{"id":2929,"date":"2019-12-05T15:59:20","date_gmt":"2019-12-05T20:59:20","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2929"},"modified":"2020-09-23T20:35:25","modified_gmt":"2020-09-24T00:35:25","slug":"torture-and-the-legal-pen","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/12\/05\/torture-and-the-legal-pen\/","title":{"rendered":"Torture and the Legal Pen"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

BOOK THE FIRST. \u00a0Chapter the seventh. \u00a0Of the KING\u2019S PREROGATIVE.<\/em><\/a><\/p>\n

Blackstone Weekly is sorry for the long hiatus between entries. \u00a0Given that this section of the\u00a0Commentaries\u00a0is all about the legal limits on executive power, I realized that I had to\u00a0say something about the recently released\u00a0torture memos<\/a>, and it\u2019s taken me this long to get some kind of grip on what I think about them. \u00a0In\u00a0this chapter<\/a>, Blackstone explains that while the king himself (or herself \u2014 see my previous post, \u201cBlackstone\u2019s Sister\u201d<\/a>) is immune from legal liability, the people who advise him are not. \u00a0If the king\u2019s power is abused, his advisors will be called \u201cto a just and severe account.\u201d \u00a0(p. 244) From there, you\u2019d think it would be an easy segue to some trenchant remarks about how our own sovereign\u2019s legal advisors failed in their duty to prevent a horrid abuse of arbitrary power. \u00a0And there my troubles began. \u00a0<\/em><\/p>\n

My problem is that, unlike a lot of the legal experts opining on these memos, it is not at all clear to me what\u2019s wrong with the\u00a0legal\u00a0analysis in what looks like the worst of them. \u00a0Take the\u00a0one written on August 1, 2002<\/a>\u00a0that explains why the specific, horrific techniques the CIA plans to use are A-okay. \u00a0I have no trouble seeing that that conclusion is wrong, or, rather, that it is WRONG! WRONG! WRONG! \u00a0But I\u2019m less sure that what\u2019s wrong with it has much to do with any lawyer\u2019s failure to correctly analyze the law or to go about that analysis in a legally ethical fashion.\u00a0<\/em><\/p>\n

This is disturbing. \u00a0 I mean, we\u2019re 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<\/a>) \u00a0If I don\u2019t know what\u2019s legally wrong with that, what good is law to me? \u00a0And what good am I to the law? \u00a0And yet, I don\u2019t know. \u00a0<\/em><\/p>\n

There are two main explanations I\u2019ve heard from other lawyers about what went legally wrong here. \u00a0Neither one seems right to me, but going over them helps illuminate the problem. \u00a0One 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. \u00a0David Luban, a well-known scholar of legal ethics has criticized the memos on this score. \u00a0He says the memo writers failed in their professional duty to \u201ctell it straight, without slanting or skewing.\u201d (May 13, 2009\u00a0testimony\u00a0<\/a>before Judiciary Committee) Luban acknowledges that this can be hard to do in the sense that nobody likes to disappoint a client. \u00a0But he seems to think that competent, honest lawyers can and should analyze the law relevant to a client\u2019s desire in a \u2018straight, unslanted\u2019 way, unshaped by the client\u2019s goals. \u00a0I disagree.<\/em><\/p>\n

I certainly agree with Luban (and the ABA) that a lawyer advising a client has a duty to give \u201ccandid advice\u201d about the law even when \u201cthat advice will be unpalatable to the client.\u201d \u00a0(Id.)<\/em>\u00a0But I disagree that it is desirable \u2014 or possible \u2014 for a lawyer to ignore her client\u2019s desire and produce a memo that would (as Luban contended in testimony attacking a precursor of the memos released last month) \u201csay the same thing it would even if you imagine your client wants the opposite from what you know he wants.\u201d (May 6, 2008\u00a0testimony<\/a>) And I am mystified and exasperated by the suggestion that this kind of neutrality is, or should be, the professional standard.<\/p>\n

A lawyer\u2019s bottom line job \u2014 and ethical duty \u2014 is to help her client. \u00a0Of course that doesn\u2019t mean just telling the client what she wants to hear \u2014 partly because the lawyer has an ethical duty to be honest about what she believes the law says, but also because that wouldn\u2019t really help the client. Clients need lawyers to give them a sense of how the client\u2019s desires map onto the legal landscape \u2014 how existing and potential legal rules, policies and decisions might facilitate, block or shape what the client wants to do. \u00a0Legal interpretation is worthless and deceptive if it ignores the aspects of the law that are problematic for the client\u2019s project. \u00a0But it would be perverse, and arguably unethical, for a lawyer to ignore \u00a0the client\u2019s goal as she went about interpreting the law.<\/p>\n

More to the point, I don\u2019t think that it is\u00a0possible<\/em>\u00a0to produce this kind of perspectiveless view of law. \u00a0Legal analysis is a matter of interpretation, and any interpreter has a point of view. \u00a0If I reject the client\u2019s perspective, whose outlook should I adopt? \u00a0My own? \u00a0That of some imagined tribunal? \u00a0The average American? \u00a0 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. \u00a0The law looks different depending on what you want to do \u2014 so those are two different memos. \u00a0 Now, that doesn\u2019t mean that they should reach two different conclusions. \u00a0A lawyer for a shopkeeper who wants an awning over her storefront might agree with the neighboring store owners that zoning law forbids it. \u00a0But she should get to that position\u00a0in spite\u00a0<\/em>of her efforts to find a valid interpretation of the law that would support her client\u2019s goals, not because she ignored, or claimed somehow to transcend, those goals.<\/p>\n

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. \u00a0The second critique I\u2019ve 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. \u00a0This is the view put forward by Peter Shane, author of a recent\u00a0book on executive power<\/a>, who characterizes the memos as \u201cabout as monstrous a corruption of the lawyering process as one can imagine.\u201d (Duke Executive Watch Blog<\/a>) Professor Shane offers this advice for government lawyers: \u201cIf it takes you more than a paragraph to explain persuasively why something is not torture, it\u2019s torture.\u201d \u00a0(Id.<\/em>)<\/p>\n

That certainly has a nice ring to it. \u00a0But it just can\u2019t be right that if it\u2019s difficult to reach a legal conclusion, and requires a lengthy discussion to get there, that conclusion is necessarily wrong. \u00a0It does mean that you can\u2019t honestly or accurately present that conclusion as easy and unproblematic. \u00a0But these memos don\u2019t really give that impression; as Shane suggests, they are nothing if not effortful.\u00a0<\/em><\/p>\n

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: \u00a0\u201cThe facial hold is used to hold the head immobile. \u00a0One open palm is placed on either side of the individual\u2019s face. \u00a0The fingertips are kept well away from the individual\u2019s eyes.\u201d \u00a0(Aug. 1,\u00a02002 memo\u00a0<\/a>at 2.) \u00a0So it\u2019s appealing to think that\u2019s how you know when you\u2019ve gone wrong as a lawyer \u2014 when you read back over the memo, or opinion, or brief you\u2019ve written and the factual details refuse to dissolve into the arguments, when you can\u2019t escape a kind of fetishistic attachment to certain descriptions of objects, bodies, times, numbers, procedures. \u00a0 When that happens, maybe you ought to stop and think \u2018hmm, something seems wrong here. . . .\u2019 \u00a0<\/em><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh BOOK THE FIRST. \u00a0Chapter the seventh. \u00a0Of the KING\u2019S PREROGATIVE. Blackstone Weekly is sorry for the long hiatus between entries. \u00a0Given that this section of the\u00a0Commentaries\u00a0is...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2929","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Lf","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2929","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2929"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2929\/revisions"}],"predecessor-version":[{"id":3017,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2929\/revisions\/3017"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2929"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2929"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2929"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}