15 Feb Luban on the Ethical Implications of the Torture Memos
In a brief essay on Slate, David Luban argues that the OLC lawyers who drafted the infamous “torture memos” (discussed in earlier posts, here, here and here) have something in common with Lynne Stewart, who was convicted last week of material support for her client, Sheik Omar Abdel Rahman, the Egyptian cleric serving a life sentence for his role in the 1993 World Trade Center attack. Luban argues they all crossed an important ethical line. In Stewart’s case, the jury concluded that her advocacy for her clients ran afoul of ABA Model Rule 1.2(d) — assisting a client in conduct the lawyer knows is “criminal or fraudulent” — as well as federal law prohibiting support for terrorism. In the case of the OLC lawyers, Luban argues that they ran afoul of the professional rules governing the role of legal advisers.
I have wondered about the scope of ethical obligations of legal advisers in government service since I first read the starkly conflicting memos to Alberto Gonzales written by the OLC lawyers and those written separately by William Taft and Colin Powell at State on the applicability of the Geneva Conventions to the Taliban and al Qaida detainees. The absence of alternative historical views and lack of policy context in the OLC memo struck me as rather glaring. (The strong disagreement on the law, history and policy interpretation between Taft and the State Dept lawyers on the one hand, and Yoo and the OLC on the other, is evident in this exchange of memos from early 2002.)
Luban, a leading scholar in professional responsibility provides an answer: ABA Model Rule 2.1, which provides that legal advisers “shall exercise independent professional judgment and render candid advice.” Luban continues:
Legal advisers must play it straight, even where the “[l]egal advice [may] involve[] unpleasant facts and alternatives that a client may be disinclined to confront.” Independence means saying what the law is — as mainstream lawyers and judges understand it –regardless of what the client wishes it to be. Candor requires lawyers with eccentric theories to warn their clients whenever their legal advice veers away from the mainstream. The torture lawyers betrayed both these principles with the advice they gave the White House.
In the “Bybee Memo,” for example, candid advice demands that when you discuss the “necessity defense” to the crime of torture, you mention that the defense has always been a loser in federal court. In the case of a later OLC memo by now-Harvard law professor Jack Goldsmith on the Geneva Conventions, candor means forthrightly reminding your client that Geneva forbids coercive interrogations, not burying this unwelcome point in a vaguely worded footnote.
Luban goes on to note, however, that no one has ever been disciplined for this kind ethical line-crossing when it comes to “candid advice-giving.” And, at least as regards the Geneva Conventions question, the client (President Bush, through his counsel, Alberto Gonzales) had access to the alternative view put forth by State. It nonetheless is an important discussion of slippery slope of ends-based advocacy, one which bears discussion with our students.
No doubt, there are strong views on where the ethical line is appropriately drawn. To promote open discussion of this issue, ASIL has placed it on the agenda for the Annual Meeting in Washington DC, with a panel entitled “Legal Ethics and the War on Terror: the Role of the Government Lawyer” scheduled for 2:15 pm on April 1. (The full Annual Meeting agenda is here.)
As a second year law student at Harvard Law School, I find the groupthink implications of these sorts of “ethical” guidelines bothersome: Don’t offer any advice (without disclosure) if it is out of some vaguely defined (presumably politically correct) “mainstream” thinking.
This is a loser of a rule in general, but especially in the context of advice to the President concerning situations without precedent. To my knowledge, the necessity defense has never been tried in the context of stopping a deadly terrorist attack (the “ticking timebomb scenario”). It is thus not meaningful possible to gage “mainstream” opinion. But maybe the “ethical” thing to do is to survey the legal community for it’s opinions, to discover “mainstream” thought.
Following “mainstream” thought is even more problematic in the context of executive power. It is the executive’s duty to take care that the laws are faithfully executed; that duty does not belong “mainstream lawyers and judges,” whose views may be starkly different from the views of the electorate to which the President is politically accountable.
Ultimately, like the Judiciary, the President takes an oath to defend the Constitution. As justiciability doctrines acknowledge, in some spheres, the executive’s interpretation is not reviewable by the judiciary. This is especially so with respect to matter of war and peace, given the President’s role as Commander-in-Chief and duty to take care that the laws are faithfully executed. It is ridiculous for the elite groups who invent “ethical” rules to attempt any shift in power between the branches of government in the name of ethics. The idea seems to be that while the judiciary will not review certain executive decisions, perhaps legal elites should nonetheless be able to foist their elitist (and they would like to think, “mainstream”) views on members of the executive branch who do not share those views, by punishing those who loyally serve the President rather than the objectives of “mainstream” lawyers and judges. This ides, in my mind, does not implicate the ethics of someone like John Yoo, but rather the ethics of those who would like to abuse their roles as gatekeepers of professional licensing to regulate the thinking of practicioners (it should not vary from “mainstream” thinking) and further would like to push… Read more »
Peggy: You say you were struck by the absence of alternative historical views and policy context in the OLC memo about the applicability of the Geneva Convention. I can’t understand your position on that. Isn’t it true that beginning of the memo the authors noted that they were specifically not providing policy advice; that the OLC is in fact not a policy organ but rather a legal interpreter; that nonetheless at page 25 of those OLC memos, the authors stated that while they had not been asked to provide policy analysis, they felt it important to mention that the US had always lived up to the Convention as a matter of policy; and that the authors then recounted in great detail historical situations where the US had done exactly that. This whole idea that the OLC didn’t discuss policy is a canard, isn’t it? Although the OLC wasn’t asked for policy, and isn’t constituted as a policy-analyzing body, they did in fact discuss policy, right? As for Luban’s article, I admire his work but I think he gets it wrong. It’s not a case where the OLC told the client what it wanted to hear. It was a case where… Read more »
For a slightly longer account of my disagreement with Luban’s article, see my legal ethics blog at
http://www.legalethicsforum.typepad.com/
I find the rejection of legal ethics in some of these comments breathtaking – as well as the poverty of some of the arguments. Is a Harvard Law Student not part of the elites? And was there no other stake in the election than the legality vel non of the torture memos? Is the American people so well-versed in the laws of war that it can consciously make such a decision? Should we abolish any legal constraints because laws are made by ‘elites’? Should the President in wartime be like an unaccountable king, freed from all strictures of the law? (This was the idea of King George, not of Thomas Jefferson).
It is understandable that Professor Yoo wishes to make the American people responsible for his own failures. We should not let him get away with this rejection of accountability.
Andreas