The lawyer as litigator owes a client zealous advocacy in the courtroom. But the lawyer as counselor owes the client more: sound, independent judgment about proposed conduct, with frank and fully informed warnings about any doubts, legal or otherwise.
These elementary teachings in any legal ethics course can readily be applied to the controversy over the “enhanced interrogation techniques” used by CIA agents in questioning the so-called high-value al Qaeda detainees captured after 9/11. A lawyer defending any of the agents in court would have to pull out all the stops to get the agents off. But the lawyers in the Justice Department’s Office of Legal Counsel (OLC) called on to advise the CIA about the legality of the proposed techniques needed to be more skeptical — all the more because they were representing not the agents, but the United States government itself.
The OLC’s “torture memos” written in 2002 and 2005 and now released by President Obama show that the Bush administration lawyers failed in this basic, ethical obligation. On a quick read, the memos are chilling in the carefully calibrated approval of the techniques: confinement in cramped box, OK, if limited to two hours; sleep deprivation, OK, up to 72 hours or maybe longer; “walling,” OK, up to 30 times; waterboarding, OK, for 20 minutes at a time.
The memos are even more disturbing in the patent legal errors that emerge from a closer reading. In one mistake already known, the lawyers erred in advising that the Geneva Conventions do not apply to the al Qaeda captives. As the Supreme Court ruled in 2006, the treaties’ so-called Common Article 3 applies to all wartime captives, even those like the al Qaeda operatives who do not abide by the internationally recognized laws of war.
The lawyers were also on shaky grounds in advising that CIA interrogators would be protected from laws against torture as long as they did not specifically intend to inflict severe bodily harm. That argument would be no better than a dubious defense in the courtroom — and, for that reason, bad advice beforehand.
Since the release of the memos on April 17, legal commentators have pointed out many other mistakes. As widely observed, the memos approved waterboarding without noting that the United States has itself prosecuted persons who inflicted that technique on U.S. service personnel. That omission exemplifies the broader failure of relying solely on the CIA for information. As noted by Brian Tamahana, a professor at St. John’s University School of Law in New York City, on the Balkinization blog, the interrogation techniques are deemed not to inflict severe injury on the circular ground that the CIA says they won’t.
Even if those assurances were taken at face value, the OLC lawyers sanction each of the proposed techniques with no consideration of their cumulative effect. And they approve the techniques in part because U.S. service personnel undergo them in training without recognizing that the training is designed to prepare U.S. service personnel to resist torture.
The lawyers also engaged in specious reasoning to conclude that the proposed techniques satisfy a “shock the conscience” test. That test, the lawyers reasoned, prohibits only “arbitrary” conduct that has no “reasonable justification” in furtherance of a “legitimate” government objective. The interrogation of the al Qaeda captives meets that test, the lawyers continued, because it was aimed at preventing a “grave threat” of supposedly imminent attack.
On that line of reasoning, virtually any interrogation technique — genital electric shocks, for example — would seemingly pass muster too. And in approving the imminent threat rationale, the lawyers raise no concern that the justification must be continually re-examined — or else it amounts to a blank check with no expiration date.
In one final omission, the memos never ask about the consequences of possible disclosure — as a good lawyer would have warned was all but inevitable. Indeed, over the past few years, the techniques have leaked out, at great cost to the government’s standing at home and abroad.
Obama repudiated the memos on his second day in office. The lawyers who wrote or signed them — Steven Bradbury, Jay Bybee, and John Yoo — have moved on: Bybee to a federal judgeship, Yoo back to academia, and Bradbury to the private sector job market. Despite calls for accountability from the political left, they are unlikely to face criminal prosecutions. Nor does impeachment for Bybee seem likely. But the investigation still under way by the Justice Department’s Office of Professional Responsibility could recommend some ethical sanction.
Of the three, only Yoo continues to publicly defend the memos. Bradbury and Bybee are largely out of sight. But Bybee is reported to have evinced some doubts in a gathering of his former law clerks to mark his fifth year on the Ninth U.S. Circuit Court of Appeals. As reported in The Recorder, a San Francisco-based legal newspaper, a former clerk quoted Bybee as saying he was proud of the memos his clerks had been writing for him — and then added: "I wish I could say that of the prior job I had."
Friday, April 24, 2009
Friday, April 10, 2009
Supreme Court: The Conservative Vision in Roberts' Rulings
When Kenneth Starr spoke to Georgetown law school’s Federalist Society in February, he repeated a standard conservative critique of the Supreme Court under Chief Justice Earl Warren. The Warren Court, Starr said, was “animated by a vision of a progressive society and of the Court’s using its power to further that progress.”
As evidence, Starr cited a second-hand quote attributed to Justice Tom Clark, who played the pivotal role in the decision in Mapp v. Ohio (1960) that launched the Warren Court’s criminal procedure revolution. It was Clark, a former U.S. attorney general, who persuaded four other justices to turn a state obscenity case into a decision requiring states to follow the exclusionary rule and bar the use of any evidence illegally seized by police.
Years later, Starr recounted, Clark was quoted as saying: “We really knew that we had to do something to clean up the nation’s police departments.” Now, decades later, the nation’s police departments have in fact been cleaned up. And no less an authority than the late Chief Justice William H. Rehnquist described the capstone of the Warren Court’s criminal procedure rulings — the police interrogation guidelines established in Miranda v. Arizona (1966) — as “part of our national culture.”
Starr, the former judge-solicitor general-Whitewater prosecutor now turned lawyer and law professor, described the current Court, under Chief Justice John G. Roberts Jr., as “a very different kind of court.” Without elaborating, Starr seemed to be suggesting that — unlike Warren’s — Roberts’ Court does not bring an overarching "vision" to its judicial decision making. Roberts himself gave the Senate Judiciary Committee a preconfirmation assurance that he had no agenda and wanted only to be an “umpire” while others determined the rules of the game.
Even at the time, Roberts’ portrayal of judicial decision-making as ideologically neutral could be recognized as claptrap. Now, four terms later, it is clear that Roberts, who came of age in the Reagan administration and to the bench under Bush 43, brings to the bench an overarching, conservative vision of legal policy. And with four votes from the other conservative justices, Roberts has been able to put some of that vision into effect — in some cases, legal precedent to the contrary notwithstanding.
The most controversial examples of Roberts’ vision came in 2007 as he ended his second term — and the first full term with his fellow Bush appointee, Samuel A. Alito Jr. Replacing Justice Sandra Day O’Connor, Alito created a more reliable conservative majority that flexed its muscles that year by upholding the federal law banning so-called partial birth abortions, limiting school districts’ racial diversity policies and gutting the campaign finance law against corporate-funded, campaign-time “issue advertising.
The conservatives reached each of those decisions by sliding over or around the Court’s prior rulings. The Court that year also explicitly overruled a 90-year-old antitrust precedent. And it dubiously extended a prior ruling to limit taxpayer suits against use of federal funds to support overtly religious programs.
The Court has continued to lay waste to precedent. In 2008, the conservatives recognized an individual right to possess firearms under the Second Amendment in the teeth of a 70-year-old precedent to the contrary. Just this month, the Court on April 1 effectively overturned a 35-year-old precedent in order to enforce a collective bargaining agreement requiring workers to take discrimination complaints to arbitration instead of into federal court. Earlier this year, the Court used a footnote to scrap a federal appeals court antitrust ruling written in 1945 by the late Judge Learned Hand that had passed into the law books as settled law.
Under Roberts, the conservatives also appear to be on a stealth campaign of sorts to gut, if not abolish, the exclusionary rule. The first sign came in 2006 with the 5-4 decision in Hudson v. Michigan permitting the use of evidence found in the suspect’s home even though police had not complied with the “knock and announce” rule before entering. For the majority, Justice Antonin Scalia openly questioned the need for the exclusionary rule in an era of improved police professionalism. In January, Roberts similarly questioned the rationale for the exclusionary rule in another 5-4 decision, Herring v. United States, which allowed the use of evidence except in instances of reckless or systemic police misconduct.
As in other areas, Justice Anthony M. Kennedy is a sometimes wayward conservative. He wrote a concurring opinion in Hudson to stress that the exclusionary rule remains alive. Earlier this month, he cast a decisive vote with the liberal bloc in Corley v. United States to preserve the Court’s 66-year-old ruling to bar confessions in federal court unless a suspect is taken before a magistrate within six hours of arrest. For the dissenters, Alito said the exclusionary rule served no purpose in such cases.
These and other decisions reveal the vision that animates the Roberts Court whether or not Kennedy is on board. The agenda includes less protection for women’s reproductive rights, less leeway for schools to promote racial diversity, less room for legislators to regulate campaign spending, less access to courts for workers and consumers, and lessened constraints on the police to safeguard Fourth Amendment rights. It is an ambitious agenda. At age 54, Roberts has ample time to try to put the pieces into effect.
As evidence, Starr cited a second-hand quote attributed to Justice Tom Clark, who played the pivotal role in the decision in Mapp v. Ohio (1960) that launched the Warren Court’s criminal procedure revolution. It was Clark, a former U.S. attorney general, who persuaded four other justices to turn a state obscenity case into a decision requiring states to follow the exclusionary rule and bar the use of any evidence illegally seized by police.
Years later, Starr recounted, Clark was quoted as saying: “We really knew that we had to do something to clean up the nation’s police departments.” Now, decades later, the nation’s police departments have in fact been cleaned up. And no less an authority than the late Chief Justice William H. Rehnquist described the capstone of the Warren Court’s criminal procedure rulings — the police interrogation guidelines established in Miranda v. Arizona (1966) — as “part of our national culture.”
Starr, the former judge-solicitor general-Whitewater prosecutor now turned lawyer and law professor, described the current Court, under Chief Justice John G. Roberts Jr., as “a very different kind of court.” Without elaborating, Starr seemed to be suggesting that — unlike Warren’s — Roberts’ Court does not bring an overarching "vision" to its judicial decision making. Roberts himself gave the Senate Judiciary Committee a preconfirmation assurance that he had no agenda and wanted only to be an “umpire” while others determined the rules of the game.
Even at the time, Roberts’ portrayal of judicial decision-making as ideologically neutral could be recognized as claptrap. Now, four terms later, it is clear that Roberts, who came of age in the Reagan administration and to the bench under Bush 43, brings to the bench an overarching, conservative vision of legal policy. And with four votes from the other conservative justices, Roberts has been able to put some of that vision into effect — in some cases, legal precedent to the contrary notwithstanding.
The most controversial examples of Roberts’ vision came in 2007 as he ended his second term — and the first full term with his fellow Bush appointee, Samuel A. Alito Jr. Replacing Justice Sandra Day O’Connor, Alito created a more reliable conservative majority that flexed its muscles that year by upholding the federal law banning so-called partial birth abortions, limiting school districts’ racial diversity policies and gutting the campaign finance law against corporate-funded, campaign-time “issue advertising.
The conservatives reached each of those decisions by sliding over or around the Court’s prior rulings. The Court that year also explicitly overruled a 90-year-old antitrust precedent. And it dubiously extended a prior ruling to limit taxpayer suits against use of federal funds to support overtly religious programs.
The Court has continued to lay waste to precedent. In 2008, the conservatives recognized an individual right to possess firearms under the Second Amendment in the teeth of a 70-year-old precedent to the contrary. Just this month, the Court on April 1 effectively overturned a 35-year-old precedent in order to enforce a collective bargaining agreement requiring workers to take discrimination complaints to arbitration instead of into federal court. Earlier this year, the Court used a footnote to scrap a federal appeals court antitrust ruling written in 1945 by the late Judge Learned Hand that had passed into the law books as settled law.
Under Roberts, the conservatives also appear to be on a stealth campaign of sorts to gut, if not abolish, the exclusionary rule. The first sign came in 2006 with the 5-4 decision in Hudson v. Michigan permitting the use of evidence found in the suspect’s home even though police had not complied with the “knock and announce” rule before entering. For the majority, Justice Antonin Scalia openly questioned the need for the exclusionary rule in an era of improved police professionalism. In January, Roberts similarly questioned the rationale for the exclusionary rule in another 5-4 decision, Herring v. United States, which allowed the use of evidence except in instances of reckless or systemic police misconduct.
As in other areas, Justice Anthony M. Kennedy is a sometimes wayward conservative. He wrote a concurring opinion in Hudson to stress that the exclusionary rule remains alive. Earlier this month, he cast a decisive vote with the liberal bloc in Corley v. United States to preserve the Court’s 66-year-old ruling to bar confessions in federal court unless a suspect is taken before a magistrate within six hours of arrest. For the dissenters, Alito said the exclusionary rule served no purpose in such cases.
These and other decisions reveal the vision that animates the Roberts Court whether or not Kennedy is on board. The agenda includes less protection for women’s reproductive rights, less leeway for schools to promote racial diversity, less room for legislators to regulate campaign spending, less access to courts for workers and consumers, and lessened constraints on the police to safeguard Fourth Amendment rights. It is an ambitious agenda. At age 54, Roberts has ample time to try to put the pieces into effect.
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