The “Non-Career Law Clerk” commented on my post about the German cook who may be prosecuted for allegedly being an accomplice to the murders at Auschwitz. Condensed and summarized, the clerk argued that if the poor bastard in Germany can be sent to the slammer 60 plus years after the fact when the cook is old and infirm, then a cook at Gitmo could suffer the same fate if 60 years from now our practices there are found to have violated international norms on torture.
Here’s my take:
*If I were a young German lawyer, I would want to defend the cook. What follows is my defense strategy in several parts.
*First, I would stress that the cook never intended to join the illegal enterprise or assist in the commission of the murders. I would argue (using standard criminal precepts) that the cook has no liability because merely associating with someone who commits an illegal act is not enough. I would posit that the government must prove that the cook specifically intended to further the illegal scheme and consequent murders.
*Second, I would argue that the cook can have no liability because his conduct (cooking) did not materially assist the commission of the illegal acts or make the scheme more likely to succeed. That is, everyone eats and even if there were no cooks, the perpetrators of the murders would have fed themselves and committed the illegal acts anyway. Because there was no material assistance, there is no derivative liability. Again, this theory would be developed from standard legal principles.
*I do not know how Germany deals with the “intent” and “materiality” components of derivative criminal liability discussed above. That said, if German law disregards these basic principles, I would argue that Germany’s law violates basic human rights (due process) because it imposes what amounts to a civil regulatory scheme (strict liability) in a criminal proceeding where the loss of liberty is at stake.
*As for our cooks at Gitmo, the same sort of defenses would apply and then some. The prosecutor in the Gitmo hypothetical would have to get over a big additional hurdle. That is, whether the Convention on torture protects non-state actors held in captivity rather than soldiers held in prisoner-of-war camps. I would point on that the rule of lenity requires a finding that my client is not guilty because at the time the acts were committed the Convention on torture did not clearly anticipate that it would be applied to soldiers and their cooks holding non-state actors.
*Additionally, the Gitmo cook would have the additional defense that he did not know at the time that the specific acts deemed torturous by international standards were in fact wrong or illegal. It is one thing to hold a cook strictly accountable for feeding guards who daily gas thousands of civilians in huge, oily furnaces, and quite a different thing to hold a cook strictly accountable for a criminal offense because another soldier put a terrorist in a stress position. I would add that in some cases (and this is one of them) the law has always required that where the legal code is unusually complex and therefore uncertain (the meaning of “torture”), the government is required to prove not only that the accused committed the act but that he subjectively knew he was violating the law. (E.g., some federal criminal tax cases.)
So, there you have it. Thoughts please!