AFAIK, there is no other area of law where “my lawyer told me it was OK” is an acceptable legal argument. You just have to sue your lawyer for malpractice for giving you false advice.

I have no problem with such suits in this case. People whose job it was to know and explain the law lied about it, and they should be held responsible for that. (And so should the people who ordered them to lie.)

But the basic principle of the rule of law is that the law rules. Neither your boss nor your lawyer can give you permission to break it. (I’d say “otherwise people will start looking for lawyers that will tell them it’s OK to break the law”, except that’s exactly what already did happen in this case. And needs to be stopped from happening again.)

@40: That’s exactly why I object to “they were following the AG’s advice” being used to stop the investigation-trial-sentencing process before it starts. Whether or not that should be considered in favor of some leniency after the facts are known (maybe, in some cases, for people who didn’t really know what was going on), it certainly isn’t a good reason to not even look.

I don’t think it’s that simple at all. For one, the whole text of the law is vast and unsearchable – it may not be possible for someone to read all of US legislation in their lifetime, let alone before taking action. Secondly, it requires interpretation by specially trained people.

So normally when people want to know if something is legal or not they seek legal advice. Advice from the US AG is of pretty high standing.

The people who got the advice and failed to follow it should clearly be prosecuted – everyone can agree on that. I think the people who gave the advice should be charged with everything resulting from their advice.

Prosecute, yes. Punish, no. Mitigating circumstances are for the sentencing judge to consider, and that’s fine. But consideration of mitigating circumstances comes at the end of the process, not the beginning; and for good reason.

Maybe some torturers should receive lessened or even suspended sentences, depending on the precise nature of their acts and the circumstances. Some could even be presidentially pardoned. (The suspected-but-not-actual torturers, if any, should be acquitted. Prosecution isn’t necessarily persecution.) But you can’t be in a position to judge those things until after you’ve uncovered the facts and determined whether or not they violated the law in the first place. Prosecution and trial develop the factual record to determine whether or not there is any basis for leniency.

since there is no way for people to know what’s right except for them to be told

This is where “ignorance of the law is no excuse” really does apply. Right and wrong are difficult even for philosophers, but the text of the law is publicly available and people who don’t bother to check whether their actions are legal or illegal assume the risk that they are illegal.

Again: the whole point is that I (and people who agree with me on this issue, if any) want subordinates in this type of situation to apply the law as an independent check on their superiors’ plans. Exposing them to personal consequences when they obey illegal orders is a powerful way to do that. Of course the givers of illegal orders should be prosecuted too—but when underlings are less willing to follow illegal orders, officers who give them do far less damage, and that’s the end goal.

!

… ?!

If true, this would have merit in cases where, for example, your driving instructor says, “It’s perfectly okay to go 5 mph over the speed limit” and you are later stopped for having sped 5 mph over the speed limit. IIRC the driving instructor’s comment is not an acceptable defense/excuse in the law’s eyes, and I’m pretty sure the Geneva conventions operate according to the same principle of culpability.

Also. If people can’t figure out that “torture this guy for fake information” is a Wrong Thing independent of what they are told… (sigh…)

… then it seems pretty important to send a strong message, “You should think about the legality of instructions you receive, because you will be held responsible for obeying the law independent of whatever you are told.”

The only way for the content of the orders to be directly relevant is if we were prosecuting agents for refusing to torture when ordered to do so, i.e. for insubordination, where the conflict between orders and actions is a direct element of the offense. But “my orders were illegal” is, and ought to be, a defense to insubordination, so no such prosecutions are being contemplated (AFAIK).

The underlying problem is what we, the sovereign people, want our agents to do when they are ordered to do something illegal. Most people on this site want them to obey the law and reject the orders (and possibly blow the whistle), but cultural conservatives apparently really do want them to obey the orders and reject the law. That’s the root of the debate.

‘Superior orders’ appears to be an exception to this where there are two defences available: ‘manifest illegality’ provides a defence (independent of mens rea) if the orders were not manifestly illegal. Alternatively the ‘mens rea principle’ allows the existence of the orders to be considered as a factual detail or a mitigating factor when determining mens rea.

I’m not sure I understand the issue about ‘validating’ the orders. I suppose that if the DoJ decides not to prosecute the officers then that might indicate that the DoJ doesn’t think that it can establish that the orders were ‘manifestly illegal’. Maybe that grants them a minimal kind of ‘validity’?

It seems you want to make this about the moral intuitions of the CIA officers. These are people who were asked on their job interview whether they’d be willing to sock a guy in the jaw or worse in order to intimidate him and get information from him, and their answer was “how hard?” They were told what the limits were (and why), told the limits would be enforced by the DoJ, and then told they needed to get information—and some of them decided only half their instructions really mattered. They counted on something coming up to make that enforcement moot.

They were moral free agents who made decisions on the basis of the information they had, rather than demoralized idiots who had to be told what to do minute by minute.

Put more simply, there are way too many people at the CIA who rationalize their behavior by asserting that they are defending the country, when, in fact, their actions are destroying the reputation of the country and precipitating the very terrorism they claim to be countering.

Put even more simply, who could have even a basic, working knowledge of both Common Article 3 and the War Crimes Act and not come to the thoroughly sound opinion that the Bybee/Yoo/Haines memos were politically corrupt and legally insupportable?

Only people who wanted cover for their illegal actions. Those are the people with whom we should find sympathy because they’re “demoralized?” The memos show, quite clearly, that their construction was a cooperative effort on the part of the OLC, the White House and the CIA, rather than a dispassionate review of all legal precedent relating to torture.

I’m supposed to sympathize with tactics that more resemble those of organized crime than a government agency subject to oversight?

Horseshit.

“In some way, yes: it validates the idea of a memo, that officers should pay attention to memos written for the purpose of delineating the regulations that should govern their actions.”

Uh, no, not just that. It does what Bob said—it treats those torture lite-permitting memos as though they were legitimate instructions on how far torture could proceed. And it treats CIA interrogators as moral numbskulls who shouldn’t be prosecuted for torturing people if they stayed within the limits set out by those memos. Now maybe CIA interrogators are moral idiots, but in that case they could be let off the hook on grounds of mental incapacity (or whatever the legal term would be).

Prosecuting the officers for exceeding the memos I feel validates the memos in some way

In some way, yes: it validates the idea of a memo, that officers should pay attention to memos written for the purpose of delineating the regulations that should govern their actions.