Torture and the Legal Pen
Jessie Allen, School of Law, University of Pittsburgh
BOOK THE FIRST. Chapter the seventh. Of the KING’S PREROGATIVE.
Blackstone Weekly is sorry for the long hiatus between entries. Given that this section of the Commentaries is all about the legal limits on executive power, I realized that I had to say something about the recently released torture memos, and it’s taken me this long to get some kind of grip on what I think about them. In this chapter, Blackstone explains that while the king himself (or herself — see my previous post, “Blackstone’s Sister”) is immune from legal liability, the people who advise him are not. If the king’s power is abused, his advisors will be called “to a just and severe account.” (p. 244) From there, you’d think it would be an easy segue to some trenchant remarks about how our own sovereign’s legal advisors failed in their duty to prevent a horrid abuse of arbitrary power. And there my troubles began.
My problem is that, unlike a lot of the legal experts opining on these memos, it is not at all clear to me what’s wrong with the legal analysis in what looks like the worst of them. Take the one written on August 1, 2002 that explains why the specific, horrific techniques the CIA plans to use are A-okay. I have no trouble seeing that that conclusion is wrong, or, rather, that it is WRONG! WRONG! WRONG! But I’m less sure that what’s wrong with it has much to do with any lawyer’s failure to correctly analyze the law or to go about that analysis in a legally ethical fashion.
This is disturbing. I mean, we’re talking here about a government attorney writing up a legal argument for why it is okay to put somebody into a box with insects. (Aug. 1, 2002 memo at 3) If I don’t know what’s legally wrong with that, what good is law to me? And what good am I to the law? And yet, I don’t know.
There are two main explanations I’ve heard from other lawyers about what went legally wrong here. Neither one seems right to me, but going over them helps illuminate the problem. One critique is that the lawyers who wrote the memos set out to give Bush administration officials what they wanted, i.e., a legal license to do the awful things the memos describe, rather than to faithfully interpret what the law would allow. David Luban, a well-known scholar of legal ethics has criticized the memos on this score. He says the memo writers failed in their professional duty to “tell it straight, without slanting or skewing.” (May 13, 2009 testimony before Judiciary Committee) Luban acknowledges that this can be hard to do in the sense that nobody likes to disappoint a client. But he seems to think that competent, honest lawyers can and should analyze the law relevant to a client’s desire in a ‘straight, unslanted’ way, unshaped by the client’s goals. I disagree.
I certainly agree with Luban (and the ABA) that a lawyer advising a client has a duty to give “candid advice” about the law even when “that advice will be unpalatable to the client.” (Id.) But I disagree that it is desirable — or possible — for a lawyer to ignore her client’s desire and produce a memo that would (as Luban contended in testimony attacking a precursor of the memos released last month) “say the same thing it would even if you imagine your client wants the opposite from what you know he wants.” (May 6, 2008 testimony) And I am mystified and exasperated by the suggestion that this kind of neutrality is, or should be, the professional standard.
A lawyer’s bottom line job — and ethical duty — is to help her client. Of course that doesn’t mean just telling the client what she wants to hear — partly because the lawyer has an ethical duty to be honest about what she believes the law says, but also because that wouldn’t really help the client. Clients need lawyers to give them a sense of how the client’s desires map onto the legal landscape — how existing and potential legal rules, policies and decisions might facilitate, block or shape what the client wants to do. Legal interpretation is worthless and deceptive if it ignores the aspects of the law that are problematic for the client’s project. But it would be perverse, and arguably unethical, for a lawyer to ignore the client’s goal as she went about interpreting the law.
More to the point, I don’t think that it is possible to produce this kind of perspectiveless view of law. Legal analysis is a matter of interpretation, and any interpreter has a point of view. If I reject the client’s perspective, whose outlook should I adopt? My own? That of some imagined tribunal? The average American? Honestly, it is not possible to write a memo that looks the way it would if I were trying to see if the opposite goal were legal, because there is no such memo. The law looks different depending on what you want to do — so those are two different memos. Now, that doesn’t mean that they should reach two different conclusions. A lawyer for a shopkeeper who wants an awning over her storefront might agree with the neighboring store owners that zoning law forbids it. But she should get to that position in spite of her efforts to find a valid interpretation of the law that would support her client’s goals, not because she ignored, or claimed somehow to transcend, those goals.
The question this raises, of course, is how the lawyer knows when to give up trying to get the law to take her client where she wants to go and tell the client that in her opinion it is just not possible. The second critique I’ve heard about the torture memos suggests an answer to this question: the lawyers writing these memos should have been able to tell that the interrogation methods they described were illegal by how hard they were having to work to prove that they were legal. This is the view put forward by Peter Shane, author of a recent book on executive power, who characterizes the memos as “about as monstrous a corruption of the lawyering process as one can imagine.” (Duke Executive Watch Blog) Professor Shane offers this advice for government lawyers: “If it takes you more than a paragraph to explain persuasively why something is not torture, it’s torture.” (Id.)
That certainly has a nice ring to it. But it just can’t be right that if it’s difficult to reach a legal conclusion, and requires a lengthy discussion to get there, that conclusion is necessarily wrong. It does mean that you can’t honestly or accurately present that conclusion as easy and unproblematic. But these memos don’t really give that impression; as Shane suggests, they are nothing if not effortful.
Professor Shane is right, though, that the most disturbing feature of these memos is the way they go on and on with obsessive specificity about the awful practices they describe, breaking them down into a series of detached details that create an oddly pornographic effect: “The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual’s face. The fingertips are kept well away from the individual’s eyes.” (Aug. 1, 2002 memo at 2.) So it’s appealing to think that’s how you know when you’ve gone wrong as a lawyer — when you read back over the memo, or opinion, or brief you’ve written and the factual details refuse to dissolve into the arguments, when you can’t escape a kind of fetishistic attachment to certain descriptions of objects, bodies, times, numbers, procedures. When that happens, maybe you ought to stop and think ‘hmm, something seems wrong here. . . .’