Can Lawyers Be War Criminals?

Georgetown Journal of Legal Ethics, The, Spring 2007 by Markovic, Milan

The Pinochet case demonstrates that even if Yoo and Bybee were correct that, as a matter of domestic U.S. law, torture applies only to the most egregious abusive conduct,157 and that there are defenses for interrogators charged with torture, none of this shields those who violate international norms against torture from liability in foreign courts. In signing the CAT, the United States "assented to the imposition of an obligation on foreign national courts to take and exercise criminal jurisdiction in respect of the official use of torture."158 A foreign court would therefore be free to make its own judgment about where the line between torture and cruel, inhuman, and degrading treatment lies and whether it has in fact been crossed. A foreign court would certainly question the claim made by Yoo and Bybee that international law does not view interrogation techniques like wall standing, hooding, subjection to noise, sleep deprivation, and deprivation of food and water as torture.159 It would similarly question the notion that an act is not torture if it is motivated by the desire to obtain information. Given that there recently has been a great deal of international law on the CAT-all of which was utterly ignored by Yoo and Bybee-a court might conclude that their analysis was conducted in bad faith and that Yoo and Bybee wished to see detainees tortured for the sole purpose of obtaining valuable information. American lawyers are not solely responsible for complying with American law, and they should expect that their actions that have an impact abroad would be inquired into by foreign courts.

Yoo and Bybee could be prosecuted under 18 U.S.C. § 2340(C) for conspiracy in torture and perhaps even for war crimes under 18 U.S.C. § 2441.16° Domestic prosecution would involve many of the same issues that have been discussed in the context of international trials. To Yoo and Bybeehe, the prospect of a domestic investigation, let alone prosecution, is probably too remote to consider. Yoo and Bybee should not take much solace, however. For, as this Essay has proven, the ICC and individual state-parties to the CAT could attempt to hold them responsible for their role in the abuse, mistreatment, and torture of detainees captured and interrogated in the War on Terror. American lawyers like Yoo and Bybee who have contributed to or who continue to contribute to the commission of war crimes against detainees need not fear prosecution only so long as they remain within United States.

CONCLUSION

The prohibitions against torture and cruel, inhuman, or degrading treatment are among the most fundamental legal principles of the international community that cannot and should not be evaded.161 When lawyers seek to undermine or flout these prohibitions, as this Essay has attempted to show, they can be held accountable.

As flawed as the legal reasoning of the Torture Memo was, it is the context in which the Memo was written that makes it arguably criminal. Yoo and Bybee knew that their work would be used as a guide to develop detainee interrogation procedures. In spite of this knowledge, they produced a Memo that authorized the brutalization of detainees, narrowed the prohibition against torture, and suggested that an interrogator who tortures for the purpose of eliciting information that might be useful to fight the War on Terror lacks the specific intent required for their actions to constitute torture. Yoo and Bybee also argued that interrogators accused of torture had viable defenses in the event of prosecution. At a minimum, Yoo and Bybee were reckless as to the commission of acts of torture and appeared to outright encourage the cruel, inhuman, or degrading treatment of detainees by U.S. interrogators. Without their work, the Bush Administration would not have felt legally entitled to adopt harsh new interogation procedures. As the trials in post-World War II Germany clearly indicate, there are some things lawyers should refuse to do for their clients, and when lawyers are involved in the persecution and mistreatment of others, they can be held legally accountable.