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.)