Department of Justice Opinions Should Not Be A Veil For Impunity

By Andrew Benfield
Senior Desk Officer, North America

WASHINGTON, United States – Early in February, CIA Director Michael Hayden released a statement that questioned the legality of the waterboarding torture method.  These torture questions were released a day after Attorney General Michael Mukasey announced that the Justice Department would not investigate waterboarding techniques used by United States interrogators following 11 September 2008. 

Jordan Paust of University of Houston Law Center and contributing editor of JURIST, has questioned Mukasey’s decision not to investigate waterboard interrogation.  Paust argues that the United States Department of Justice Office of Legal Counsel’s opinions are “inconsistent with or violative of” the laws of war.  These opinions should not provide any “legal cover” for members of the executive branch who seek “impunity for alleged war crimes.” 

Specifically, Paust takes issue with the Attorney General’s waterboarding justification.  Mukasey stated, a CIA program was the subject of a “Department of Justice opinion” and was found to be “permissible.”  Paust argues that a Department of Justice opinion may never authorize the executive branch to circumvent international law. 

Citing judicial precedent dating back to the early 1800s, Paust demonstrates that the Office of Legal Counsel’s (OLC) opinions “simply cannot authorize conduct that, on its face, is criminal under international law.” 

Paust urges an investigation into the United States’ involvement in “war crimes liability” and executive branch accountability without the “veil” of the Office of Legal Counsel opinions. 

In the last seven years, no person of any nationality or status has been prosecuted for a war crime related activity. 

For more information, please see:

JURIST – Just Following Orders? DOJ Opinions and War Crimes Liability – February 2008

Associated Press – CIA Boss: Waterboarding May Be Illegal – 7 February 2008

Think Progress – Hayden: waterboarding may be illegal – 7 February 2008