Addressing U.S. criminal law in his ASIL Insight, Allen:
► Explained the significance of the "reasonable reliance" defense of the common law, codified at Model Penal Code § 2.04(3)(b) and accepted in prior federal criminal law precedents. This defense could protect interrogators who, pursuant to Office of Legal Counsel opinions authorizing their behavior, committed acts amounting to torture under the Convention Against Torture and its domestic implementing statute, and that this possibility may underlie the declaration of President Barack Obama that the United States would not seek to prosecute such interrogators. (Prior IntLawGrrls posts here, here, here, and here.) (photos above right from video of interrogation of then-16-year-old Omar Khadr, detailed here and here)
► Confirmed our own conclusion that Obama's declaration does not shield persons who did not rely on the OLC memos, for the simple reason that they wrote those memos. There is no automatic bar to prosecution of lawyers for conspiracy or aiding and abetting torture, Allen explained. But he warned that any such prosecution "could prove difficult," for it would require proof beyond reasonable to doubt "that the purpose of the lawyer's advice was to facilitate conduct that the lawyer knew to be criminal," and such proof likely would be hard to come by.
Turning then to the international arena, Allen:
► Stated on the one hand that if it were refusing to prosecute "on policy grounds" alone the United States might stand in breach of the obligation under Article 7 of CAT -- which it assumed voluntarily when it ratified that anti-torture treaty in 1994 -- to try or extradite a person said to have committed torture. On the other hand, he argued, there may be no breach if the "reasonable reliance" defense grounds the decision.
Other legal considerations yet may prove pivotal. Thus Allen:
► Cited Common Article 3 of the 1949 Geneva Conventions and the statute implementing them, as well as other U.S. laws proscribing conduct the United States admitted occurred during interrogations. To this could be added the International Covenant on Civil and Political Rights, a treaty to which the United States has been a state party since 1992 and Article 7 of which also unequivocally prohibits subject to "torture or to cruel, inhuman or degrading treatment or punishment."
► Noted the potential for other accountability mechanisms in places like Spain, and concluded by reminding that
apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States.
(The Spanish avenue may face closure, however, as we've posted.)
The Insight underscores that the final chapter in the story of accountability for post-9/11 counterterrorism practices is far from written.