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<font size=3>The Torture Memo <br>
by Stephen Gillers<br><br>
<br>
The Justice Department is investigating <br>
the lawyers whose memos gave the Bush Administration the legal<br>
support it needed for waterboarding and other brutal interrogation<br>
techniques. We are "examining whether the legal advice in these<br>
memoranda was consistent with the professional standards that apply
to<br>
Department of Justice attorneys," H. Marshall Jarrett, counsel for
the<br>
Justice Department's Office of Professional Responsibility, wrote to
two<br>
Democratic senators in February. <br><br>
The torture memos from 2002 were mainly the work of Jay Bybee,
then<br>
head of the Office of Legal Counsel (OLC) and now a federal
appellate<br>
judge in San Francisco, and Bybee's deputy, John Yoo, who has since<br>
returned to teaching law at the University of California, Berkeley.
This<br>
month the Pentagon released a long-rumored torture memo from 2003<br>
written solely by Yoo, which is even more adamant in its embrace of<br>
unfettered presidential power. <br><br>
The memos are an abysmal piece of work, but they had great value
to<br>
the President. Dismissing the Geneva Conventions and other law, they<br>
used the veneer of serious legal scholarship (abundant footnotes,
many<br>
citations, long dense paragraphs) to create an aura of legitimacy
for<br>
near-death interrogation tactics and unrestrained executive power.
The<br>
memos had high credibility because they came from the OLC, the legal<br>
brain trust for the executive branch and (until then) the gold
standard<br>
for legal acumen. <br><br>
The press tends to overlook the lawyers when scandal breaks,<br>
focusing instead on their clients. That's understandable, but in
public<br>
and commercial life no serious move is possible (no corporate
maneuver,<br>
no new financial instrument, no war, no severe interrogation tactic)<br>
without legal approval. Even if the advice proves wrong, the client,
if<br>
sued or indicted, can claim reliance on counsel. <br><br>
When lawyers in private practice mess up, they face serious<br>
jeopardy. They can be fired, sued for malpractice, disbarred or<br>
prosecuted. Yoo and Bybee face no such risks. The President won't<br>
protest. He got what he wanted. And while a state disciplinary body
can<br>
investigate, that is unlikely without Justice Department help. <br><br>
The Justice Department recognized the incompetence of the
torture<br>
memorandums when Bybee's successor, Jack Goldsmith, retracted an
August<br>
2002 memo that had construed the Convention Against Torture and the<br>
federal statute forbidding torture to permit interrogation tactics
just<br>
shy of homicide. And that memo was actually an improvement on the
OLC's<br>
earlier work, which, in advising on "the effect of
international<br>
treaties and federal laws on the treatment" of detainees from<br>
Afghanistan, entirely overlooked the torture convention and
statute.<br><br>
In his book The Terror Presidency, Goldsmith, now a Harvard<br>
law professor, writes that the torture memos had "o foundation"
in any<br>
"source of law" and rested on "one-sided legal
arguments." They were<br>
valuable to the Administration nonetheless, Goldsmith says, because
the<br>
CIA saw one of them as a "golden shield" against criminal
prosecution of<br>
agents who had used harsh interrogation techniques. <br><br>
Well, anyone can make a mistake, right? And don't lawyers
disagree<br>
all the time? Of course, but that's not the point. The present
criticism<br>
cites the utter shoddiness of the work. Take another example.
Although<br>
the OLC memos broadly construed presidential power in foreign
affairs,<br>
they ignored the Supreme Court's landmark 1952 "steel seizure
case,"<br>
which greatly restricts that power and contradicts the OLC's
expansive<br>
claims. It would be like advising a client on school desegregation
law<br>
and ignoring Brown v. Board of Education. Yale law dean Harold<br>
Hongju Koh called this omission "a stunning failure of lawyerly
craft"<br>
and "a stain upon our law and our national reputation."
<br><br>
How could two really smart guys authorize torture using
"one-sided<br>
legal arguments" that have "o foundation" in law? How
could they be<br>
guilty of a "stunning failure of lawyerly craft"? The sad
answer seems<br>
to be that they knew what the President wanted and delivered: torture
is<br>
OK if you call it something else. Detainees are outside the
protection<br>
of due process and civilized law. The President's authority is close
to<br>
absolute. Anyway, no court can review him. (On this last point, the<br>
Supreme Court disagreed.) <br><br>
This incompetence is especially serious because of the conduct
it<br>
enabled. If a private lawyer gave such a lopsided and wrongheaded<br>
analysis to a business client, he'd be history. Lawyers advising
private<br>
clients about to make important decisions (a "bet the company"
kind of<br>
decision) meticulously analyze all sides of a question so the
clients<br>
can assess risk and choose wisely. <br><br>
The client deserved better, and that raises another issue, the
most<br>
troubling. Who was the client? The lawyers told the President what
he<br>
wanted to hear, but the nation was their client, and its sole
interest<br>
was in thorough and independent legal analysis. Neither the
President's<br>
political agenda nor the authors' views of what the law should say
can<br>
be allowed to slant the OLC's work. So maybe the best and brightest<br>
lawyers got it so wrong because they forgot whom they served. Maybe
they<br>
acted politically, not professionally. If so, we are dealing with a<br>
perversion of law and legal duty, a betrayal of the client and<br>
professional norms, not mere incompetence, which would be bad
enough.<br>
Whatever the reason, Jarrett should find that this work is not<br>
"consistent with the professional standards that apply to Department
of<br>
Justice attorneys." Jarrett must hold the lawyers accountable if
he<br>
means to restore OLC's reputation and vindicate the rule of law.
Stephen<br>
Gillers <br><br>
<br><br>
This article can be found on the web at:<br><br>
<a href="http://www.thenation.com/doc/20080428/gillers" eudora="autourl">
http://www.thenation.com/doc/20080428/gillers<br><br>
<br><br>
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