While reviewing an old edition of Trial, I found an interesting docket summary. It relates to non-client liability for counsel negligence.

This got me thinking about the POW abuse issues, and a possible litigation strategy which the US government does not appear to want to confront.
What I'll do is present the general idea, and let you read the article on your own. After you've had some time to think about it, I'll post some details.

Trial is the journal of the American Association for Justice. You'll want to find the May 2009 issue, and look on page 17 for the article, "Nonclient can sue lawyer for misrepresentation, Colorado court rules"

One key phrase in one of the cited cases: "An attorney who issues an opinion letter"

As you read the details, keep the following in mind:

• Attorneys are regulated, licensed, disciplined, and disbarred (prevented from practicing law, their livlihood)  at the state level;
• The US government is arguing, in part, that the CIA agents and DOJ OLC lawyers should be either immunized on FISA violations and/or POW abuses and/or legal opinions;
• A criminal trial over war crimes is different than civil litigation
• If someone loses a civil lawsuit and has to pay monetary damages, they may be able to find someone with deeper pockets who contributed to that negligence, and shift (some of) the financial burden for the original civil lawsuit.
• Geneva Conentions bar all abuse against POWs
• The Nuremberg trials prosecfuted legal counsel and judges for their complicity with Geneva violations, and failure to enforce Geneva violations
• When one group violates Geneva, it is permissible -- as an act of retaliation or reciprocity -- for the the opposing side to violate the same provisions. This ensures the combatants know there are potentially immediate battlefield consequences for illegal activity.
  
• If someone has a solid legal defense, or legal memoranda absolutely defending what they are doing, they need to explain -- despite that supposed "guarantee" -- why they destroyed evidence of the supposed "OK" action

Let's talk about what appears to be happening with the DOJ OLC legal memos: Supposedly, the CIA agents and Vice President Cheney are arguing that the CIA "reasonably" relied on the memos. If that is true, then reconsider that claim in light of the cited Trial article: If that reliance was, as they argue, "reasonable," then the liability, in concert with the liability -- between non-clients and legal counsel -- should mean if there was negligence in the DOJ OLC memos, the CIA agents should have nothing to worry about.

The problem appears to be that the US government really doesn't want the case to proceed because the lawyers possibly believe that they're stuck:

A. If the former DOJ OLC lawyers who authored the memos argue that they "did their best," then the Trial article suggests this is irrelevant; and that the DOJ OLC lawyers might be sued for negligence. . . not just by the US government (not likely), but by even "non clients" who relied on those memos. This means that the CIA agents and others claiming this reliance must prove the relied on the memo; and made an error that they would not have otherwise made.

B. If the DOJ OLC lawyers argue the memos were valid, then they have to discuss why they did not include -- within the disclosed memos, as an excuse to justify the abuse through retaliation  -- evidence that the Taliban or AlQueda or people in Iraq engaged in original violations, prompting the US reaction against prisoners. However, if they argue this, DOJ OLC legal counsel are stuck because they cited no original violations of Geneva that the US government was reacting to. Rather, DOJ OLC focused on a legal theory. This means that the DOJ OLC lawyers knew or should have known that they were ignoring Geneva, not pointing to an original violation . . . then revisit the Trial article.

My concern is the US government -- by prohibiting lawsuits against the telecoms, US government, CIA agents, or DOJ OLC lawyers on issues of Geneva or FISA violations -- are taking the legal issues out of the courtroom. Geneva, in this case, would authorize -- in response to the US refusal to accept the dispute to a court for prosecution or civil litigation -- combat solutions.

The risk is that if DOJ OLC legal counsel want to press the weak leagl argument, and convince the US government not to allow any prosecution or civil litigation on any of the legal issues, then foreing powers might conclude -- through the principle of reciprocity -- that the legal counsel are possible legitimate military targets. Recall, Nuremberg said legal counsel were instrumental in that war fighting effort.

Rather than prohibiting lawsuits against the CIA for abuse or telecoms for FISA violations, why note let the damaged defendants -- CIA agents -- go after the lawyers through the non-client principle outlined in Trial?

The question is: What incentive, if any, is the US government giving to CIA agents for them not to sue the DOJ OLC legal counsel as non-clients?

If there is no court action, foreign powers might use deadly force. DOJ OLC's problem is that they didn not rely on retaliation or reciprocity within Geneva, but ignored Geneva. . . consistent with the negiligence issues raised in the Trial article.