Are Even Torturers Immune from Suit?: How Attorney General Opinions Shield Government Employees from Civil Litigation and Criminal Prosecution
62 Pages Posted: 17 Apr 2008
Date Written: 2008
The Attorney General, or the Office of Legal Counsel (as the Attorney General's designee), issues formal written guidance, known as an Attorney General opinion, in response to legal queries from federal government agencies. These opinions are considered binding on all government employees. Two recent Attorney General opinions have sparked considerable controversy. One opinion provided an extremely high threshold for a government activity to constitute "torture," while the other authorized an "alternative set of procedures" for the Central Intelligence Agency to utilize on high-value terrorists it had detained. Civil lawsuits have been filed regarding the matters contained in these Attorney General opinions. Some critics are clamoring for criminal prosecutions. This Article analyzes the legal protection that such Attorney General opinions provide for federal government employees who take action in reliance upon them. The Article concludes that current law completely shields government employees from both civil liability and criminal prosecution in virtually every circumstance. Such a result is appropriate. Legitimate concerns exist about flawed Attorney General opinions, as well as the possible negative impact immunity will have on government employee performance and activity. However, these concerns prove to be overstated when removed from the rhetoric. More importantly, Attorney General opinions constitute complex, binding guidance issued by the highest legal advisor in the executive branch. If such guidance proves to be incorrect, it is the federal government, not the individual government employee, who should be held responsible.
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