In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture. I and many others have criticized the quality of legal reasoning in previously disclosed memos, and it is now conventional wisdom that something went terribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues. At the time of this writing, it remains uncertain whether an investigative report of the Justice Department’s Office of Professional Responsibility (“OPR”) will be released to Congress, and whether there will be a public version of the report. Not surprisingly, the OPR report is rumored to be highly critical of the conduct of the lawyers who prepared these documents.
Professor Hatfield concludes, in my view correctly, that the legal analysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations. There are two strands to Professor Hatfield’s critique of the advising process. The first is positive, or empirical, and the second is normative. The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia. The normative claim is that the profession’s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing.
I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield’s proposed reform is much too strong. He would have lawyers act directly on the claims of their own consciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship). This is surprising given his diagnosis of the reason for the bad lawyering in the OLC memos:
I believe these lawyers began with the objective of justifying torture. They concluded that they were obligated to justify torture, and then they set out to do so. Whoever was ultimately responsible for requesting the Torture Memo apparently had such an objective, and the lawyers . . . accepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument.
An appeal to conscience would therefore entrench the problem identified by Professor Hatfield. The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law.