Suppose that your boss has a lawyer, and you go to that lawyer for advice. You want to do something on behalf of your boss, and you want to make sure you’re not going to get in trouble with the law for it. The lawyer — either because he’s a lousy lawyer or because he has an agenda that leads him to want you to do that thing for the boss — gives you an incorrect written opinion that your conduct would not be illegal. Based on the lawyer’s erroneous advice, you do what you wanted to do all along, breaking the law 266 times. (Suppose also that the particular law you have violated does not require proof of willfulness.)

     A) Can you be prosecuted for your violations of the law?
     B) Can the lawyer be prosecuted for giving you bad advice?

The answer to (A) is an unqualified “yes.” Your criminal liability does not depend on whether you knew you were breaking the law. That you were acting in good-faith reliance on legal advice is not, in this situation, a legal defense.

The answer to (B) is a more lawyerly “yes, but whether such a prosecution would succeed might depend on whether the evidence showed that the lawyer knew that he was encouraging you to break the law — in which case he would be liable as a party — or was just a lousy lawyer.”

If Jay S. Bybee, Steven G. Bradbury, and John Yoo were prosecuted for torture under 18 USC §§ 2340A and 2, the evidence might support a finding that they were simply shitty lawyers. To pick only one example, Jay S. Bybee (now a judge on the Ninth Circuit) wrote of “stress positions” in his August 1, 2002 memo to CIA counsel John Rizzo:

Any pain associated with muscle fatigue is not of the intensity sufficient to amount to “severe physical pain or suffering” under the statute, nor, despite its discomfort, can it be said to be difficult to endure.

A competent lawyer would have asked his client a few more questions before leaping to this conclusion, and would have learned of the CIA’s own research in 1956 concluding that KGB stress positions (simply making victims stand for 18-24 hours) produced “‘excruciating pain’ as ankles double in size, skin becomes ‘tense and intensely painful,’ blisters erupt oozing ‘watery serum,’ heart rates soar, kidneys shut down, and delusions deepen.” (Slate.)

Bybee’s 2003 memo refers extensively to “our opinion on standards of conduct under Section 2340A.” I haven’t found a copy of this memorandum online; it was superseded on December 30, 2004 by this DOJ opinion by Daniel Levin, rejecting the definition of “severe” pain on which Bybee hung his tiny little hat:

This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”
. . . .
Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a “suffocatingly hot” and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1332-40, 1345-46 (N.D. Ga. 2002) (concluding that a course of conduct that included, among other things, severe beatings to the genitals, head, and other parts of the body with metal pipes, brass knuckles, batons, a baseball bat, and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim’s forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of “Russian roulette,” constituted torture); Daliberti v. Republic of Iraq, 146 F. Supp. 2d 19, 22-23 (D.D.C. 2001) (entering default judgment against Iraq where plaintiffs alleged, among other things, threats of “physical torture, such as cutting off . . . fingers, pulling out . . . fingernails,” and electric shocks to the testicles); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 64-66 (D.D.C. 1998) (concluding that a course of conduct that included frequent beatings, pistol whipping, threats of imminent death, electric shocks, and attempts to force confessions by playing Russian roulette and pulling the trigger at each denial, constituted torture).

(My emphasis.) A competent lawyer in Bybee’s position would have found Hilao.

However much I would love to see a trial in which a U.S. Court of Appeals judge presented the “I’m a sucky lawyer” defense to a jury, all of that is merely an interesting aside. 18 U.S.C. § 2(a) probably supports criminal liability even for the lousy lawyers — ignorance of the law isn’t a defense, even for a lawyer.

So we should indict them all, up the line from the torturer who relied on Bybee’s memo, to his or her supervisor, to John Rizzo, to Jay S. Bybee, and beyond.

We should charge those who counseled waterboarding and stress positions and sleep deprivation with hundreds of counts of torture, each a felony with a 20-year maximum. (You think sleep deprivation, stress positions, waterboarding and the like aren’t “torture”? Fine, let’s let twelve jurors decide. You think there’s a valid justification defense? Okay, we’ll let twelve jurors decide.)

This will be a federal criminal case, and we should treat it as such, giving everyone the opportunity to roll on their fellows (like John Yoo) and their bosses (like Alberto Gonzales) for a deal.

We should prosecute them all, and we should put someone in prison.

Why so bloodthirsty?

Because by not prosecuting the torturers, we ensure that torture will recur.

I’m not advocating retribution. I can’t say who deserves what. I wouldn’t be shocked to learn that every person tortured by the CIA had done worse to other people. We’re never going to “get even.” I don’t think that we should subject Bybee to the torment that he poo-poos as “discomfort” (though he might be concerned that, in a just universe, that is how he will spend eternity).

But waterboarding is torture, Americans don’t torture, and this is a case — involving intelligent, educated people calmly and consciously deciding to do abhorrent things based on the advice of counsel — in which general deterrence will work. So to keep potential future torturers from turning to waterboarding when the next administration’s lawyers approve it, past torturers have to punished.

Even if you’re the president, just saying something is illegal does not make it illegal — at least not in any way that might affect people’s conduct. For something to be illegal, and for that illegality to deter future conduct, a sanction has to attach.

If we say, “waterboarding is torture, and torture is illegal, but we’re not going to punish those who have waterboarded” then the next time a DOJ bureaucrat declares that waterboarding is not torture the aspiring waterboarders, hiding in good faith behind that advice, will rationally conclude that they can waterboard with impunity.

Someone has to go to prison because, while President Obama says, “these methods of interrogation are already a thing of the past“, hoping doesn’t make it so.