Published November 2009 Bar Bulletin
The Audacity of Accountability:
Resolving the Torture Memo Conundrum by Court-Martial
By Stephen H. Carpenter, Jr.
“America stands against and will not tolerate torture.
We will investigate and prosecute all acts of torture …
and undertake to prevent other cruel and unusual
punishment in all territory under our jurisdiction.”
George W. Bush
June 26, 2003
Consistent with former President Bush’s pledge to prosecute abusive government interrogators, more than 100 members of the U.S. military have been court-martialed or officially reprimanded for mistreating detainees.1 On the other hand, few interrogators associated with the Central Intelligence Agency (CIA) have been prosecuted for similar prisoner abuses. In fact, to date, only one CIA agent has been held criminally accountable.2
Indeed, since 2007 “at least 20 cases involving CIA agents and civilians have been referred to the Justice Department for prosecution” without any subsequent action taken.3 The apparent lack of resolve in bringing CIA agents to justice seems tied to two interwoven realities.
First, the Bush administration’s Office of Legal Counsel (OLC) authorized the CIA to use torture on detainees during its interrogations.4 Second, if CIA agents were prosecuted, these cases could conceivably lead to public calls to prosecute those at the highest echelons of government, including every former official who arguably authorized the harsh tactics in the first place.
Thus, in his attempt to diffuse this potential political firestorm, President Obama announced: “It is our intention to assure those who carried out their [interrogation] duties relying in good faith upon legal advice from the [DOJ] that they will not be subject to prosecution.”5 Reading between these lines, President Obama has essentially chosen to look the other way in order to avoid stirring up the grave miscalculations of the former administration.
Even so, doing nothing in the face of compelling evidence of systemic cases of abusive CIA interrogations is no doubt difficult for our current president.6 In the face of this conundrum, President Obama has an option that may serve to hold CIA agents accountable for their crimes without subjecting senior policy officials from the former administration to criminal liability.
The best option is trial by court-martial. This article will examine the applicability of the court-martial process and demonstrate that CIA agents who tortured prisoners may be court-martialed, while senior officials who drafted opinions authorizing said acts may not.
Civilians Subject to Military Justice
CIA interrogators who abused detainees may be court-martialed under Uniform Code of Military Justice (UCMJ). Article 18, clause 2, provides: “General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.”7
Accordingly, personal jurisdiction is not dependent on military status — anyone may be prosecuted regardless of their relationship, if any, to the military. The jurisdiction of the general court-martial is not restricted to the duration of the armed conflict.8 Thus, the only jurisdictional prerequisite is that the act violated a customary principle of the law of war.
Humanitarian law, which includes the prohibition of torture, is part of the law of war.9 Additionally, it is well settled that “torture violates the law of nations” and is therefore recognized as a violation of customary international law.10
The prohibition of torture derives its customary international law status from a “general and consistent practice of states [which is] followed by them from a sense of legal obligation.”11 Common Article 3(1) to all four Geneva Conventions unequivocally demands that detainees “shall be humanely treated.” Similarly, Article 4 of Protocol II prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture [as well as] outrages upon human dignity, in particular humiliating and degrading treatment.”
The right to humane treatment is likewise codified in multiple sources of American law, including the War Crimes Act of 1996 (18 U.S.C. § 2441); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (18 U.S.C. §§ 2340-2340A);12 Torture Victim Protection Act (Pub. L. No. 102-256, 106 Stat. 73 (1992)); Alien Tort Claims Act (28 U.S.C. § 1350); Detainee Treatment Act of 2005;13 and Army Field Manual 34-52.
These various criminal and civil laws manifest the universal condemnation of the ill treatment of detainees and collectively reflect customary international law.14 Accordingly, all persons, including civilians, who torture detainees violate the law of war and are subject to trial by general court-martial.15
Decriminalization of Torture by Memo
In August 2001, Jay Bybee directly contributed to two Bush-era memos that decriminalized torture and other abusive interrogation methods. The CIA relied “heavily” on his memos by constructing its entire interrogation program on the guidance detailed within them.16
Both memos were issued on August 1, 2002. However, so far, only one memo has been released to the public; the other is still shrouded in secrecy. Nevertheless, a few things are known about it: it’s classified top-secret; it explicitly describes specific “enhanced interrogation techniques” and waterboarding is one of them.17
The disclosed memo severely restricted criminal jeopardy under the CAT such that mental harm that did not “fundamentally alter” or “substantially interfere[ ] with cognitive abilities” was permissible.18 The opinion thus seemingly authorized CIA agents to engage in all acts of torture short of organ failure and a verifiable mental disorder. To assuage fears of retribution even further (and thereby embolden criminal behavior) the memo claims agents who crossed the above-mentioned line could “potentially eliminate criminal liability” by asserting the right to self-defense and/or necessity.
Adding insult and even more physical injury, the unclassified Bybee memo claimed any constraints on torture, even those that could conceivably result in organ failure, “impermissibly encroach on the President’s constitutional power to conduct a military campaign.”19 Thus, in one fell swoop, the CAT was rendered inapplicable to CIA agents interrogating prisoners abroad.
The profound legal implications and moral judgments lying beneath the memo’s emancipating surface conjure an analogy: that is, not only were the pigs let out of the barn, the barn was burned to the ground. Now it is no longer a matter of whether to rebuild the barn; it is an urgent question of when.
Justice by Courts-Martial
First, high-ranking military officers holding top-secret security clearances are probably far less likely to disclose information impinging upon vital national security interests than civilian juries.
Second, DOJ prosecutors will not be placed in the hypocritical position of prosecuting CIA interrogators for relying on DOJ’s own assurances that the methods they employed were legal. For instance, the Bybee memo permitted all physical measures that fell short of causing “excruciating and agonizing” pain, equivalent to physical injury associated with “organ failure, impairment of bodily function, or even death.”20 Mental suffering was also a lawful aim, so long as it did not “result in significant psychological harm, e.g., lasting for months or even years.”21
In principle, military prosecutors will be better able to argue against the applicability of this language in the torture memos because they had no association with the U.S. Department of Justice that drafted, vetted and issued them.
Third, military judges, specially trained in the law of war, will unequivocally reject any claims that seek to exonerate crimes based on lawfulness of orders, self-defense and/or necessity.22 The Bybee memo’s claims that inflicting excruciating pain or chronic mental suffering could “potentially eliminate criminal liability” under an assertion of the right to self-defense and/or necessity23 will not carry any weight in the court-martial proceeding. Similarly, any defense assertion that the prosecution “impermissibly encroached on the President’s constitutional power to conduct a military campaign” will likewise be soundly rebuked.24
Finally, former government officials who drafted the flawed legal opinions about torture (or otherwise authorized said acts) cannot be court-martialed. The U.S. Supreme Court has held the crime of conspiracy is not a recognized violation of the law of war in that only “overt acts” violate the law of war; “not [merely] intentions.”25 Thus, only the CIA agents that actively tortured or abused the detainees can be court-martialed.
Incomplete Justice Deters Incompletely
The tacit endorsement of past CIA torture episodes today may very well lead to another resurrection perhaps many years from now, after President Obama has retired and his legacy of “reflection, not [CIA] retribution” is long forgotten.26
Put another way, the illegality of inhumane treatment of prisoners must never again be left to the prevailing winds of presidential prerogative. For as long as CIA unaccountability remains, its future interrogators will have nothing to fear when that next foreign detainee sits wide-eyed before them, a scenario civilized countries should hardly tolerate, much less foster.
Stephen Carpenter, Jr. is an attorney specializing in criminal military law, including the defense of general courts-martial, administrative separations and inspector general investigations. Professor Geoffrey S. Corn of South Texas College Law provided the author invaluable guidance concerning portions of this article.
1 Vince Crawley, “US Prohibits All Torture,” May 9, 2006. 103 American military personnel have faced courts-martial for physically and mentally abusing detainees, resulting in 89 federal convictions.
2 In February 2007, a federal jury convicted David Passaro, a former CIA contractor, of assaulting an Afghan detainee with his fists, legs and a metal flashlight, in connection with the June 21, 2003 death of Abdul Wali. Passaro is currently serving eight years in prison. He remains, to date, the only person associated with the CIA to be prosecuted for prisoner abuse.
3 Andrea Weigl, “Passaro will serve 8 years for beating,” The News and Observer, February 14, 2007.
4 Jack Goldsmith, The Terror Presidency.
5 Statement of President Barack Obama on Release of OLC Memos, April 16, 2009.
6 President Obama’s campaign pledge for more governmental transparency scared enough people in the CIA for them to destroy 92 tapes depicting various scenes of prisoner abuse and torture. The CIA has since disclosed highly redacted records that detail the protocols associated with waterboarding techniques, along with prisoner descriptions of abuse and torture they suffered while in CIA custody.
7 The Military Extraterritorial Jurisdiction Act of 2000, the federal War Crimes Act and Article 2(a)(10), Uniform Code of Military Justice, may serve as additional jurisdictional avenues in detaining and prosecuting American civilians who torture and abuse detainees.
8 See Ex Parte Quirin, 317 U.S. 1 (1942) (“We have no occasion now to define with meticulous care the ultimate boundaries of jurisdiction of military tribunals to try persons according to the law of war.”).
9 Hilaire McCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts (1990).
10 Filártaga v. Peňa-Irala, 630 F.2d 876 (2d Cir. 1980); see also Al-Aldansi v United Kingdom, 2001-XI- Eur Ct HR 79, para. 61 (2002) (“the prohibition on torture has achieved the status of a preemptory norm in international law”).
11 § 102 (2) of the Restatement of the Law, Third, Foreign Relations Law of the United States.
12 CAT was ratified by the Senate. As a result, Congress created its own domestic version of CAT reflected by the Torture Statute, embodied in 18 U.S.C. §§ 2340-2340A.
13 The DTA reads: “no individual in the custody or under the physical control of the United States Government, regardless of national or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment.” Indeed, the Military Commissions Act of 2000 defines “grave breaches” in context of “common article 3.”
14See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir. 1992); see also Restatement (Third) of Foreign Relations Law of the United States § 702, reporters’ note 5.
15 UCMJ, Article 18, clause 2.
16 Jack Goldsmith, The Terror Presidency.
17 Special Review, Office of Inspector General, Central Intelligence Agency, May 7, 2004, pp. 2–3.
19 Jay Bybee, Memorandum for Alberto R. Gonzales, Counsel to the President, August 1, 2002.
20 Jay Bybee, Memorandum for Alberto R. Gonzales, Counsel to the President, August 1, 2002.
22 Vienna Convention on the Law of Treaties, A/CONF. 39/27, adopted 22 May 1969 (no derogation permitted from prohibition of torture).
23 According to Jack Goldsmith, the former head of the Office of Legal Counsel of the Department of Justice, the CIA’s rules of engagement meant ”violent acts aren’t necessarily torture, if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under color of presidential authority.”
25 Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749 (2006). See also Rasul v. Rumsfeld, 414 F. Supp. 2d 26 (D.D.C. 2006) (holding Secretary of Defense and other military officers are immunized from tort liability associated with detainee abuse).
26 Statement of President Barack Obama on Release of OLC Memos, April 16, 2009.