If you've been following the matter of the "torture memos" recently released by the Obama administration you know that the President has determined that CIA operatives following legal guidance provided by the (previous) Administration should not be subject to prosecution. But apparently that leaves open the possibility that officials who approved the "enhanced interrogation" policies might be prosecuted. That means the lawyers.
There are a number of ideas involved. the Justice Department's Office of Professional Responsibility has already prepared a report regarding whether the White House attorneys who wrote the memos violated professional standards. Bush administration officials objected to the draft report being released a few months ago, but Indications are that the report will be issued soon, and will be quite harsh.
This report could be grounds for disciplinary action by a state bar. Since one of the lawyers involved is now a federal judge, there has been talk of impeachment.
What do you think?
{ 17 comments… read them below or add one }
Under what theory do you think they could prosecute the attorneys? Would it be conspiracy to violate the Torture Act, or is there an another statute that governs counseling to commit a crime?
I'd also be interested in hearing what professional conduct rules you think they could be liable for in a disciplinary action? The competence rule? The misconduct catchall rule?
There never was any reasonable doubt that chaining people in a standing position and depriving them of sleep for more than seven days at a time, keeping them naked and spraying them with 40 degree water for 20 minutes at a time, confining them in dark boxes for 18 hours a day, and suffocating them by means of what has always been called "water torture" constitutes torture. These acts are punishable by up to 20 years in prison, and, if death results, constitute a capital offense.
Jay Bybee, John Yoo, Stephen Bradbury, and other attorneys in the Bush "Justice Department" were not simply offering mistaken advice to a client as is the case of the usual attorney. They are the client. They are part of the United States government, and their approval was necessary for the torture to go forward. Nor were they advising the government about the legality of actions in the past; instead they were granting permission for future conduct to proceed. In my opinion, the government should not have to prove that these men acted in bad faith – that they were insincere in advising the government that it was legal to torture prisoners. To obtain a criminal conviction it should be enough to prove that they "specifically intended" that acts of torture should occur.
I am not well enough versed in the field of professional responsibility to know whether it makes more sense to proceed against these lawyers on the ground of incompetency or culpability. It is much more clear-cut with respect to the physicians and psychologists who designed and participated in acts of torture. The AMA and the APA specifically prohibit participation in acts of torture and as they are identified those medical professionals will lose their licenses.
The most important consideration is to make it impossible for this to ever happen again. Even if we do not prosecute the CIA agents who committed these horrific acts, we can prevent future Presidents from ordering prisoners to be tortured by ensuring that if doctors and lawyers facilitate these acts their careers are over.
Furthermore, under international law torture is a crime that can be prosecuted anywhere. Every country has jurisdiction to try these individuals. They would be well-advised not to leave the United States – ever.
Finally, the mere disclosure of these memos means that these men will carry the taint of their participation in torture for the rest of their lives. What legitimate law firm or corporation or medical practice or hospital will want to be associated with these individuals? As Brandeis said, "Sunlight is the best disinfectant."
Professor Huhn,
Your statement that the attorneys “are the client” seems contrary to Model Rule 1.13, which states, “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” Even if they are part of the United States government, I think they would still need to have themselves acted in violation of the torture statute to be held criminally liable. The mere fact that the government as a whole violated a criminal law would not subject any individual government employee to criminal liability unless the individual’s conduct satisfied all elements of the crime.
I’m also not sure what the basis of your statement that they could be convicted if “they ‘specifically intended’ that acts of torture should occur.” To be liable under the torture act they would have to “commit[] or attempt[] to commit torture.” “Torture” is defined as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” I don’t think you can say that writing a memo is an act specifically intended to inflict severe physical or mental pain or suffering ([insert your own joke about the quality of legal writing here]). By your theory, could the attorneys be convicted of torture even if no one ever relied the advice to actually torture the victims?
Sounds like someone was turned down for that State Department job!
If, as Professor Huhn states, there is "no reasonable doubt" that the enhanced interrogation techniques against which he rails constitute torture, then why did not Congress, whose leadership from both parties was fully briefed, enact legislation to prohibit said techniques? Yet, one will search in vain for any bill to prohibit such techniques offered by Nancy Pelosi, Harry Reid, Barack Obama, or anyone else who now claims to be shocked or disappointed that the CIA got tough with some terrorists to prevent future attacks. If it is the time for witch-hunts, do not stop at the lawyers. Include Congress.
The terrorists, on the other hand, definitely engaged in torture. Remember Daniel Pearl? They torture and terrorize their co-religionists on a daily basis. Just look at what is happening in Pakistan.
The war on terror is neither a criminal justice matter nor a classic military enterprise. Thus, it should not be surprissing that those analytical frameworks do not easily fit the present circumstances.
One thing should be beyond any reasonable doubt. Our Government has both a moral and constitutional duty to defend the citizens and the country. We can debate whether the techniques employed on the three terrorists that were waterboarded constitutes terrorism. After all, they were not killed maimed or disfigured. And waterboarding devalues the term "terrorism" when compared with what the Taliban does on a daily basis.
The true moral outrage would be if the government had failed to use such techniques and, as a result, we had suffered another terrorist attack on the scale of 9/11.
The conduct of the government toward its suspects has been outrageous, but not nearly as outrageous as the bombing of a building filled with civilians including children, What I see as infinitely more outrageous is that no retribution was ever wrought upon any Arabian cities. Ryadh should have been obliterated. Afghanistan should have been obliterated.
The efforts of the Intellectual Liberals to paint Muslims as moderates would be comical were it not so treasonous. Having seen news footage of millions celebrating in the streets of Damascus at the time of 9/11, I would say the best definition of a moderate Muslim is one who lives in some place where there aren't very many other Muslims around to back him up.
Maybe we can someday prosecute lawyers who help tax dodgers evade IRS charges? Or public defenders who help murderers return to the streets? Or law blog hosts who provide information on how to best do so?
There was a great old song from 'The Mikado' where Koko, the Lord High Executioner, laments the slowness of his business and offers lists of people who would never be missed. I think Larry D. may be on the verge of adding some new verses. While you're at it throw in intellectuals who assume that if there's a war it must be our fault; who are contemptuous of Christianity but seem to love our enemies; candidates who denounce lobbyists and corrupt politicians and then hire them into cabinet posts. Revisionist historians and other so-called scholars who substitute political correctness for truth
"They'd none of them be missed;
They'd none of them be missed!"
Speaking of, why is the Obama Administration trying to limit Americans' right to speak to a lawyer?
http://www.huffingtonpost.com/2009/04/24/obama-legal-team-asking-s_n_191005.html
Seems like an interesting tidbit for a blog like this.
??? Didn't know they were.
According to the link:
"The Obama administration is asking the Supreme Court to overrule a 23 year-old decision that stopped police from initiating questions unless a defendant's lawyer is present, the latest stance that has disappointed civil rights and civil liberties groups."
Odd that it hasn't gotten much coverage. Well, not really.
I have never understood why the unjustifiable killing of innocents somehow justifies the killing of other innocents. Or why horrific and barbaric acts justify more of the same. We should do it to them because they do it to us?
Well, we are likely not to agree on that point. But one other question–where is the part where anyone on this blog has been "contemptuous of Christianity?"
Wars are to win; not to throw away on principle. Those who lose are generally stripped of any choices of principle by the victor. The last real war that we flat out won was WWII (excluding field exercises like Grenada). In WWII there was much said about strategic bombing, but in the end we won it by destroying cities.
As for the contempt for Christianity, you have to go to Al Quaeda; or perhaps just to Ryadh. They also are contemptuous of Women's liberation, Gay liberation, freedom of speech or religion, and pretty much everything we claim to stand for. If you happen to favor any of those causes you ought to write to Pres. O and his SecDef and urge upon them the words of Lincoln: "I will not give up this game while I have left a card to play."
"Liberals who seem to frown on Christianity,
And yet have lots of love for our nation's enemies,
They'd none of them be missed;
they'd none of them be missed."
"Wars are to win?" well…i could not have thought up a narrower outlook on life if I tried. It is rather obvious that you have an abundance of experience in the many theaters of combat. You gave yourself away by simplifying WWII to a child's game of "Risk". How would you solve the Iran problem? I am dying to know.
As for Larry D., i hope one day you are standing before the full weight of the legal system. And in that moment, i would love to hear how thin you resolve to "prosecute Public Defenders" is. My guess is, when put in that position, your appreciation for the Constitutional rights guaranteed to you by our founders will all of a sudden have value. Until then, keep hating.
In regards to the post…which is addressed to perspective lawyers. I would like to say thank you Professor Lee for bringing this relevant topic to the forum for intelligent discussion.
Regarding my opinion of the Judge who is on the hot seat. I find it hard to believe that when he was writing that memo, he did not have a "gut check" moment where he knew there could be consequences.
In conclusion, "They'd none of them be missed" only applies to people that subscribe to the novel notion of life after death. The rest of us know, that everyone is missed by someone.
Noah
I should probably leave this alone, but I can't help noting the irony:
"Liberals who seem to frown on Christianity,
And yet have lots of love for our nation's enemies"
Far from demonstrating contempt, loving your enemies exemplifies Christianity's most radical message.
You noticed that, did you? I believe George Will called it cognitive dissonance. There are many examples of it in the Liberal agenda.
What are you talking about, Noah? Who am I hating? Have you ever heard of hyperbole or sarcasm?
In any case, you don't seem very nice at all!