Monday, February 16, 2009

Torture & Bush's Lawyers

Michael Isikoff at Newsweek reports that the Office of Professional Responsibility, an internal Justice Department ethics watchdog group, is getting ready to submit its report on the performance of the White House Office of Legal Counsel, particularly with regard to torture issues. According to Isikoff
OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted
Would this be any surprise at all? I thought lawyers were supposed to act in the best interest of their clients. Here's what I'm guessing happened.

The president goes to the OLC and tells them about his plans for using questionable interrogation tactics, and of the need to use waterboarding on a few high level Al Qaeda prisoners. He tells them he wants to operate within the law, and asks them to come up with a legal finding that will protect the administration from charges of illegality. And he emphasizes the critical necessity of taking these measures in the aftermath of 9/11. John Yoo and others come up with a legal theory that supports the president's position. It boils down to this: torture is difficult to define and the techniques being used are not actually torture, they are merely "enhanced" or "coercive" interrogation methods. Therefore the administration actions are within the law. Legal problem solved.

Let's assume that's what happened. My response is a big, so what? That's what lawyers do. They find loopholes and interpretations to protect their clients. Even if you disagree with it, their interpretation is not unreasonable. Torture is difficult to define, and people strongly disagree on whether or not the specific techniques under consideration constitute torture. In my opinion, the only way the OLC lawyers acted unethically is if they themselves felt that the Bush administration actions would be illegal, and then, instead of resigning in protest, caved in and crafted a pliant legal argument that went against their own beliefs about the law. I'm not sure how anyone is going to prove that -- unless it is clear from their writings or other recorded statements. 


  1. The problem is that the OLC probably should have been aware that they weren't operating in a vacuum. Good lawyers will foresee all possible likelihoods and tailor their advice accordingly. Obviously if a lawyer is asked to give his opinion, he can do that, but he knows that his opinion may not be objectively 'right'. Ultimately it's the court's decision to decide whether his opinion was right, should it ever come to that.

    So I don't think foresight that the Bush administration's actions would be illegal need be the only situation in which the OLC's behavior could have been unethical. They could have simply neglected to inform the administration of the likelihood that their interpretation would be incorrect. The distinction I'm trying to make is slight, but I think it's real.

    Do you think the OPR is affected by partisan politics?

  2. Well, keep in mind that I'm speculating on what the OLC actually told the administration. I'm sure it was full of the usual legalese and cya statements.

    "They could have simply neglected to inform the administration of the likelihood that their interpretation would be incorrect. The distinction I'm trying to make is slight, but I think it's real."

    Maybe, although I think that's unlikely. I mean, even a layman should understand that an interpretation of that type isn't exactly rock-solid.

    "Do you think the OPR is affected by partisan politics?"

    I'm not sure but I'd say probably. I think Isikoff mentioned that the Bush administration reacted against parts of the report. So it's probably likely they were at least under some sort of pressure while Bush was president. It's hard to say what position the Obama administration would take now.