Sunday, November 04, 2007

Superior Orders

Over at TPM Muckraker, I was reading the comments to the post about Mukasey and waterboarding. On the subject of wether CIA operatives who actually performed water boarding would be in legal jeorpordy , a reader by the name of phred asked:

I was under the impression that the argument that one was "only following orders" did not fly at Nuremburg. Why is it tolerated here?

I referred him to the judgement in the Einsatzgruppen Case where the superior orders defense is dealt with. Briefly, the superior orders defense is an allowable defense, but the tribunal rejected it. In the judgement, the tribunal lays out that in order for a superior orders defense to succeed, the defendents must show that they had excusable ignorance that the acts were illegal, or that the act was committed under duress. That is, in failing to act the perpetrator will incur serious consequences that will be "immient, real and inevitable." The second is easier to dispose of: there was no evidence that any Einsatzkommandos would have been threatened with death if they failed to act. The first part, excusable ignorance, is a little more complicated. The tribunal allows for the fact that by the time the acts had occurred, there had been nearly 20 years of Nazi propaganda on how the Jews were sub-human and there elimination was necessary. After all that, would it be possible that rank and file Einsatazkommandos actually belive it was perfectly legal to kill Jews? The tribunal rejected that. The order to exterminate Jews was not absolute. Many German Jews were allowed to live out the war (see for example Viktor Klemperer, a WWI veteran and married to a non-Jew). Aryan looking Jewish children were adopted by German families. Thus the Einsatzkommandos should have know the order to exterminate was not absolute.

Would a defense of superior orders be available to CIA operatives who performed the water boarding? I find extremely unlikely they could say it was done under duress. There is no way the consequences of refusing to torture would be any thing like the torture itself. On the "excusalbe ignorance" part, I think they might have a possible defense. My belief is that water boarding is self evidently torture and thus illegal. But there is certainly enough chaff being thrown around, by the vice president and attroney general nominee among others, that a reasonable person may believe it's not. And I don't mean a reasonable person who reads liberal blogs, I mean a reasonable person who works for the CIA. For arguments sake, let's assume that such people exist. According to this post by Jack Balkin, the Detainee Treatment Act and Military Commissions Act effectively immunize operatives who perform torture. The actual text in the Detainee Treatment Act says:

[... I]t shall be a defense that such 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. 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.

So if the operatives acted in good faith based on Office of Legal Counsel's opinion that water boarding is not torture, they could use that as a defense. Although I find it highly unlikely that any operative will go on trial, I believe that this would give them enough reasonable doubt to escape conviction.

Disclaimer: I'm not a lawyer, and have no legal training. Take my legal opinions for what they're worth.

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