The Torture Memos: just following orders, just following advice?

Human Rights Watch have argued in a report just published that there should be a criminal investigation of various US officials involved in developing the US government’s torture doctrines under the Bush Administration. It’s a timely reminder of the sometimes dramatic conflict between a lawyer’s duty to their client and their duty to the public interest or the law. They say:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II(Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

The tactic of using legal advice to sanitise wrong doing and exculpate clients from criminal prosecution (I cannot have been guilty, I had legal advice that said what I can do is lawful) comes in for particular criticism:

 Moreover, while Bush administration officials have claimed that detention and interrogation operations were only authorized after extensive discussion and legal review by Department of Justice attorneys, there is now substantial evidence that civilian leaders requested that politically appointed government lawyers create legal justifications to support abusive interrogation techniques, in the face of opposition from career legal officers.

They suggest that such an approach may have amounted to a criminal conspiracy (whilst also carefully stating that “Human Rights Watch expresses no opinion about the ultimate guilt or innocence of any officials under US law, nor does it purport to offer a comprehensive account of the possible culpability of these officials or a legal brief.”). Their position seems to be somewhat in opposition to the Obama administration’s approach which was:

“to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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6 Responses to The Torture Memos: just following orders, just following advice?

  1. It seems a bit much to say that those giving legal advice should be held accountable for the orders given by others based on that advice.

    I haven’t the foggiest whether US law permits waterboarding, for example, but if a lawyer reviews the law and the proposed interrogation technique and reaches a conclusion that it is permissible in law then why should he be placed in fear of giving that advice. Where does this end? If a future government in the UK decided to reinstitute hanging would the lawyers who drafted the Bill that became the Act of Parliament be held responsible for the death of an innocent man following a miscarriage of justice by yet another future government who once again banned hanging? Is the lawyer who advises that X financial vehicle is technically lawful guilty if his client then goes and uses that vehicle to pinch his investors money?

    If there is evidence of bad faith, but which I mean, a lawyer deliberately mis-interpreting or excluding relevant law/evidence to reach the conclusion his client wants then I can see why the lawyer could be guilty of something. But then again such a document would not be advice, it would simply be a work of fiction based loosely on fact a bit like all those American films that re-write history to suit their dramatic and story-telling needs.

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