My friend (and resident international law guru) Tony Arend notes a Harper's report that President Bush's so-called torture lawyers -- University of California law professor John Yoo, former Department of Defense general counsel William J. Haynes II (now a lawyer working for Chevron), former vice presidential chief-of-staff David Addington, former attorney general and White House counsel Alberto Gonzales, former Assistant Attorney General Jay Bybee, now a judge of the United States Court of Appeals for the Ninth Circuit, and former Undersecretary of Defense Doug Feith -- are being investigated by crusading Spanish judge Baltasar Garzón, who gained international notice for his efforts to bring former Chilean dictator Augusto Pinochet to justice before a Spanish court.
Some prominent bloggers have praised the investigation. Andrew Sullivan writes, for example, that:
The case may well be strengthened by the DOJ's own internal review of the Yoo and Bybee and Bradbury "legal" opinions, which were transparently abuses of the law to allow Cheney to get on with torturing. Britain is also investigating allegations of torture against Binyam Mohammed, as Greenwald explains here. The Brits seem to have some kind of idea that the West is governned by something called the rule of law - a state of affairs suspended for seven years under Bush and Cheney. The US can hardly complain. Washington invoked the same right to prosecute foreign leaders for torture last year …
The lawyers are the beginning. Bush and Cheney are - and must be - the ultimate targets. They belong in jail. And there are no statutes of limitations on war crimes.
Even though I strongly and frequently criticized the Bush torture policies, I think the investigation of Yoo et al. is problematic.
In the first place, we have to be very careful about allowing lawyers to be held liable for advice given clients.
The rules of legal ethics demand that counsel represent the client zealously. They also mandate that lawyers make their services available to unpopular causes. A lawyer with skin in the game is inevitably compromised in his ability to carry out these obligations.
If Andrew were on trial for murder, he would want his lawyer to be concerned with Andrew's best interests. He would not want his lawyer worrying about personal liability for the tactics or recommendations he makes. An advocate worried about his own skin cannot be a zealous advocate for his client.
To be sure, there are limits. The Harpers report, for example, cites a Nuremburg precedent that "established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law."
As Tony Arend notes, however, applying that standard to these facts will be most difficult:
It would, of course, be necessary to take each of the individual memos (and other sources of legal advice) and review the specific legal assertions contained in them. Based on my knowledge of some of the memos, I think there would be a spectrum of legal claims, ranging from unproblematic legal conclusions to arguable proposition to conclusions that seem nearly bogus on their face. Would some of those propositions in that later category be egregious enough to justify criminal (or civil, for that matter) liability? We shall see.
A useful analogy here may be the Lynne Stewart case, in which the government was obliged to prove that "Stewart knew she was providing resources to carry out a specific violent crime." Only if the evidence shows an intent to facilitate specific illegal conduct should a lawyer face liability for how he/she represents a client.
In the second place, I have concerns about the use of universal jurisdiction here. Spain is claiming jurisdiction to investigate and, if warranted, try US nationals for conduct committed in the US and which impacted, as far as I can tell, on 5 Spanish nationals for conduct they allegedly committed outside Spain. Because Spain's ties to the conduct are so tenuous, Garzon is relying on the legal principle of universal jurisdiction:
Universal jurisdiction or universality principle is a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens - that certain international law obligations are binding on all states and cannot be modified by treaty.
Universal jurisdiction raises several concerns when extended to these kinds of cases, as opposed to piracy and the similar crimes it was originally developed to deal with. Piracy and terrorism often involve non-state actors whose conduct occurs at sea or in failed states or with the aid of state sponsors. Absent some form of universal jurisdiction, there is no chance of punishing and deterring such crimes.
In contrast, here we are dealing with state actors. Applying universal jurisdiction here raises a number of concerns.
First, do we really want a lone national judge in one state interfering with issues of global diplomacy? Suppose the UN worked out a deal for Sudanese President Omar al-Bashir to step down and be replaced by a democratically chosen civilian. As part of the deal, the UN and the ICC agreed to drop al-Bashir's indictment for war crimes and crimes against humanity. Just as al-Bashir is about to leave Sudan, however, Garzón indicts him in Spain for the same charges. The diplomatic apple cart all too easily could be upset by a rogue jurist.
Second, there is a serious risk of politicization of claims premised on universal jurisdiction. Do you want a far left judge backed by an anti-American regime being able to pursue a political agenda against US state actors? Conversely, do you want a neo-fascist judge backed by a far right regime going after Israeli officials who conduct West Bank settlement policy (which, after all, is arguably at least as egregious a violation of international law as anything John Yoo did)?
I think a case can be made for restricting invocation of universal jurisdiction by individual states to cases like piracy, while restricting its use in cases like this one to multi-state international courts, such as the ICC, that are subject to checks and balances so obviously absent in Spain.
It is always tempted to grasp a tool that lies readily at hand and offers short term results. Yet, expediency is all too often the opposite of prudence. The Bush policy on terror was a bad policy. But allowing Garzon to go forward is also a bad policy.
