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• Thursday, January 8, 2009 11:56 AM

  Why the OLC matters

  [Glenn, from the post]: As Salon notes today, human rights groups have documented that close to 100 detainees have died in U.S. custody (.pdf) as part of the "war on terror," while "at least three dozen people believed to have been held in secret remain unaccounted for, their fate and whereabouts unknown." Yet "following orders" and "did-it-with-patriotism" are sufficient to render them immune.

  The more refined 'argument' is that they lacked scienter; that they relied on legal advice that stated that what they were doing was legal.

  The "legal advice" defence really doesn't exist (except in the very limited sense of malum prohibitum crimes, chiefly financial and/or regulatory, where an intent to knowingly violate the law is an element of the crime).

  Nonetheless, there has been the argument made, by such as AG Mukasey (as I've pointed out on my blog), that OLC,/b> advice, no matter how misguided, has a precedential power and confers some 'immunity' from prosecution for reliance on such. Even such as Prof. Marty Lederman has suggested (I think) that OLC advice does hold a special place above that of ordinary legal advice. I think this is wrong, but I'm just a lone blogger. Others have said that it's difficult even to turn OLC opinions around going forward, much less to prosecute those that have relied on such.

  But that's just in the U.S. judicial system and under U.S. law.

  In international law, I doubt that OLC (and in particular, Dubya's OLC) will hold much persuasive weight. And I'd recommend that even such as Yoo, the author of the execrable CYA opinions, look a bit closed at Alstotter.

  Cheers,

  —Arne Langsetmo Read Arne Langsetmo's other letters
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