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.”[8] These statements themselves follow the Detainee Treatment Act of 2005, which provides a defense to criminal charges if the official, did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.[9]

HRW identify the problem as being:

…that the legal advice in question—contained in memoranda drafted by the OLC, which provides authoritative legal advice to the president and all executive branch agencies—itself authorized torture and other ill-treatment. It purported to give legal sanction to practices like waterboarding, as well as long-term sleep deprivation, violent slamming of prisoners into walls, forced nudity, and confinement of prisoners into small, dark boxes. Notably, all of the memoranda were later withdrawn by subsequent OLC officials during later periods in the Bush administration.

Led by Vice President Cheney’s legal counsel, David Addington, s enior administration lawyers—including then-White House counsel, and later attorney general, Alberto Gonzales—drafted a series of legal memoranda to build the legal framework for circumventing international law restraints on the interrogation of prisoners.[22] These memos essentially argued that the Geneva Conventions of 1949, the foundation treaties of war-time conduct, did not apply to individuals detained in connection to the armed conflict in Afghanistan.

A January 9, 2002 draft memo by John Yoo, deputy assistant attorney general in the OLC, advised the Defense Department that the Geneva Conventions did not apply to members of al Qaeda because it was not a state and thus not a party to the conventions. The memo said they also did not apply to the Taliban, as it could not be considered a government because Afghanistan was a “failed state.” The memo also argued that the president could suspend operation of the Geneva Conventions and that customary laws of war did not bind the US because they did not constitute federal law.[23]

William H. Taft, IV, the State Department’s legal adviser, warned the argument that the president could suspend the Geneva Conventions was “legally flawed” and the memo’s reasoning was “incorrect as well as incomplete.” The argument that Afghanistan as a “failed state” was no longer a party to the Geneva Conventions was, he said, “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.”[24]

In a key memo dated January 25, 2002, Gonzales urged the president to declare Taliban forces in Afghanistan and al Qaeda outside the coverage of the Geneva Conventions. This, he wrote, would preserve US “flexibility” in the “war against terrorism,” which “in my judgment … renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that US officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under US law if the conventions applied.[25]

Gonzales wrote “it was difficult to predict with confidence” how US prosecutors might apply the Geneva Conventions’ strictures against “‘outrages against personal dignity'” and “‘inhuman treatment.'” He argued that declaring that Taliban and al Qaeda fighters did not have protection afforded by the Geneva Conventions “substantially reduces the threat of domestic criminal prosecution.” Gonzales expressed to President Bush the concern of military leaders that these policies might “undermine US military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.”[26] Those concerns were ignored, but proved justified.

Secretary of State Colin Powell met twice with Bush to discuss his concerns about the Yoo memo. Gen. Richard Myers, the chairman of the Joint Chiefs of Staff, and other military leaders voiced similar concerns.[27] Powell argued that declaring the conventions inapplicable would “reverse over a century of US policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”[28]

In response to the objections of Powell and others, Bush slightly modified the proposed order, but did so in a manner that effectively denied protection to the detainees: on February 7, 2002, Bush announced that while the US government would apply the “principles” of the Geneva Conventions to captured members of the Taliban, it would not consider any of them to be prisoners of war (POWs) because the US did not believe they met the convention’s requirements of an armed force as they had no military hierarchy, did not wear uniforms, did not carry arms openly, and did not conduct operations in accordance with the laws and customs of war. He said the US government considered the Geneva Conventions inapplicable to captured members of al Qaeda, though “a s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”[29]:

Other memos addressed specific torture programmes. HRW report that

In his memoirs, Bush describes approving the waterboarding of Abu Zubaydah:

At my direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture.

This is a telling passage, a reminder of how legal advice can used to throw a switch that says this action is either right or wrong. Even where such advice is properly hedged with caveats, the client can still say: well the lawyers told me it was difficult but I could do it. HRW are seeking to mount an alternative view, that where lawyers and clients work together to subvert the purpose of the law they should be held accountable:

there is sufficient evidence to open a criminal investigation into whether senior Bush administration officials engaged in a criminal conspiracy to commit offenses such as torture and war crimes. This conspiracy would include, at a minimum, the top officials listed in this report as well as the lawyers who drafted legal memoranda seeking to justify torture.

Under such an approach, there are limits to the extent to which lawyers can say I was just following my instructions. And there are limits to client’s saying, I was just following advice. This is a problem which can crop up in numerous contexts. The interesting question is how do lawyers, the professions and the legal system define those limits.

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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