BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW Vol. XXXII Spring 2009 No. 2 The Pen, the Sword, and the Waterboard: Ethical Lawyering in the “Global War on Terrorism” The Role of Lawyers in the Global War on Terrorism Michael B. Mukasey [pages 179–186] Abstract: The following article is edited remarks from Attorney General Mukasey’s Commencement address at Boston College Law School on May 23, 2008. His remarks focus on the role and ethics of lawyers in the Global War on Terrorism. Attorney General Mukasey contends that law- yers must faithfully adhere to the law, especially in the national security context where the questions are complex, the stakes are high and the pressures to do something other than adhere to the law are great. At- torney General Mukasey argues that political and public pressure on na- tional security lawyers can lead to “cycles of timidity and aggression,” and that scrutiny of their work, given the threats facing the country fol- lowing September 11, 2001, must be conducted responsibly, with an ap- preciation of its institutional implications. SYMPOSIUM ARTICLES Introduction: Law, Torture, and the “Task of the Good Lawyer”—Mukasey Agonistes Daniel Kanstroom [pages 187–202] Abstract: Following September 11, 2001, there was a challenge to the role of law as a regulator of military action and executive power. Government lawyers produced legal interpretations designed to authorize, legitimize, and facilitate interrogation tactics widely considered to be illegal. This raises a fundamental question: how should law respond to such flawed in- terpretation and its consequences, even if the ends might have seemed necessary or just? This Symposium examines deep tensions between competing visions of the rule of law and the role of lawyers. Spurred by a controversy over the selection of then-Attorney General Michael Mukasey as commencement speaker, the goal was to examine such basic and chal- lenging questions. What is the optimal relationship among policy, legal interpretation, and ethics? What ethical norms should guide government lawyers? Attorney General Mukasey agreed to publish his commencement address as part of the Symposium. Participants were asked to read it and, if they wished, to use it as a touchstone for their analyses of the questions it raised. On “Waterboarding”: Legal Interpretation and the Continuing Struggle for Human Rights Daniel Kanstroom [pages 203–222] Abstract: While some aspects of the “waterboarding” debate are largely political, the practice also implicates deeply normative underpinnings of human rights and law. Attorney General Michael Mukasey has steadfastly declined to declare waterboarding illegal or to launch an investigation into past waterboarding. His equivocations have generated anguished controversy because they raise a fundamental question: should we bal- ance “heinousness and cruelty” against information that we “might get”? Mr. Mukasey’s approach appears to be careful lawyering. However, it por- tends a radical and dangerous departure from a fundamental premise of human rights law: the inherent dignity of each person. Although there is some lack of clarity about the precise definition of torture, all is not vagueness, or reliance on “circumstances,” and post hoc judgments. We have clear enough standards to conclude that waterboarding is and was illegal. Official legal equivocation about waterboarding preserves the po- tential imprimatur of legality for torture. It substitutes a dangerously fluid utilitarian balancing test for the hard-won respect for human dignity at the base of our centuries-old revulsion about torture. That is precisely what the rule of law (and the best lawyers) ought not to do. Attorney General Mukasey’s Defense of Irresponsibility Kent Greenfield [pages 223–230] Abstract: Attorney General Mukasey’s commencement speech at Boston College Law School did a disservice to the institution. First, it gave a plat- form to one whose position on torture is contrary to the humanitarian values of the school. Second, by encouraging students to divorce their own morals from their legal reasoning and simply “say what the law is,” it reduced the practice of law to a mere exercise in research, devoid of any of the principles for which the school (and legal education in general) stands. This Article addresses two issues surrounding Attorney General Michael Mukasey’s invitation to speak at Boston College Law School. First, his invitation undercut what we teach about the role of the lawyer. Second, the speech he gave was insulting to our graduates and unhelpful to our pedagogical goals. A Transatlantic Divide on the Balance Between Fundamental Rights and Security Lorenzo Zucca [pages 231–240] Abstract: The lawyers of the Bush Administration have taken criticism for giving legal advice that some commentators have argued was unethical. In prosecuting the war on terror, the reaction within the United States was different than that of many European countries. In comparing the belief systems underlying the different reactions, this Article argues that the European response, which is due in part to their longer experience with terrorism and a greater commitment to international law is the healthier one. Ethical lawyers need to use good faith in giving their advice and be prepared to justify their decisions or perhaps be criminally or civilly liable. Going Forward: Improving the Legal Advice of National Security Lawyers William J. Dunn [pages 241–274] Abstract: Attorney General Mukasey was correct when he noted that na- tional security lawyers traditionally oscillate between aggression and timid- ity. Debates about which extreme is “better,” however, miss the larger point; namely, that these cycles are driven by factors that the competent national security lawyer has a duty to understand. Such a thorough knowl- edge allows lawyers in this field to dampen the harmful oscillation and render the best legal advice possible. After identifying factors that affect the rendering of such counsel, the author makes several specific policy recommendations that will assist lawyers—who are “uniquely suited to bear this responsibility” —in this critical task. The Role of the Client: The President’s Role in Government Lawyering Gabriella Blum [pages 275–288] Abstract: Discussions of whether Bush and Clinton administration lawyers have acted ethically have missed a fundamental point about the attorney- client relationship. It is the client—in this case, the government—who is ultimately responsible for making policy decisions, not the attorney. Too often, the question of what is “legal” has been substituted for what should actually be done, especially in the United States, where “legal” and “desirable” have become so intertwined. Governments should consult with attorneys, but should also be prepared to implement whatever policies they believe are “right,” and if necessary to explain any departures from what is “legal” to the pubic, to whom they are ultimately accountable. The International Proscription Against Torture and the United States’ Categorical and Qualified Responses Christopher B. Shaw [pages 289–304] Abstract: Although the prohibition against torture is a jus cogens and pro- scribed by multiple international treaties and United States law, such bans did not prevent the torture of detainees in United States’ custody. For a state truly to protect people from torture, it must rely less on definitions and prohibitions and turn to leadership and policy; proscriptions by themselves cannot stop torture—only leadership and policy can. In the case of detainees held by the United States during the war on terror, presidential leadership created an environment that allowed torture, and it was not curtailed until presidential leadership stopped it. A Lament for What Was Once and Yet Can Be Hon. William G. Young [pages 305–330] Abstract: In the wake of 9/11, the American people showed unwavering faith in justice, fairness, and the rule of law through their steadfast service to the legal system. Yet one of the Bush administration’s first orders in the new “war on terror” was effectively to strip the courts and the juries of their role in the “trials” of our enemies, instead creating streamlined mili- tary tribunals. This diminished role of the judiciary is unfortunately just the latest feature in a disturbing trend in the federal district courts, which has seen the process of fact-finding in open court exchanged for a reflec- tive in-chambers review of written submissions, and the trial of actual dis- putes replaced with “litigation management.” Most shocking is that the diminishment of the traditional American trial has been facilitated by the judiciary’s own institutional policies. Judge William G. Young of the United States District Court for the District of Massachusetts makes a plea to all branches of government and the American people to halt the ero- sion of the judiciary and return to the founding principles of our democ- racy. NOTES Frozen Obligations: Russia’s Suspension of the CFE Treaty as a Potential Violation of International Law Adam Collicelli [pages 331–352] Abstract: As the world witnesses renewed displays of Russian military ag- gression, the importance of multilateral arms treaties is illuminated. This Note argues that Russia’s suspension of the Treaty on Conventional Armed Forces in Europe was likely an illegal act, violating both the ex- plicit terms of that treaty and the law governing international treaties, generally. The United Nations, NATO, and other world leaders