The Obama administration released today four memoranda detailing the legal analysis regarding interrogation techniques, most notably involving Abu Zubaydah. There is a lot of outrage regarding the interrogation techniques approved, but those are mostly non-legal issues. Some of the techniques approved, such as grabbing the collar, should not evoke moral outrage in any reasonable person. Other techniques are much more questionable, such as water boarding. I’ll address these issues in a later post.

What is important to note at the outset, however, is to distinguish between the law and morality. Not everything which is immoral is illegal. To be guilty of a crime, one must violate a specific criminal law. The criminal law invoked here is 18 U.S. C. sec. 2340 and 2340A. Those who are calling for prosecution need to read the statutes. A plain reading of the language makes clear that there was no crime committed.

18 U.S.C. sec. 2340 provides the definitions of what constitutes torture (emphasis mine):

As used in this chapter–

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

18 U.S.C. sec. 2340A provides for criminal sanctions for conduct which constitutes torture as defined in sec. 2340:

(a) Offense.–Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.–There is jurisdiction over the activity prohibited in subsection (a) if–
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.–A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

The key wording in the statute is “specifically intended” and “severe.” A generalized intend to cause harm, but not necessarily severe pain or suffering, is not a crime. Similarly, a specific intent to cause some, but not severe, pain or suffering is not a violation. There are no guidelines as to what constitutes severe pain or suffering, other than that in the case of mental pain or suffering, the effects must be of a long duration.

This is a poorly written statute, and it will be interesting to track the legislative history of why and how the key terms were inserted, and further definitions omitted. What is important for the present discussion is that the requirement of specific intent, and the use of terms such as “severe” and “prolonged” means that Congress meant to set a very high bar before there could be a prosecution. Congress clearly intended to give wide latitude to those conducting interrogations before one crossed the line into illegal torture.

The decision of the Obama administration in not prosecuting either the authors of the memoranda or those who acted in reliance on the memoranda should not be viewed as being either an act of benevolence or deal making politics. Rather, it is highly likely that the Justice Department or others determined that based on the wording of this statute, there was no crime committed, or that there likely would be valid legal defenses.

The problem is not the lawyers or those who relied on the lawyers, but the law. There will be no prosecution because under the statute as passed by Congress, there was no prosecutable crime committed.

UPDATE: Glenn Greenwald’s post on the subject of non-prosecution is typical of those who don’t read the statute or understand the law. Greenwald makes the point that the government, under international treaty, “shall … submit the case to its competent authorities for the purpose of prosecution….”

That has been done. The case was submitted to the Department of Justice, which made a decision not to prosecute. Submitting a case for prosecution does not mean that there must be criminal charges brought if the prosecuting authority believes no crime was committed.

The explanation of Eric Holder as to the reason for non-prosecution unfortunately is imprecise as to the reason. I believe that when Holder says that it would be “unfair” to hold criminally liable those who relied on legal advice of DOJ, Holder simply is stating what is obvious under the statute. There needs to be “specific intent” to cause “severe physical or mental pain or suffering.” But if DOJ has opined that the specific conduct did not fall under this category, then there was no “specific intent.”

Is this circular? Yes, but that is the way the statute works. Those who argue that we must “respect” the law have to use that respect even when they don’t like the result.

UPDATE No. 2: I agree with former Attorney General Michael Mukasey and former CIA Director Michael Hayden, who write that the Office Of Legal Counsel will no longer function as legal counsel, but as a political unit more concerned with after-the-fact partisan politics than with applying difficult legal issues to difficult issues:

“Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.”

Related Posts:
What to Do About John C. Yoo?
Can We Also Impeach Law Professors For “Legal Distortions”?

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