Impeachment for Supposed War Crimes
Parry at LAW.PITT.EDU
Mon Nov 26 11:18:12 PST 2001
The reliance defense (sometimes also called entrapment by estoppel) requires
actual AND reasonable reliance (eg, MPC 2.04(3)(b)(iv); US v. PICCO, 411 US
655 (1973) (discussing the due process version of the defense)). Lynne's
hypotheticals suggest unreasonable reliance, while Bill's hypothetical
suggests reasonable reliance.
Lynne's hypos make the point that there would be circumstances in which an
AG opinion would be no defense to a war crimes prosecution: perhaps an order
to firebomb an entire Afghan city because Osama bin Laden is in there
somewhere. As to impeachment, the reliance defense is a complete defense to
an impeachment conviction on war crimes, regardless of reasonableness, if
the Senate thinks so.
In the shameless plug department, see Culpability, Mistake, and Official
Interpretations of Law, 25 Am. J. Crim. L. 1 (1997).
From: Lynne Henderson [mailto:hendersl at IX.NETCOM.COM]
Sent: Wednesday, November 21, 2001 7:22 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Impeachment for Supposed War Crimes
I must demur that reliance even on an opinion from the Attorney General
would be a conclusive defense. If the AG issued an opinion that it was OK to
discriminate against someone because she is Black, that would not make
discrimination legal; if the AG said "you are President and above the law"
, that would not be a defense, either. "Ignorance of the law is no excuse"
and reliance on an official interpretation is iffy. Cf.U.S. v. Barker, the
Watergate burglar case; it is hopelessly muddled, but the Watergate
burglars argued that they had relied on officials and therefore were not
culpable. The opinion is hopelessly muddled on whether there was a mistake
of fact, a mistake of law, or what, but it's a great case to teach. . .
Happy thanksgiving to all
on 11/21/01 3:21 PM, Bill Funk at funk at LCLARK.EDU wrote:
> Professors Volokh and Martin may argue whether the tribunal could be or
> necessarily would be violative of the Geneva Convention. This is an
> academic argument in the extreme (which should not be considered a
> criticism of it), because even those who oppose the tribunal would never
> suggest that it would be an impeachable offense via the War Crimes Act
> importing the Geneva Convention. Moreover, the President would have a
> due process defense against any criminal prosecution for violation of
> the War Crimes Act. That is, it is hornbook constitutional law that the
> government may not prosecute someone for an act that the responsible law
> enforcement official has assured the person is lawful. See, e.g., Raley
> v. Ohio, 360 U.S. 423 (1959). Here, the Attorney General has rendered a
> formal legal opinion to the President that the tribunal is lawful (or at
> least I presume that was done, because it is standard practice for all
> executive orders).
> Bill Funk
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