What’s wrong with the torture memos?

Frivolity and indeterminacy

Kingman Brewster, asked what his years as a Harvard law professor had taught him, replied, “That every proposition is arguable.”^{[374] [375]}

But not every proposition is arguable well, and not every argument is a good one.

What makes an argument frivolous? Let me approach this question through what is, I hope, a straightforward example (unrelated to the torture memos), drawn from a 1989 case. Sue Vaccaro, a slightly built woman, attempted to use the first-class lavatory while traveling coach class with her husband on a cross­country flight. John Wellington Stephens, a large male first-class passenger, assaulted her. Stephens called her a “chink slut and a whore,” told her she was too dirty to use the first-class washroom, and shoved her against a bulkhead. Vaccaro sued Stephens, and he counterclaimed, asserting that his ticket gave him a license to the first-class lavatory, and Vaccaro had trespassed on it. This harmed him, his counsel argued, because the donnybrook spoiled Stephens’s flight. The judge punished his law firm for frivolous argument, and it may be hard to find a lawyer outside the firm who would disagree. The court of appeals wrote:

To engage in a temper tantrum is not to suffer actual damage at the hands of a tres­passer... Thefederaldistrictcourtisaveryhospitablecourtbutitisnotyethospitableto entertaining law suits against people who have the misfortune to engage in argument with irascible first class passengers... The idea that if you sat in the wrong seat at a symphony, a play, a baseball game or a football game and did not get out instantly when the proper ticket holder appeared you could be sued in a federal court is not an attractive notion.

in making the distinction between the plausible and the silly.

No formula or algorithm exists for sorting out the plausible-but-wrong arguments from the silly, any more than an algorithm can distinguish jokes that are almost funny from jokes that aren’t funny at all. But a theory of frivolity is unnecessary. As the philosopher Sidney Morgenbesser once wrote, to explain why a man slipped on a banana peel you do not need a general theory of slipping.^[376] Legal plausibility is a matter for case-by-case judgment by the interpretive community, and the judgment will be grounded in specific arguments like those the court of appeals offered in Vaccaro v. Stephens and - more to the point - those I have offered here about the “analyses” contained in the torture memos.

Picture a bell curve representing the number of trained lawyers who find any given legal argument plausible. Some arguments are so recognizably mainstream that virtually all lawyers would agree that they are plausible. Those arguments lie under the fat part of the bell curve. Calling an argument plausible doesn’t mean accepting it: readers of judicial opinions often find both the majority and the dissenting arguments plausible, and situate both within the fat part of the bell curve.

Moving further out on the bell curve, we find the kind of arguments that lawyers euphemistically call “creative” (or where one might say, “Nice try!”). Litigators resort to creative arguments when unfavorable law leaves them no better option than the brief-writer’s equivalent of a Hail Mary pass. The argument is too much of a stretch to be genuinely credible, but it offers a novel way to think about the law, and someday the interpretive community might get there.

Frivolous arguments, on the other hand, are far out. Superficially, they make lawyer-like “moves,” but they take such broad liberties with legal text, policy, and sense that only someone far removed from the mainstream would take them seriously. In the definition of federal judge Frank Easterbrook, “99 of 100 practicing lawyers would be 99% sure that the position is untenable, and the other 1% would be 60% sure it’s untenable.”^[377] Easterbrook’s numbers may be too high, and in any case the numerical imagery is only a figure of speech, because nobody is actually out there surveying lawyers.^[378] But the idea should be clear: the legal mainstream defines the concept of plausibility.

It might be objected that legal arguments should be judged on their merits, not on how mainstream lawyers might vote about their merits. Judging arguments by their popularity seems like a category mistake.

That may be true in fields where truths are obscure and only the deep thinkers can discern them. But law is different. Law is not written for geniuses, and it is not written by geniuses. Legal texts are instruments of governance, and as such they must be as obvious and demotic as possible, capable of daily use by millions of people with no time or taste for riddles. Even when great judges with subtle, Promethean minds write opinions, their opinions had better contain no secret teachings, no buried allusions, no symbolism, no allegory, no thematic subtleties that need Harold Bloom or Leo Strauss to tease them out. Richard Posner once described legal texts as “essentially mediocre.”¹⁰⁷ Both words are precisely right; but Posner forgot to add that when it comes to law, “essentially mediocre” is a compliment. Within a rule-of-law regime, rules must offer clear-cut guidance to average intelligences, and that makes essential mediocrity virtually a defining characteristic of law.

practitioners who intended ‘reasonable basis’ to set a relatively high standard of tax reporting. Some have continued to apply such a standard. To more, however, if not most tax practitioners, the ethical standard set by ‘reasonable basis’ had become a low one. To many it had come to permit any colorable claim to be put forth; to permit almost any words that could be strung together to be used to support a tax return position. Such a standard has now been rejected by the ABA Committee... A position having only a5%or 10% likelihood of success, iflitigated, should not meet the new standard. A position having a likelihood of success closely approaching one-third should meet the standard.” Report of the Special Task Force on Formal Opinion 85-352, 39 Tax Law. 635 (1986). Because of the infrequency of tax audits, tax preparation is perhaps the paradigm case where the system depends on the honor of lawyers to give advice based on legal positions that are not frivolous. There are significant parallels between the tax advisor’s role and the role of the equally unaccountable OLC.

¹⁰⁷ Richard A. Posner, Overcoming Law 91 (1995).

¹⁰⁸ Legal theorists might balk at this claim, pointing to the phenomenon of “acoustic separation” between the rules of conduct known by the hoi polloi and the more intricate rules of decision employed by officials. Meir Dan-Cohen, who introduced the concept of acoustic separation, pointed out that broad knowledge of available criminal defenses (for example, duress or necessity) would create perverse incentives for people to abuse those defenses. Hence it is better to keep decision rules and conduct rules acoustically separated, meaning that primary actors should not necessarily become aware of the more lenient decision rules officials actually use. Acoustic separation, with selective transmission of the law to different audiences, might actually be a useful strategy for lawmakers to adopt.

Although the interpretive community defines the bounds of the reasonable, there remains plenty of room for interpretive disagreement within those bounds.¹¹⁰ Law, we must remember, emerges from political processes, and it

of the legal enterprise. Normatively, there is real danger behind the idea that some law is too dangerous for ordinary mortals to know and should be left to the experts. It presupposes the superior rectitude of experts, and therefore it underrates the perverse incentives for experts to shield their own abuses from accountability. Dan-Cohen, I should add, does not make this mistake: for him, “the option of selective transmission is not an attractive one, and the sight of law tainted by duplicity and concealment is not pretty.” Ibid. at 673. Furthermore: by suggesting that society might be better off if people don’t know the law too well, the doctrine of acoustic separation rationalizes a system where legal services are unaffordable by tens of millions of people, and only the wealthy can buy their way around acoustic separation.

¹⁰⁹ The thesis I am defending is that there are no truths about what law means or requires outside the range of views that the interpretive community finds plausible. This is a weak thesis, grounded in the specific functions of law, not a general metaphysical claim that interpretive communities constitute the meaning of the objects they concern themselves with.

In the present chapter, I am fishing in shallower waters. Regardless of who is right about realist, idealist, and pragmatist conceptions of inquiry and truth in general, it seems to me we should all agree that law contains no truths hidden from the citizens it governs and the lawyers who help them understand it.

¹¹⁰ To be sure, Ronald Dworkin has argued that legal questions have a single, unique right answer, namely that answer that displays the sources of law in the morally best light. Determining which answer that is may be something that only Judge Hercules (Dworkin’s hypothetical uber-jurist) can do. Ronald Dworkin, Law’s Empire 52-53 (1986); Dworkin, “Natural” Law Revisited, 34 U. Fla. L. Rev. 165, 169-70 (1982); Ronald Dworkin, Hard Cases, in Taking Rights Seriously 81, 105-23 (1978); Dworkin, No Right Answer? in Law, Morality and Society: Essays in Honour of H. L. A. Hart 58 (P. M. S. Hacker & J. Raz eds., 1977). However, given the lack of a decision procedure or verification procedure about which people with conflicting good-faith moral views can agree (to say nothing of the unreality of Judge Hercules), it is hard to see why a Dworkinian “right answer” is anything more than a Ding an sich, an “as-if,” that anchors a theory of objectivity without serving the basic function of law, namely governing a community. I discuss some of the perplexities raised by the possibility of a right answer that lacks a verification procedure in Luban, The Coiled Serpent of Authority: Reason, Authority, and Law in a Talmudic Tale, 19 Chi.-Kent L. Rev. 1253 (2004).

Lacking a decision procedure does not doom us to radical indeterminacy in which any­thing goes. Even if we cannot settle which of several competing answers is right, we can rule out answers that are obviously wrong. To illustrate with Fred Schauer’s example, “That I am typically represents the compromise, or vector sum, of competing social forces. Compromise whittles down sharp edges, and legal standards without sharp edges are bound to generate interpretive disagreements. It is worth taking a moment to see why.

Some ambiguity in law results because drafters finessed a ticklish political issue with strategic, diplomatic doublespeak. To take a famous and blatant example, the UN Security Council helped end the Six Days War with a resolution issued in two official languages, English and French. The French version requires the Israelis to withdraw from all the occupied territory, while the English requires them to withdraw only from some.¹¹¹ The reason for splitting the difference is obvious: it stopped the shooting and postponed the hardest question to another day. (Unsurprisingly, for forty years Israelis have cited the English version and Arabs the French.) Likewise, US Congressional staffers admit that ambiguity in statutes often results because “we know that if we answer a certain question, we will lose one side or the other.”¹¹²

Although strategic ambiguity is the most obvious way that politics creates legal indeterminacy, it is not the only way. Other ambiguities enter through legislative log-rolling and mutual concessions. Political give-and-take gen­erates statutes that qualify or soften requirements, attach escape clauses to bright-line rules, or balance clauses favoring one contending interest group with clauses favoring others. None of these provisions need be unclear in itself, but taken together they generate multiple interpretive possibilities. That is because jurists interpret statutory language in the light of its purpose, and when the statute itself reflects cross-purposes, its requirements can be viewed differently depending on which purpose the interpreter deems most vital. An interpreter who views the escape clauses and qualifications as important expressions of legislative purpose will stretch them to borderline or doubtful cases; another, who views the unqualified rules as the key, will interpret those rules strictly and find very few exceptions. Needless to say, judges’ moral and political outlooks influence their understanding of legislative purpose: it’s easier to grasp purposes you agree with than purposes you don’t. Every

unsure whether rafts and floating motorized automobiles are ‘boats’ does not dispel my confidence that rowboats and dories most clearly are boats, and that steam locomotives, hamburgers, and elephants equally clearly are not.” Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399, 422 (1985).

¹¹¹ UN Security Council Resolution 242 (1967). The English version calls for “withdrawal of Israeli forces from territories occupied in the recent conflict” (“territories,” not “the terri­tories,” where “the” was dropped as the result of a US amendment to the British-proposed text), while the French version calls for “retrait des forces armees israeliennes des territoires occupes lors du recent conflit.”

¹¹² Quoted in Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 NYU L. Rev. 575, 596 (2002). On the deliberate use of ambiguity, see ibid. at 594-97, 614 19. political fault line in a legal text automatically becomes an interpretive fault line as well.

Even judicially created doctrines reflect the push and pull of many out­looks. A court creates a legal doctrine that neatly resolves the case before it. Later, another court faces a case in which applying that doctrine would yield an obviously wrong outcome; so the court carves out an exception and identifies a counter-principle governing the exception. Subsequent courts decide whether the principle or counter-principle applies to a new case by judging whether the facts of the new case more closely resemble those of the original case or the exception - and typically, some facts in the new case will resemble each. Which analogy seems most compelling will depend on judges’ varying senses of fairness. Over the course of centuries, lines of judicial authority elaborate both the principles and counter-principles into the architecture of the common law. As a result, legal doctrine resembles a multi- generational compromise, with principles and counter-principles that roughly track the political fault lines of different stages of evolving society.

The result is indeterminacy in legal doctrine, a familiar theme in the writings of the legal realists and critical legal studies. But it is indeterminacy of a special and limited sort - moderate, not global, indeterminacy. Inde­terminacy attains its maximum along fault lines where the law most strongly reflects a political compromise. Where political conflict was unimportant to the shape a legal text assumed, indeterminacy may be minimal or non­existent. Brewster was wrong: not every proposition is arguable. Lawyers desperate for an argument will try to conjure up an indeterminacy where little or none exists, but they will have a hard time doing so honestly. The torture memos testify to that.

The ethics of legal opinions

Let me summarize. I have been suggesting that crucial arguments in the torture memos are frivolous. However, I have also insisted that no bright-line test of frivolity exists beyond whether an interpretive community accepts specific objections showing that the arguments are baseless or absurd. You know it when you see it.

In that case, why can’t the torture lawyers simply reply that their inter­pretive community sees it differently from the interpretive community of liberal cosmopolitan lawyers? One answer, perhaps the strongest, is the moral certainty that they would have reached the opposite conclusion if the Administration wanted the opposite conclusion. The evidence shows that all these memos were written under pressure from officials determined to use harsh tactics - officials who consciously bypassed ordinary channels and looked to lawyers sharing their aims. An interpretive community that contours its interpretations to the party line is not engaged in good-faith interpretation.

In the case of the torture memos, the giveaway is the violation of craft values common to all legal interpretive communities. This is clearest in the Bybee Memo, but the preceding discussion reveals similar problems in the other documents. What makes the Bybee Memo frivolous by conventional legal standards is that in its most controversial sections, it barely goes through the motions of standard legal argument. Instead of addressing the obvious counter-arguments, it ignores them; its citation of conventional legal authority is, for obvious reasons, sparse; it fails to mention directly adverse authority; and when it does cite conventional sources of law, it employs them in unconventional ways, and not always honestly.

The other memos are less transparent about it, but they too discard the project of providing an analysis of the law as mainstream lawyers and judges understand it. Instead, they provide aggressive advocacy briefs to give those who order or engage in brutal interrogation legal cover.

One might ask what is wrong with writing advocacy briefs. Aren’t lawyers supposed to spin the law to their clients’ advantage? The traditional answer for courtroom advocates is yes. The aim is to persuade the judge or jury, not to write a treatise. To be sure, even courtroom advocates should not indulge in frivolous or dishonest argument. But, as Judge Easterbrook’s formula indicated, the standards of frivolity leave plenty of room for pro-client spin.

But the torture memos are not briefs. They are legal advice, and in tra­ditional legal ethics they answer to a different standard: not persuasiveness on the client’s behalf but candor and independence.^[379] As I suggested in the last chapter, perhaps the most fundamental rule of thumb for legal advice is that the lawyer’s analysis of the law should be more or less the same as it would be if the client wanted the opposite result from the one the lawyer knows he wants.

Other rules of thumb follow from this. First, a legal opinion ought to lay out in terms intelligible to the client the chief legal arguments bearing on the issue, those contrary to the client’s preferred outcome as well as those favoring it. Unlike a brief, which aims to minimize the opposing arguments and exaggerate the strength of its own, the opinion should evaluate the arguments as objectively as possible. Second, opinions must treat legal authority honestly. (Briefs should as well.) No funny stuff: if the lawyer cites a source, the reader should not have to double-check whether it really says what the lawyer says it says, or whether the lawyer has wrenched a quotation out of context to flip its meaning. And adverse sources may not simply be ignored. Just as litigation rules require lawyers to divulge directly adverse law to courts, an honest legal opinion does not simply sweep it under the rug and hope nobody notices.

Finally, an honest opinion explains where its conclusion fits on the bell curve. While it is entirely proper for an opinion writer to favor a nonstandard view of the law, she must make clear that it is a nonstandard view of the law. She cannot write an opinion advancing a marginal view of the law with a brief-writer’s swaggering self-confidence that the law will sustain no view other than hers.

An example might help. It is only fair to use an argument in one of John Yoo’s OLC memos that fulfills these requirements. A memo of January 22, 2002 (which went out over Bybee’s signature) argues, among other things, that common Article 3 of the Geneva Conventions does not apply to the US conflict with Al Qaeda. That is because Article 3 applies only to “armed conflicts not of an international character.” By this phrase, Yoo argues, the framers of Geneva had in mind only civil wars, like the Spanish and Chinese civil wars.^[380] That would plainly exclude the conflict with Al Qaeda.

There is nothing frivolous about this argument; indeed, it is quite forceful. But there is also a powerful reply to it. In legal terminology, “international” means “among nation-states,” as in the phrase “international law.” An international armed conflict is a conflict among nation-states, and therefore an armed conflict “not of an international character” would be any armed conflict not among nation-states, not only civil wars. (This, eventually, was the interpretation adopted by the US Supreme Court in its June 2006 Hamdan opinion.) In that case, the conflict with Al Qaeda would be classified as an armed conflict not of an international (i.e., state-against-state) character - and therefore common Article 3 would apply to it and protect even Al Qaeda captives. That conclusion would harmonize with the most obvious purpose of Article 3: protecting at least the most basic human rights of all captives, whether or not they qualify for the more extended protections Geneva offers to POWs and protected civilians in wars among nation-states. If, as a matter of policy, Article 3 aims to protect basic human rights in nonstandard wars, it would be irrational to protect human rights only in civil wars rather than all armed conflicts. Most international lawyers believe that human rights instruments should be interpreted in a broad, gap-filling way, precisely because of the importance of human rights.

The virtue of Yoo’s opinion is that he explicitly discusses all this. He sketches the evolution of the law of armed conflict in the twentieth century, acknowledging that in recent years international law “gives central place to individual human rights” and “blurs the distinction between international and internal armed conflicts.”^[381] He cites one of the principal cases illustrating this view, the Yugoslav Tribunal’s Tadic decision; and in a footnote he refers to other authorities taking the same view. In response, he emphasizes that the Geneva framers were thinking principally about protecting rights in civil wars, and argues that to interpret Article 3 more broadly “is effectively to amend the Geneva Conventions without the approval of the State parties to the agreements.”¹¹⁶ In other words, where most international lawyers treat human rights instruments like a “living” constitution, Yoo treats them like contracts. I think this gives him the weaker side of the argument - and, obviously, the Supreme Court rejected his position - but that is not the point. The point is that he does a respectable job of sketching out the legal land­scape, making it clear that his own analysis runs contrary to that of most international lawyers, and representing their positions honestly.^[382] That is the kind of candid advice a lawyer can legitimately provide the client, even if it deviates from mainstream views.^[383]

The lawyer as absolver

But what happens when the client wants cover, not candid advice? - when the client comes to the lawyer and says, in effect, “Give me an opinion that lets me do what I want to do”?

Lawyers have a word for a legal opinion that does this. It is called a CYA memorandum - Cover Your Ass. Without the memorandum, the client who wants to push the legal envelope is on his own. But with a CYA memo in hand, he can insist that he cleared it with the lawyers first, and that way he can duck responsibility. That appears to be the project of the torture memos.

Notice that this diagnosis differs from Anthony Lewis’s judgment that the Bybee Memo “read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison.”^[384] The torture memos are not advice about how to stay out of prison; instead, they reassure their clients that they are not going to prison. They are opinion letters blessing or koshering con­duct for the twin purposes of all CYA memos: reassuring cautious lower- level employees that they can follow orders without getting into trouble, and allowing wrongdoers to duck responsibility. The fact that they emerge from the Justice Department - the prosecutor of federal crime - makes the reassurance nearly perfect.

116

Ibid.

When they write CYA memos, lawyers cross the fatal line from legal advisor to moral or legal accomplice. Obviously, it happens all the time. Journalist Martin Mayer, writing about the 1980s savings-and-loan collapse, quoted a source who said that for half a million dollars you could buy a legal opinion saying anything you wanted from any big law firm in Manhattan.^[385] In the Enron case, we saw lawyers writing opinion letters that approved the creation of illegal Special Purpose Entities, even though they knew that they were skating on thin ice. I am arguing that this is unethical. In white-collar criminal cases, some courts in some contexts will accept a defense of good­faith reliance on the advice of counsel, and presumably that defense is the prize the client seeks from the lawyer. But when the client tells the lawyer what advice he wants, the good faith vanishes, and under the criminal law of accomplice liability, both lawyer and client should go down.^[386]

Giving the client skewed advice because the client wants it is a different role from either advocate or advisor. I call it the Lawyer As Absolver, or, less nicely, the Lawyer As Indulgence Seller. Luther began the Reformation in part because the popes were selling papal dispensations to violate law, along with indulgences sparing sinners the flames of hell or a few years of pur­gatory. Rodrigo Borgia once brokered a papal dispensation for a French count to sleep with his own sister. It was a good career move: Rodrigo later became Pope Alexander VI.^[387] Jay Bybee had to settle for the Ninth Circuit Court of Appeals.

It is important to see why the role of Absolver, unlike the roles of Advocate and Advisor, is illegitimate. The courtroom advocate’s biased presentation will be countered by the adversary in a public hearing. The advisor’s presentation will not. In the courtroom, the adversary is supposed to check the advocate’s excesses. In the lawyer’s office, advising the client, the lawyer is supposed to check the client’s excesses. Conflating the two roles moves the lawyer out of the limited role-based immunity that advocates enjoy into the world of the indulgence seller.

In short: if you are writing a brief, call it a brief, not an opinion. If it is an opinion, it must not be a brief. If you write a brief but call it an opinion, you have done wrong.

Government lawyers

Some might reply that in the real world outside the academy, legal opinions by government offices are briefs. When the State Department issues an opinion vindicating a military action by the US government, everyone understands that this is a public statement of the government’s position, not an independent legal assessment. To suppose otherwise is naive.

In that case, however, why keep up the charade? Consider, for example, a pair of documents authored by the British Attorney General, Lord Peter Goldsmith. The first was a confidential legal memorandum to Tony Blair on the legality of the Iraq war, dated March 7, 2003, less than two weeks before the war began. The memo consisted of thirteen densely packed pages, and in my view it is a model of what such an opinion should be. It carefully and judiciously dissects all the pro and con arguments, which were closely balanced, consisting largely of interpretive debates over the meaning of characteristically soapy UN Security Council resolutions. Goldsmith con­cluded that, while in his opinion obtaining a second Security Council reso­lution authorizing the use of force “is the safest legal course,” a reasonable argument can be made that existing resolutions would suffice to justify the war.^[388] It was a cautious go-ahead to Blair, larded with substantial misgivings and caveats. If Blair’s request to Goldsmith was to give him the strongest argument available for the legality of the war, Goldsmith replied in the best way he could: he articulated the argument Blair wanted, advised him that it was reasonable, but also made it clear that the argument did not represent his own view of how the law should best be read. This represents the limit to which an honest legal advisor can tailor his opinion to the wishes of his client. Goldsmith’s office wrote a sophisticated, honest document.

Ten days later - three days before the bombing began - Lord Goldsmith presented the same issue to Parliament, and now all the misgivings were gone. In place of thirty-one subtle paragraphs of analysis, the “opinion” to Parliament consists of nine terse, conclusory paragraphs with no nuance and no hint of doubt.^[389] In place of the confidential memorandum’s con­clusion that the meaning of a Security Council resolution was “unclear,” Goldsmith’s public statement expressed no doubts whatever. It was pure vindication of the course of action to which Blair was irrevocably committed.

Two years later, Goldsmith told the House of Lords that his public statement was “my own genuinely held, independent view,” and that alle­gations “that I was leant on to give that view... are wholly unfounded.”^[390] Unfortunately for Lord Goldsmith, the confidential memorandum leaked a few weeks later, and readers could see for themselves what his genuinely held, independent view actually had been. The kerfluffle that followed fanned public suspicion about the decision to go to war, and weakened Blair in the next election.

It is obvious why Lord Goldsmith gave Parliament the unqualified opinion he did. The war was about to begin, the government was committed to it, and it was deeply controversial. An opinion laden with doubts would have had devastating repercussions for the government’s policy and its relationship with the United States. Knowing this, Goldsmith wrote a brief, just as the realists think he should. But realists should notice that when he had to defend it two years later, Goldsmith continued to pretend that it was something else - a backhanded acknowledgment of the principle I am proposing: Ifyou write a brief but call it an opinion, you have done wrong. In his second, brief-like opinion, he did wrong.

This is doubly true for the OLC, because in modern practice its opinions bind the executive branch.^[391] That makes them quasi-judicial in character. In the preceding chapter, I argued that legal advice from lawyers to clients is always “jurisgenerative” and quasi-judicial, but obviously, written opinions binding entire departments of the government are judicial in a more direct way. As such, the obligation of impartiality built into the legal advisor’s ethical role is reinforced by the obligation of impartiality incumbent on a judge. Two additional factors make the obligation more weighty still. First, some of the opinions were secret. Insulated from outside criticism and alternative points of view, written under pressure from powerful officials and, perhaps, from hair-raising intelligence about Al Qaeda’s intentions, they were memos from the bunker. Recognizing a professional obligation to provide impartial analysis represented an essential tether to reality. Finally, the OLC is charged by statute with helping the executive discharge its constitutional obligation to “take care that the laws be faithfully executed.” Fidelity to the law, not to the Administration, requires impartiality.

In December, 2004, nineteen former lawyers in the OLC drafted a set of principles for the office reaffirming its commitment to this standard con­ception of the independent legal advisor. Apparently, this is not how the Bush Adminstration’s OLC conceives of its job, for none of its lawyers was willing to sign.^[392]

Conclusion

I drafted this chapter before the United States Supreme Court rebuffed the Bush administration’s detainee policies in Hamdan v. Rumsfeld. Among other significant holdings, Hamdan found that common Article 3 of the Geneva Conventions applies to detainees in the war on terror. Article 3 forbids torture and humiliating or degrading treatment - an awkward holding, because, as we have seen, high-level officials, including the Secretary of Defense and possibly the Vice-President or even the President, had authorized such treatment for high-value detainees. Worse, federal law declared violations of common Article 3 to be war crimes. Hamdan pushed administration lawyers into overdrive, and they produced a bill, the Military Commissions Act of 2006, to respond to the Court. After intense negotiations with moderate Republican Senators, the final bill was approved by Congress and signed into law in October 2006.

The bill responded to Hamdan’s challenge in a drastic way. It stripped federal courts of habeas corpus jurisdiction over Guantanamo, defined “unlawful enemy combatants” broadly, prohibited detainees from arguing for Geneva Convention rights, retroactively decriminalized humiliating and degrading treatment, declared that federal courts could not use international law to interpret war crimes provisions, vested interpretive authority over Geneva in the President, allowed coerced evidence to be admitted, gave the government the power to shut down revelation of exactly what techniques were used to obtain such coerced evidence, and defined criminally cruel treatment in a deeply convoluted way. For example, the bill distinguishes between “severe pain,” the hallmark of torture, and merely “serious” pain, the hallmark of cruel treatment short of torture - but it then defines “serious” pain as “extreme” pain. Such bizarre legalisms call the Bybee Memo to mind, of course, and they should. This bill (the worst piece of legislation I can recall from my own lifetime) was clearly inspired by the style of legal thinking perfected by the torture lawyers. In effect, the torture lawyers helped to define a “new normal,” without which the Military Commissions Act would not exist.

This chapter chronicles a legal train wreck. The lawyers did not cause it, but they facilitated it. As a consequence, enmity toward the United States has undoubtedly increased in much of the world. Sadly and ironically, the net effect on US intelligence gathering may be just the opposite of what the lawyers hoped, as potential sources who might have come willingly to the Americans turn away out of anger or fear that they might find themselves in Guantanamo or Bagram facing pitiless interrogators.

This is also a chapter on the legal ethics of opinion-writing. I have focused on what Fuller might have called the procedural side of the subject: the requirements of honesty, objectivity, and non-frivolous argument, regardless of the subject-matter on which lawyers tender their advice. But that does not mean the subject-matter is irrelevant. It is one thing for boy-wonder lawyers to loophole tax laws and write opinions legitimizing financial shenanigans. It is another thing entirely to loophole laws against torture and cruelty. Lawyers should approach laws defending basic human dignity with fear and trem- bling.^[393]

To be sure, honest opinion-writing will only get you so far. Law can be cruel, and then an honest legal opinion will reflect its cruelty. In the centuries when the evidence law required torture, no lawyer could honestly have advised that the law prohibited it. Honest opinion-writing by no means guarantees that lawyers will be on the side of human dignity.

The fact remains, however, that rule-of-law societies generally prohibit torture and CID, practices that fit more comfortably with despotism and absolutism. For that reason, lawyers in rule-of-law societies will seldom find it easy to craft an honest legal argument for cruelty. Like the torture lawyers of Washington, they will find themselves compelled to betray their craft. Of course, they may think of it as creative lawyering or cleverness, not betrayal. I have little doubt that only intelligent, well-educated lawyers could write these memos, larded as they are with sophisticated-looking tricks of statutory interpretation. But there is such a thing as being too clever for your own good.^[394]