The recent decision by the International Criminal Court (ICC) to authorize Prosecutor Fatou Bensouda to investigate alleged war crimes in Afghanistan includes allegations that U.S. personnel committed torture when interrogating prisoners there and in other ICC member countries. The prosecutor has identified the potential defendants as CIA and Department of Defense (DOD) officials who devised, authorized, or oversaw the interrogations. Whether those officials are ultimately charged will likely turn on whether they had the required criminal intent or whether they justifiably relied in good faith on assurances by the Justice Department that the so-called “enhanced interrogation techniques” they participated in were lawful.

Article 30 of the ICC’s Rome Statute requires that the defendant had the mental state of intent and knowledge. Article 32 acknowledges that some mistakes of law may negate that mental state. Therefore, U.S. personnel who relied on the Department of Justice’s (DOJ’s) legal advice may not be criminally responsible even if that advice turned out to be wrong.

This notion of reliance in good faith to negate criminal responsibility is not new. The U.S. Detainee Treatment Act of 2005, adopted by a vote of 90-9 in the Senate, provides that:

it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.

In 2009, President Barack Obama said that “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” Attorney General Eric Holder later affirmed that “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” And the Senate’s May 2018 confirmation of Gina Haspel as CIA director was an implicit endorsement of her explanation that “CIA personnel involved with the detention and interrogation program relied on … legal guidance, and adhered to it in good faith.”

CIA Reliance on Legal Guidance

When CIA Director George Tenet was first presented with a proposal to use enhanced interrogation techniques in April 2002, he did what international humanitarian law wants a superior to do: he asked if it was legal. Despite intense pressure to prevent a second attack on the United States after 9/11, Tenet waited four months for DOJ to answer that question. He authorized the use of proposed interrogation techniques only after he was assured that they were legal. During the next two years, whenever any doubt was raised over the legality of those techniques, Tenet said the CIA would not continue using the techniques unless DOJ found them to be legal. In each instance, DOJ affirmed the techniques’ legality.

The original advice of DOJ attorneys John Yoo and Jay Bybee that the techniques were legal was reaffirmed, in one form or another, throughout Tenet’s tenure by DOJ attorneys Jack Goldsmith, Daniel Levin and Steven Bradbury, and consistently supported by Attorney General John Ashcroft. Ashcroft briefed Vice President Dick Cheney, National Security Advisor Condoleezza Rice, Secretary of Defense Donald Rumsfeld, and Secretary of State Colin Powell. They endorsed the techniques. President George W. Bush wrote in his book that he, too, approved the interrogation techniques.

Of course, a defendant cannot claim to have relied on DOJ advice if he knew DOJ was misled or if he authorized or condoned interrogation techniques materially different than those approved by DOJ. The Senate Intelligence Committee’s 2014 report claims that the CIA’s use of enhanced interrogation techniques in the field diverged from what the CIA requested to use and later reported to DOJ. To overcome the defense of good faith reliance on DOJ opinions, the ICC prosecutor will have to examine such claims as to each potential defendant, as well as whether the acts known to that defendant were so egregious that a person of ordinary sense and understanding would know the practices were unlawful, despite the legal advice.

Not Yet Tested at the ICC

Although good faith reliance on advice of counsel is a well-established defense in American criminal law, it has not yet been tested at the ICC. The advice at issue in the Afghanistan investigation context was that the enhanced interrogation techniques should not result in the infliction of severe pain. The ICC statute’s accompanying list of elements of crimes provides that it is not necessary for the prosecution to prove that the perpetrator intended that the pain would be severe. However, the ICC will likely not be prosecuting the actual persons who inflicted the pain, but rather higher-level officials. So any prosecution of top officials would have to be brought under a theory of co-perpetration, which requires that the remote defendant had to be aware that his conduct would bring about the elements of the war crime of torture, which includes the infliction of severe pain.

Now that the Appeals Chamber has settled the question of jurisdiction, the criminal intent issue appears to be the ICC prosecutor’s greatest obstacle in bringing charges against U.S. personnel.

The ICC also has a requirement to ensure that it is the court of last resort (admissibility). It can only bring charges where national authorities are unwilling or unable to prosecute the case themselves (complementarity) and where the crimes are sufficiently important (gravity). Since the United States has decided not to prosecute those who devised, authorized, or oversaw the interrogations, the defendants cannot benefit from complementarity. And the ICC’s bar for gravity has been set very low in the recent Appeals Chamber decision in the Al Hassan case, likely dooming the argument that the number of torture victims is too few for the ICC.

Bensouda already has shown her willingness to assign some of her limited resources to investigating those crimes. Having devoted those resources, she or her successor would not, in the end, decline to bring charges against U.S. personnel simply for fear of alienating the United States and its allies or because the defendants may not be easily arrested. While U.S. nationals accused at the ICC may never be arrested unless they travel to an ICC member country, threats and bluster by a U.S. administration will not deter the prosecutor from seeking an arrest warrant. It also is unlikely that the fractured United Nations Security Council will bail out the United States by ordering the Afghanistan investigation be deferred, as it has the power to do under Article 16 of the ICC Statute, or outright ban prosecution of non-party nationals, as proposed by Senator Ted Cruz.

Instead, if charges are not brought at the ICC, it will likely be based on the inability to establish the criminal intent of those U.S. officials most responsible for the enhanced interrogation techniques.

IMAGE: (L-R) David Addington, Chief of Staff and former counsel to Vice President Dick Cheney, former Department of Justice official John Yoo and Chris Schroeder, former acting assistant Attorney General in charge of the Justice Department Office of Legal Counsel testify before the House Judiciary committee during a hearing on the administration’s interrogation policy on June 26, 2008 in Washington, DC. The committee was seeking specifics about a controversial 2002 Department of Justice memo regarding interrogation techniques. (Photo by Melissa Golden/Getty Images)