INTRODUCTION :: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.”
Abu Ghraib is one of the world’s most notorious prisons. Under Saddam Hussein, it was the sight of atrocious acts of torture, weekly executions, and inhumane living conditions. When coalition forces moved in after the fall of Saddam Hussein in April 2003, they repaired the old prison and added a medical center so that it could be used as a United States military prison. Shockingly, in April 2004, CBS aired grotesque pictures of abuse of Iraqi prisoners at the hands of United States soldiers at Abu Ghraib. Some pictures showed naked Iraqi prisoners piled on top of one another and forced to simulate sexual acts while American soldiers stood in the background smiling. In June of 2004, with these shocking pictures still fresh in American minds, The Washington Post released an August 1, 2002 memorandum (the Torture Memo) that had been principally drafted by John Yoo, signed by former Assistant Attorney General Jay S. Bybee, and addressed to Alberto Gonzales, the President’s legal counsel. The authors of the Torture Memo argued that torture may be justified if done pursuant to the President’s power as Commander in Chief.
The Torture Memo was a response by the Office of Legal Counsel (OLC) to a CIA request for legal advice regarding standards of conduct for interrogation. In the Torture Memo, the OLC first argued that although 18 U.S.C. §§ 2340-2340A criminalize torture, those sections do not prohibit cruel and inhumane treatment. The OLC then argued for a very narrow definition of torture, which includes only the most extreme acts that are specifically intended to inflict severe mental or physical pain and suffering. Furthermore, according to the OLC, even if interrogation techniques were found to constitute torture, the rules proscribing torture would be unconstitutional as infringing on the President’s inherent powers. Finally, the OLC argued that if all else failed, the President could claim either self-defense or necessity to justify the use of torture.
When The Washington Post published the Torture Memo on June 13, 2004, the OLC’s narrow definition of torture shocked the consciences of people around the world and incited much criticism. The Torture Memo shocked many lawyers in particular, not only because of the narrow definition of torture but also because of its broad interpretation of presidential powers. There certainly are different views on the extent of presidential powers, but many have argued that the view expressed in the Torture Memo is one held by only a minority of legal scholars.
Considering the public outrage that ensued after The Washington Post published the Torture Memo, it is not surprising that the OLC withdrew the Torture Memo in June 2004. On December 30, 2004, the OLC issued a memorandum (the Replacement Memo) to replace the Torture Memo. In the Replacement Memo, the OLC defined torture much more broadly than it did in the Torture Memo and concluded that it was unnecessary to address issues of presidential powers because the President had unequivocally stated that the United States would not participate in torture.
Although the Torture Memo is no longer in effect, it remains necessary to contemplate its ramifications and the responsibility of its authors. As 130 lawyers wrote in their statement on the Torture Memo, “[t]he belated repudiation of the August 2002 memorandum . . . is welcome, but the repudiation does not undo the abuses that this memorandum may have sanctioned or encouraged during the nearly two years that it was in effect. The subsequent repudiation, coming after public outcry, confirms its original lawless character.” Therefore, this Note will examine the professional responsibility of the authors of the Torture Memo at the time of its writing.
While lawyers holding a minority viewpoint are free to express their opinions and are even free to argue their theories in defense of their clients (so long as it has some basis in law and fact), the OLC’s arguably one- sided Torture Memo sparked controversy. The memo appeared to be more a piece of persuasive advocacy than a thoughtful consideration of the arguments. This type of prospective advocacy raises several ethical issues, many of which may require answers too speculative to resolve in this Note. First, was the OLC’s advice on the breadth of presidential powers in clear contradiction to the governing law? Second, did the OLC intend to “cover” the actions of the President? In other words, by telling the President that he has broad powers and that torture is defined narrowly, was the OLC effectively providing him with the defense of reliance on the advice of counsel? Third, by the very act of writing the Torture Memo, did the OLC intend to provide the President with an opinion akin to binding legal precedent that would guarantee adherence to the torture policy by the entire federal government? Finally, if the answer to any of these questions is “yes,” did the OLC lawyers assist or counsel their client in conduct that the lawyers knew to be criminal or fraudulent in violation of the Model Rules of Professional Conduct (the Model Rules)?
All of these issues cannot entirely be resolved in this Note because they involve questions of intent that would be difficult to prove even in a courtroom. Nevertheless, this Note will discuss each of these issues to explore the potential extent of the ethical violations involved in the writing of the Torture Memo. More broadly, this Note attempts to address both the conflicting ethical concerns that exist for all lawyers and, in particular, some of the special ethical concerns facing lawyers in the OLC. While other articles have examined the OLC Torture Memo from a moral perspective, this Note focuses on the professional responsibility of the lawyers as specifically mandated by the Model Rules.
Part II will briefly describe the role of the OLC and the often-conflicting duties that arise therein. To provide a background for analyzing the advice in the Torture Memo, Part III will discuss the existing law that defines the scope of presidential powers. Part IV will describe in more detail the advice given in the Torture Memo regarding the scope of presidential powers. Part V will describe the relevant provisions of the Model Rules and the corresponding case law. Part VI will analyze the advice given by the OLC regarding presidential powers through the lens of the lawyers’ responsibilities under the Model Rules. Finally, Part VII will offer possible solutions to the professional responsibility dilemma demonstrated in the Torture Memo.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital