Were the Torture Memos Just Normal Lawyering?

Adrian Vermeule and Eric Posner, both respected law scholars at U. Chicago, penned an op-ed last week [now suddenly offline, only available via google cache] in which they argued that the torture memos were in fact quality lawyering, a view endorsed by the pseudonymous member of the Volokh conspiracy (who often writes as if s/he were a government lawyer).

There are a lot of things I find disturbing about this view. First, if the Torture Memo author(s) (mostly John Yoo) were asked to survey the field and opine on the best answer, they clearly failed. They did not even let on there was another side to the Presidential power question, much less that the majority of the Supreme Court had endorsed it, and most likely would again endorse it.

The Chicago profs counter this argument by saying that the OLC engaged in “standard lawyerly fare, routine stuff”. And,

Although it is true that they did not, in their memorandum, tell their political superiors that torture was immoral or foolish or politically unwise, they were not asked for moral or political advice; they were asked about the legal limits on interrogation. They provided reasonable legal advice and no more, trusting that their political superiors would make the right call. Legal ethics classes will debate for years to come whether Justice's lawyers had a moral duty to provide moral advice (which would surely have been ignored) or to resign in protest.

Wrong. This isn't a close call at all. To the extent that they lawyers may have been told they had to justify as much torture as could be squared with the law, they again failed on two grounds. First, their arguments as to specific intent, at least, were (I have it on good authority) specious. Second, if tasked with justifiying a given and evil conclusion, they should have found somewhere to mention that torture would be wrong. The failure to do so, as Jack Balkin noted some time ago, makes the entire argument one of those documents that makes you ashamed to be a lawyer.

Indeed, Balkin again has useful things to say about this op-ed, focusing on the claim that in the Torture Memo the OLC was just doing what it usually does, asserting a strong view of Presidential power.

Both Posner and Vermeule (and yes for that matter John Yoo also) have written scholarly papers that I respect. But there's something worryingly wrong here when smart lawyers endorse the view that a lawyer is a machine, and can or should turn off his moral compasses, justifying it by saying he is just following the client's orders, or meeting his expectations, or that saying “this would be wrong” is a futile gesture. This is never more true when they are government lawyers with an independent oath and obligation to the American people and to the Constitution.

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18 Responses to Were the Torture Memos Just Normal Lawyering?

  1. JC says:

    Apparently the lawyers forgot who the client was: The people of the US.

    These lawyers did our country, and all of us, a great disservice by apparently bowing to political pressure and opening up the gates of torture. As a result, these lawyers helped drag our good name and honor (hard-earned) as a country through this muck.

    Shame on them.

  2. Jean says:

    I just read the article by Balkin that your article linked to. Balkin is fantastic! I read also his article about The facts of Marbury v. Madison. It is the best description I’ve ever read of that case. I have long found Marbury fascinating for this reason and have referred to it when I only semi-facetiously say that ‘law is politics’.

  3. chad says:

    The only way I have been able to reconcile these memos with the reputations of the lawyers who prepared them is to assume that they were acting as criminal defense lawyers preparing a defense for acts already taken. Viewed in that light the opinions represent fairly decent lawyering. Viewed in any other light one can only conclude that the authors need another trip through law school.

  4. Katherine says:

    The “organ failure and death” section was also shamefully lousy as well as just shameful. What I wrote at the time:

    “I had wondered before where they came up with “the level [of pain] that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure,or serious impairment of body functions” as the definition of “severe pain.” I got the answer on pages 5-6: it’s mostly from a 2000 provision of the U.S. code that defines a medical emergency for health coverage purposes. There are several problems with this:
    a) It appears that the health care law was passed years after the torture convention legislation.
    b) It’s a completely different subject matter and context. The risk of organ failure and death obviously is quite relevant in defining an emergency medical condition; it’s not clear why it would be relevant in defining “severe pain” or “torture.” I would also submit that, there is no f*cking way that one single legislator voting on the health care bill thought that line had any relevance whatsoever in defining torture down.
    c) Even the health care law law does NOT define “severe pain” as “the pain associated with death, organ failure, yadda yadda.” Rather, it defines an “emergency condition” as one that manifests itself in acute symptoms “including severe pain”; and that could result in death, organ failure, or serious impairment in bodily functions without medical attention.

    If I passed a law defining “border collies” as “dogs that are black and white and herd sheep”, would it prove that no brown or grey dogs could herd sheep? If I passed a law that defined statutory rape as “having sex with a girl under 18”, would that prove that sex had to involve a girl under 18? Because that’s essentially the logic that this section uses.

    Aside from the health care statute, they rely on very carefully chosen dictionary definitions. Hmm, I wonder why they needed to go all the way back to 1935 to find a dictionary that defined “severe”…

  5. Joe says:

    Editorials like this suggest that “respected law scholars” have certain blind spots. For instance, Professor Eugene Volokh surely fits the bill, but on various matters involving this president he surely appears to go off the deep end. This results in detailed, scholarly discussions on statutory rape and the need to allow even some speech that is sure to promote criminal activity, but opposes the Supreme Court decisions on the enemy detainees, a matter he is loathe to even discuss.

    Liberal respected law scholars have similar blind spots, surely, so it’s not just a partisan thing.

  6. Pingback: The Volokh Conspiracy

  7. MP says:

    If it turns out someday that science proves that cerebral paulsy is a genetic disease, will John Edwards give back all the money he made? Wouldn’t it be immoral for him to keep it?

    A criminal defense attorney can spend an entire career and never have a client who is truly innocent. Does that make him immoral for representing his clients?

    Suppose Al Franken alleges that he saw Bush himself actually order the abuses in abu gharib. Bush’s lawyer would be immoral for bringing forth arguments such as those in the memos as a defense? The lawyers for the soldiers on trial?

    Talk about pot calling the kettle black.

  8. Phill says:

    I don’t see the comparison to criminal law. It is clear that a defense attorney is an advocate. But this is not what the OLC was tasked with in this case, they were meant to be producing an opinion of law.

    IANAL but when I ask for an opinion on whether something is legal that is what I want. I want the lawyer to give me an honest opinion as to a) whether that something is legal according to the standards commonly applied in the courts and b) the likelihood that the courts are going to accept this position.

    Law is a very empirical profession, there is no ‘right’ answer in the sense of a universal truth, there are merely answers that the courts find persusive and arguments that they reject.

    I suspect that Froomkin in right in his guess that the Yoo memo is an attempt to justify attrocities that had already taken place. But equally Yoo clearly understood that the purpose of the memo was to facilitate and enable further attrocities. That makes him worse than a bad lawyer, he is an accomplice. He is every bit as guilty of a war crime as the soldiers who performed them and the officers who either ordered them, or knowing that they were occuring failled to stop them.

    Yoo was looking for a pretext, not giving an honest opinion.

  9. Phill says:

    I don’t think I quite made the point I wanted to about good faith.

    There are basically two reasons for asking for a legal opinion, the first is if you are planning to do something and you want to know if it is in fact legal. The second is when you want to do something that you suspect might result in a legal challenge and you want to establish proof that you were acting in good faith.

    I do not see the value of the Yoo memo in either situation. As a matter of law it is clearly wrong. US treaties are part of US law and the US has ratified numerous treaties prohibiting torture. Moreover the entire point of the bill of rights was to prevent the exact type of abuses that the Bush administration committed.

    I don’t see the Yoo memo having the slightest value in the second case because it is clearly offered in bad faith. The idea that the US constitution founded on the principles of checks and balances allows the executive branch to commit torture for any purpose, let alone the recreational uses at Abu Ghraib is utterly fantastic.

    So what happens to a lawyer who offers an opinion of the second type in the context of a real estate or accounting scheme? The IRS is currently taking the opinion that a law firm that charges $25,000 for a photocopied opinion to the effect that a tax evasion scam is legal can be charged with conspiracy since the scam is clearly illegal and any lawyer should know that even if they are not being paid a ridiculous sum for a trivial task.

    I think that some form of inquiry is inevitable [I do not consider the current whitewash to be an inquiry]. Under the most likely scenario Bush loses the election in November and anyone who has not been pre-emptively pardoned is investigated by some form of independent prosecutor. If Bush manages reappointment an ugly situation in the 2006 mid terms is inevitable, there is no way that a currency crisis can be held off for long without a dramatic reduction in the deficit which is only possible if taxes are increased sharply – probably above Clinton levels. In that scenario I expect the Democrats to take the House and Senate and for impeachment proceedings to start.

  10. Goldberg says:

    As a 2003 grad of the University of Chicago, it just sickens me to keep seeing my profs names (Goldsmith, now the Verm and Little Posner) on statements that defend torture. And Woo was visiting at U of C this year. And these were people I respected. It makes me feel physically ill.

    Thanks for your insights, Prof. Froomkin.

  11. dd says:

    Dear Goldberg:
    I am a 25+ UC law school grad who suffered through Posner the elder. The only moral is money; everything else is mere detail.

  12. MP says:

    dd-amen, bro

  13. Evelyn Blaine says:

    Just happened to notice that John Yoo has a new article, “Transfering Terrorists” (79 Notre Dame L. Rev. 1183 [2004]) and he hasn’t backed down an inch on his notion of the imperial presidency:

    “The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to the President by virtue of the Commander in Chief Clause. Moreover, it is an area in which the President enjoys exclusive authority, as the power to handle captured enemy soldiers is not reserved by the Constitution in whole or in part to any other branch of the government. […] Article I, Section 8, Clause 12, which vests Congress with the authority to “raise and support Armies,” […] and Clause 14, which vests it with power to “make Rules for the Government and Regulation of the land and naval Forces,” […] might also be thought to confer on Congress the power to promulgate prisoner of war policy. Using its funding power, Congress might attempt to place legislative riders on military appropriations that would seek to require certain treatment of prisoners of war. It is subject to serious constitutional question whether Congress can use the appropriations power to interfere with areas of plenary presidential power, but whatever the answer to that question, Congress has made no attempt to do so with respect to prisoners of war. It is also possible that Congress could attempt to use its constitutional authority to make rules for regulation of the military to establish standards for prisoner detention and transfer. Congress’s power on this point is likely limited to the discipline of U.S. troops, and probably does not extend to issues such as the rules of engagement and treatment concerning enemy combatants, but again Congress has not enacted any such statute.” Id. at 1201-1202.

    Same old same old: construe every single provision in favour of the executive branch, knock CIL and treaty commitments down to the absolute minimum, throw in a lot of words like “plenary” and “exclusive” (I am reminded of Don Ferenbacher’s comment that one of the signal traits of Roger Taney’s writing style was the attempt to buttress bad arguments with grandiose adjectives … ), add an occasional “it is likely that” to tone down the stuff that doesn’t pass the laugh test even among those who have drunk the Kool-aid. One really would think that it would be cheaper just to write a computer programme to spit this stuff out.

    But I recommend at least looking at the whole article: 100% continuous with the mindset of the torture memos.


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