Revelations of torture and sexual humiliation at Abu Ghraib erupted into the news media at the end of April in 2004, when reporter Seymour Hersh exposed the scandal in The New Yorker magazine and CBS News broadcast the notorious photographs.
Five weeks later, with the scandal still at the center of media attention, the Wall Street Journal and Washington Post broke the story of the Bybee Memorandum - the secret “torture memo,” written by elite lawyers in the US Department of Justice’s Office of Legal Counsel (OLC), which legitimized all but the most extreme techniques of torture, planned out possible criminal defenses to charges of torture, and argued that if the President orders torture it would be unconstitutional to enforce criminal prohibitions against the agents who carry out his commands.
(The memo, written to then White House counsel Alberto Gonzales, went out over the signature of OLC head Jay S. Bybee, but apparently much of it was drafted by John Yoo, a law professor working in the OLC at the time. Before the Abu Ghraib revelations, Bybee left OLC to become a federal judge, and Yoo returned to the academy.)Soon after, more documents about the treatment of War on Terror detainees were released or leaked - a stunning and suffocating cascade of paper that has not stopped, even after two years. When Cambridge University Press published The Torture Papers a scant six months after the exposure of the Bybee Memo, it included over 1,000 pages of documents.[294] Even so, The Torture Papers was already out of date when it was published. For that matter, so was a follow-up volume published a year later.[295] No doubt a third volume, collected now (November 2006), would also be outdated by the time it was distributed. The reason is simple: the lawyers continue to lawyer away.
In the last chapter, I offered an argument about the jurisprudential and ethical importance of lawyers giving candid, independent advice about the law. This chapter will provide a case study of moral failure. The chapter will help us address some questions left over from the last - questions such as: (1) What does candid, independent advice entail? (2) Given a contentious legal issue, how much leeway does the candid advisor have to slant the law in the client’s direction? (3) What is the difference between illicitly slanted advice and advice that is merely wrong?
But in setting out these questions, I don’t mean to gloss over the most basic reason for writing about the torture lawyers in a book about legal ethics and human dignity.
Torture is among the most fundamental affronts to human dignity, and hardly anything lawyers might do assaults human dignity more drastically than providing legal cover for torture and degradation. We would have to go back to the darkest days of World War II, when Hitler’s lawyers laid the legal groundwork for the murder of Soviet POWs and the forced disappearance of political suspects, to find comparably heartless use of legal technicalities (and, as Scott Horton has demonstrated, the legal arguments turn out to be uncomfortably similar to those used by Bush Administration lawyers3). The most basic question, then, is whether the torture lawyers were simply doing what lawyers are supposed to do. If so, then so much for the idea that the lawyer’s role has any inherent connection with human dignity.If the law clearly and explicitly permitted or required torture, legal advisors would face a terrible crisis of conscience, forced to choose between resigning, lying to their client about the law, or candidly counseling that the law permits torture. But that was not the torture lawyers’ dilemma. Faced with unequivocal legal prohibitions on torture, they had to loophole shamelessly to evade the prohibitions, and they evaded the prohibitions because that was the advice their clients wanted to receive. With only a few exceptions, the torture memos were disingenuous as legal analysis, and in places they were absurd. The fact that their authors include some of the finest intellects in the legal profession makes it worse, because their legal talent rules out any whiff of the “empty head, pure heart” defense. Possibly they believed that, confronted by terrorists, morality actually required them to evade the
falls short of torture, official correspondence surrounding these and other issues, or the responses offered by the US government to the UN’s Committee Against Torture in May 2006. Nor does it contain major US legislation enacted while the book was in press, such as the Detainee Treatment Act of 2005; and the Military Commissions Act of 2006.
3 Scott Horton, Through a Mirror, Darkly: Applying the Geneva Conventions to “A New Kind of Warfare,” in The Torture Debate, supra note 2, at 136-50. prohibitions on torture, a position frankly defended by some commentators.4 But the torture lawyers never admitted anything of the sort. Professor Yoo, for example, continues to maintain the pretense of lawyering as usual, and flatly denies that he was offering morally motivated advice.5 The issue, then, is not whether lawyers may deceive their clients about the law in order to manipulate the clients into doing the right thing by the lawyer's lights. Although that is an interesting and important question, the torture memoranda raise a different one: whether lawyers may spin their legal advice because they know spun advice is what their clients want.6
To grasp just how spun the advice was, it will be necessary to dwell on legal details to a greater extent than in other chapters in this book,
4 See, e.g., Charles Krauthammer, It's Time to Be Honest About Doing Terrible Things, The Weekly Standard, December 5, 2005; David Gelernter, When Torture Is the Only Option, L.A. Times, November 11, 2005; Jean Bethke Elshtain, Reflections on the Problem of “Dirty Hands,” in Torture: A Collection (Sanford Levinson ed., 2004), at 87-88. In Elshtain’s words, “Far greater moral guilt falls on a person in authority who permits the deaths of hundreds of innocents rather than choosing to ‘torture’ one guilty or complicit person... To condemn outright... coercive interrogation, is to lapse into a legalistic version of pietistic rigorism in which one’s own moral purity is ranked above other goods. This is also a form of moral laziness.” Ibid.
5 In an interview, Professor Yoo said: “At the Justice Department, I think it’s very important not to put in an opinion interpreting a law on what you think the right thing to do is, because I think you don’t want to bias the legal advice with these other considerations.
Otherwise, I think people will question the validity of the legal advice. They’ll say, ‘Well, the reason they reached that result is that they had certain moral views or certain policy goals they wanted to achieve.’ And actually I think at the Justice Department and this office, there’s a long tradition of keeping the law and policy separate. The department is there to interpret the law so that people who make policy know the rules of the game, but you’re not telling them what plays to call, essentially... I don’t feel like lawyers are put on the job to provide moral answers to people when they have to choose what policies to pursue.” Frontline Interview With John Yoo (October 18, 2005), available at. “‘The worst thing you could do, now that people are critical of your views, is to run and hide. I agree with the work I did. I have an obligation to explain it,’ Yoo said from his Berkeley office. ‘I’m one of the few people who is willing to defend decisions I made in government.’” Peter Slevin, Scholar Stands By Earlier Writings Sanctioning Torture, Eavesdropping, Wash. Post, December 26, 2005, A3. Discussing the torture memo, Yoo adds, “The lawyer’s job is to say, ‘This is what the law says, and this is what you can’t do.’” Ibid. In other words, it is lawyering as usual, not unusual lawyering for moral purposes. (Oddly enough, however, when the US Supreme Court rejected Yoo’s argument that the Geneva Conventions do not protect Al Qaeda captives, Professor Yoo complained that “What the court is doing is attempting to suppress creative thinking.” Adam Liptak, The Court Enters The War, Loudly, N.Y. Times, July 2, 2006, section 4, at 1. Obviously, to call arguments “creative thinking” implies legal novelty, the antithesis of the straightforward “this is what the law says” that Yoo had previously used to describe his work.)6 This chapter therefore overlaps with another essay I wrote on torture and the torture lawyers: David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VirginiaL. Rev. 1425 (2005). The latter essay was reprinted in expanded form in The Torture Debate, supra note 2, 35-83. In a few parts of this chapter, I draw on the earlier paper. even though the technicalities are of no lasting interest. The devil lies in the details, and without the details we cannot study the devil. Only the details permit us to discuss the difference between a memo that “gets the law wrong,” but argues within acceptable legal parameters, and one that cannot be understood as anything more than providing political cover for a client’s position. And that is the most fundamental distinction this chapter considers.