WINN: Why there will be no prosecution

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By John Winn

COMMENTARY:

Unfortunately, many on the extreme left, including Moveon.org and the Society of American Law Teachers (SALT) have convinced certain distinguished members of Congress that "torture" trials are in order for CIA officers, Justice Department lawyers, the former vice president and others.

Whatever the merits of seriously investigating the treatment of detainees, criminal prosecutions are the legal equivalent of "ready, fire, aim." There are in fact at least three valid reasons why criminal sanctions are doomed to failure.

Officers and Bush officials are probably immune from prosecution.

Even if President Obama backtracks from his ambiguous "intention to assure" intelligence operatives that they need not fear prosecution, employees of the U.S. government engaged in detainee interrogations may rely upon the so-called "CIA loophole" provided by Congress in the Detainee Treatment Act of 2005 (DTA). That statute, sponsored and championed by Sen. John McCain, Arizona Republican, essentially provides a handy "get out of jail free" card for almost anyone involved directly or indirectly in the interrogation of noncitizens for intelligence purposes.

Section Sec. 2000dd-1 of the DTA (titled appropriately enough, "Protection of United States government personnel engaged in authorized interrogations") states it is a defense to criminal prosecution when an "officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful."

The DTA further states "good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful."

Considering the legal advice in question came from the Justice Department's Office of Legal Counsel (OLC), the legal equivalent of a Delphicoracle, it is absurd to argue lack of good faith by agents acting within the boundaries established by the memos.

A learned colleague also directed me toward the 1965 Supreme Court case of Cox v. Louisiana. Cox holds it is a form of entrapment (a due process violation) for law enforcement officials to prosecute someone for activity which those same officials have authoritatively advised was not illegal. Cox follows the earlier case from 1959 of Raley v. Ohio. Raley overturns the contempt convictions of witnesses who exercised their right to remain silent before the Ohio legislature, a privilege a state commission had earlier led them to believe was available.

Officers and officials should also breathe easy knowing their legal expenses will be fully covered by taxpayers. The DTA provides for counsel fees, court costs, bail and other expenses "incident to the representation of an officer, employee, member of the Armed Forces before U.S. or foreign courts." The DTA also incorporates another federal statute that provides free representation before civil courts, just in case anyone at Guantanamo tries to sue Dick Cheney for civil damages.

You can't convict someone of a crime unless he violates a law. This is even simpler than it sounds. Despite a diligent search, I couldn't find any U.S. Code provision titled "Illegal Drafting of a Flawed Legal Memo."

Ignoring for now legitimate arguments that the memos were not flawed, any second-year law student (or former professor Obama) could tell you most serious crimes require some degree of mens rea. This holds that one's actions are not criminal unless one has a "guilty mind." In other words, one must appreciate to some degree that one is committing a legal wrong while engaged in that wrong.

For Bush officials, including memo authors John Yoo and Jay Bybee, then of the Justice Department's OLS, this seems a complete and perfect defense. For CIA operatives, it comes pretty close in my book.

Mr. Yoo and Judge Bybee in particular have a truly enviable and distinguished record of legal scholarship. I am convinced they believed their advice was good at the time they gave it (October 2002). I suspect they even took pride in it. Flawed or not, the memos represent honest, good faith, intellectually-sourced work product. Almost as important, they were motivated by a compelling desire to protect national security.

Although technically related to civil cases, the doctrine of qualified immunity might also be available. The 1971 case of Bivens v. Six Unknown Federal Narcotics Agents provides a degree of civil immunity for government officials, even if they violate the civil rights of others.

Bivens protects officials performing discretionary functions (like writing legal memos or interrogating terrorists) as long as their conduct does not violate then existing "clearly established law." This water could get muddied with a 30-second Lexis dump consisting of citations to decades of conflicting (and often confusing) scholarship regarding what is or isn't torture and who is or isn't subject to the Geneva Conventions.

No jury would ever convict. Assuming we stick to American courts (and a cobbled-together Nuremberg-type proceedings isn't really an option), no assemblage of 12 rational people could ever reach unanimity. In fact, were I defending such a case, my final argument would simply consist of replaying tapes of New Yorkers jumping from the World Trade Center roof to avoid being immolated by burning aviation fuel.

Finally, plausible evidence that plots were in fact foiled and American lives saved through "harsh methods" would be the ace-in-the-hole. Besides, no one likes a Monday morning quarterback, especially if the defendants can convince the jury they actually did something to protect us from Osama bin Laden.

John Winn teaches business law and constitutional law at Shenandoah University in Winchester, Va. He served in the Army Judge Advocate General Corps from 1985 to 2000 including five years on the Law Faculty at the United States Military Academy at West Point, N.Y.