Can CIA Interrogators Relying Upon Government Counsel Advice be Prosecuted for Torture?
In the spring of 2002, the CIA sought advice from the Office of Legal Counsel (OLC) regarding an interrogation program for high-level al Qaeda detainees. The proposed program included the use of techniques such as walling, stress positions, confinement, sleep deprivation and waterboarding. On August 1, 2002, the OLC provided two memoranda of advice to the CIA on the lawfulness of the proposed program and the specific techniques intended. The OLC advised that the program and the techniques were lawful and did not constitute torture within the meaning of the Torture Statute, 18 U.S.C. §§2340–2340A. This article considers whether interrogators who used these techniques can be prosecuted for torture. Specifically, the article considers whether reliance upon the advice constitutes a legal defense to a charge of torture, whether the Department of Justice is now estopped from prosecuting, and whether the Department should prosecute as a matter of policy, even if it can.
