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The Ethics of the Torture Lawyers (A Response to Professor Hatfield)

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The Ethics of the Torture Lawyers (A Response to Professor Hatfield) Copyright 2009 by Northwestern University School of Law Vol. 104 Northwestern University Law Review Colloquy DEFERENCE TO CLIENTS AND OBEDIENCE TO LAW: THE ETHICS OF THE TORTURE LAWYERS (A RESPONSE TO PROFESSOR HATFIELD) W. Bradley Wendel* I. INTRODUCTION In the early months of the Obama administration, we are learning a great deal more about the previous administration‘s program of using ―en- hanced interrogation techniques‖ on alleged al-Qaeda detainees.1 On April 16, 2009, the new administration released to the public several memos, pre- pared by lawyers at the Office of Legal Counsel (―OLC‖) in the administra- tion of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture. I and many others have criticized the quality of legal reasoning in previously dis- closed memos,2 and it is now conventional wisdom that something went ter- ribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues. At the time of this writing, it remains uncertain whether an investigative report of the Jus- tice Department‘s Office of Professional Responsibility (―OPR‖) will be re- leased to Congress, and whether there will be a public version of the report.3 * Professor of Law, Cornell University. 1 See Mark Danner, US Torture: Voices from the Black Sites, NYBOOKS.COM, Apr. 9, 2009, http://www.nybooks.com/articles/22530 (link). In a series of blog postings and print articles, Scott Hor- ton and Andrew Sullivan detailed the origin of the euphemism ―enhanced interrogation techniques.‖ See, e.g., Scott Horton, Defending Enhanced Interrogation Techniques, HARPERS.ORG, June 15, 2007, http://www.harpers.org/archive/2007/06/hbc-90000279 (link); Andrew Sullivan, Bush’s Torturers Fol- low Where the Nazis Led, TIMESONLINE, Oct. 7, 2007, http://www.timesonline.co.uk/tol/comment/columnists/andrew_sullivan/article2602564.ece (link). 2 See, e.g., David Luban, The Torture Lawyers of Washington, in LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 162 (2007); Scott Horton, Through a Mirror, Darkly: Applying the Geneva Conven- tions to “A New Type of Warfare,” in THE TORTURE DEBATE IN AMERICA 136 (Karen J. Greenberg ed., 2006); W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67 (2005) (link); Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681 (2005) (link). 3 See Charlie Savage & Neil A. Lewis, Release of Memos Fuels Push for Inquiry into Bush’s Ter- ror-Fighting Policies, NYTIMES.COM, Mar. 3, 2009, http://www.nytimes.com/2009/03/04/washington/04legal.html (link). 58 NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY Not surprisingly, the OPR report is rumored to be highly critical of the con- duct of the lawyers who prepared these documents.4 Professor Hatfield concludes, in my view correctly, that the legal anal- ysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations. There are two strands to Professor Hatfield‘s critique of the advising process. The first is positive, or empirical, and the second is normative. The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia.5 The normative claim is that the profes- sion‘s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrong- doing.6 I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield‘s proposed reform is much too strong. He would have lawyers act directly on the claims of their own con- sciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship).7 This is sur- prising given his diagnosis of the reason for the bad lawyering in the OLC memos: I believe these lawyers began with the objective of justify- ing torture. They concluded that they were obligated to justify torture, and then they set out to do so. Whoever was ultimately responsible for requesting the Torture Memo ap- parently had such an objective, and the lawyers . ac- cepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument.8 4 See, e.g., David Johnston & Scott Shane, Interrogation Memos: Inquiry Suggests No Charges, NYTIMES.COM, May 6, 2009, http://www.nytimes.com/2009/05/06/us/politics/06inquire.html (link). 5 Michael Hatfield, Professionalizing Moral Deference, 104 N.W. U. L. REV. COLLOQUY 1, 4 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/25/LRColl2009n25Hatfield.pdf (link). 6 Id. at 8–9. 7 See id. at 11. 8 Id. at 3. I am not quite sure how to square this passage with what is apparently a critique offered later in the paper of the process of intentional suspension of personal moral identity in favor of the moral conclusions of someone else. Id. at 6. If the problem with the OLC memos is that they were driven by the moral convictions of the lawyers, then presumably the response is to recommend suppression of or- dinary (or first-order) moral reasoning in favor of the reasons given by someone or something else—that is, deference to authority. http://www.law.northwestern.edu/lawreview/colloquy/2009/29/ 59 104:58 (2009) Deference to Clients and Obedience to Law An appeal to conscience would therefore entrench the problem identi- fied by Professor Hatfield. The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law. A more general theoretical flaw in Professor Hatfield‘s argument is suggested by a polemical sentence near the end of his essay: ―It should not be controversial to claim that the rule of law is better protected by those who are responsive to conscience than it is by those who intentionally dis- regard conscience for pay and promotions.‖9 Leaving aside the ―pay and promotions‖ bit for a moment, it actually is quite controversial to claim that the rule of law, as distinct from ordinary morality, is well served by direct- ing officials, including judges and lawyers, to refer to conscience when de- ciding how to act. The whole point of the rule of law is to limit the authori- authority of actors to make all-things-considered judgments about what ought to be done. Insofar as one wishes to claim that an action was lawful (as opposed to morally right), one is required to act on the basis of certain reasons, namely those validated in the appropriate way by the legal system. The rule of law will not be well protected by asking lawyers to act directly on the requirements of morality. Morality may be better protected under Professor Hatfield‘s approach, but that is a different matter. II. THE CAUSAL STORY How did extremely bright, talented lawyers bungle the legal analysis so badly in the torture memos? It is not as though the OLC employs hacks— the Office has a tradition of hiring only the best and the brightest in the le- gal profession. Professor Hatfield argues that the involvement of elite gov- ernment lawyers in the torture memos scandal is a failure of legal education. The aspiring lawyer is trained to ―suspend [her] personal moral instincts and to have faith that the legal system accomplishes a greater mor- al good by [her] accepting a truncated personal moral role . .‖10 But there is more. More than a critique of education based on books, essays, class- rooms, and discussion groups, this is an indictment of modernity as a whole.11 Although Professor Hatfield seems to make a broad attack on an entire cultural tradition, I will focus here on the claim that legal education encou- rages lawyers to inhabit a simplified moral universe. Professor Hatfield‘s essay takes the view that law school tends to inculcate the attitude that the job of lawyers is to mold the law into whatever shape suits the client‘s in- terests.12 That answer may have a jurisprudential component, in the form of 9 Id. at 11. 10 Id. at 6. 11 After all, as Professor Hatfield says himself, ―The German intellectual heritage did not prevent Nazism, and enlightened French culture did not prevent the French from torturing Algerians.‖ Id. at 9. 12 Id. at 6. http://www.law.northwestern.edu/lawreview/colloquy/2009/29/ 60 NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY a claim that authoritative legal materials underdetermine legal analysis such that a judgment that the law permits such-and-such will often be essentially a political determination. Applied to the OLC advising case, the jurispru- dential position is backstopped by democratic theory: if the law may sup- port a range of reasonable interpretations, then executive branch lawyers must worry about acting undemocratically if they advise the President against doing something that he was elected to do and that is (at least argu- ably) legally permissible.13 More broadly, Professor Hatfield describes a version of what has come to be known as the standard conception of legal ethics.14 The standard conception holds that a lawyer should be a ―neutral partisan‖—that is, a lawyer should defend her client‘s interests in litigation, press for lawful advantages in transactions, and prospectively counsel clients about the legality of their actions, all with reference to the interests of the client, not the requirements of ordinary morality.15 Even the most vigorous defender of the standard conception must ad- mit that there are limits.
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