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."
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