a political agenda or to try to hide things from the American people."

Republicans -- including former Vice President Dick Cheney -- have urged the Obama administration to release other, still-secret documents detailing what intelligence was gained from the controversial interrogation techniques.

"I think you have an obligation to release the rest of the memos," said Rep. Frank Wolf, R-Va.

Holder said he wasn't sure exactly which memos Cheney is referring to, because he hasn't seen them. The attorney general suggested such classified documents may exist at other agencies.

"I'm the attorney general and I don't control many of the memos you might be talking about," said Holder.


by WashStateBlue 2009-04-23 03:20PM | 0 recs
A strong Attorney General

 If Holder turns out to be a strong and independent Attorney General, then we should all be proud of him. And the guy who nominated him, as well.

by QTG 2009-04-23 06:05PM | 0 recs


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