The wrongheaded and dangerous campaign to criminalize good faith legal advice.

• Author: Ku, Julian

I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrongheaded because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys' constitutional rights under the U.S. Constitution's First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

1. INTRODUCTION

   It is hardly unusual for a U.S. President or for a U.S. administration to be charged with committing war crimes. President Franklin Roosevelt was accused of violating the Neutrality Act in order to incite a war with Germany. (1) President Harry Truman's decision to use the atomic bomb in Japan has been called a war crime so many times it is hardly worth documenting. (2) Presidents Johnson and Nixon were pilloried over their Vietnam War and Cambodia military plans. (3) More recently, critics have brought out the "war crime" accusation against President Bush's military action in the Gulf War and Panama, (4) and President Clinton's bombings of Kosovo. (5) One only has to review the list of charges drawn up by former U.S. Attorney General Ramsey Clark over the years to get a flavor of these types of charges. (6)

   The most recent wave of war crimes accusations against the George W. Bush administration is different. But the difference lies mostly in the near obsessive focus of the accusers on the legal advice of Bush Administration lawyers. (7) As the papers to this symposium demonstrate, it is likely that a majority of international lawyers and scholars reject the legal interpretations adopted by the Bush Administration in the pursuit of the war on terrorism, most especially the widely condemned "torture memos." (8) But many have gone farther than simply arguing that the legal advice was wrong. A number of scholars and advocates have argued for, indeed demanded, a criminal prosecution of such lawyers for giving their legal advice. (9)

   I agree that the so-called "torture memos" drew a standard that was too loose, and I believe (with the benefit of hindsight) that I would have written an opinion more limiting of interrogation techniques than the one that was written. But to me, my disagreement with the legal analysis of the memos on interrogation policy is very different from stating that I believe the lawyers who gave that advice should be held criminally liable solely for their legal advice.

   Indeed, in this short essay, I will argue that this increasingly fervent insistence on criminal punishment of the Bush lawyers for their legal advice is both wrong-headed and dangerous. It is wrong-headed because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) violations of those attorneys' constitutional rights under the U.S. Constitution's First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

2. THE EXTREMELY WEAK CASE FOR PROSECUTING THE BUSH LAWYERS

   It is not surprising that legal academics are generally critical of attempts to prosecute attorneys, especially for giving legal advice. In contexts other than U.S. government interrogation policies, scholars have generally criticized overzealous prosecutions of criminal defense lawyers and securities lawyers on the grounds that such prosecutions chill the ability to give legal advice and legal advocacy more generally. (10)

   What is surprising is the willingness of many scholars to entertain, or advocate for, criminal prosecution of the Bush lawyers. Legal scholars have relentlessly criticized the "torture memos," not to mention the legal advice undergirding the Bush Administration's policies on the war on terrorism more generally. But the attention on the legal advice is almost unprecedented.

   There is only one plausible theory by which the Bush attorneys may be criminally liable for their legal advice: aiding and abetting the act of torture as defined under U.S. law and under international law. (11) There is no evidence that the Bush lawyers in any way participated in the alleged interrogations, so there can be no question of actually punishing them directly under the statute or international treaties prohibiting torture.

   There are two relevant sets of laws that might be invoked to prosecute the Bush lawyers. First, under U.S. law, torture is a federal crime prohibited by 18 U.S.C. [section] 2430A, which itself implements U.S. obligations under the Convention Against Torture. (12) A person may then be held liable for aiding and abetting any federal crime under 18 U.S.C. [section] 2430A. Second, international law also directly criminalizes torture. The Rome Statute of the International Criminal Court, for instance, permits prosecution for crimes against humanity and war crimes, both of which have been understood to...