Speaking Law to Power: Lawyers and Torture

Abstract

The disclosure in 2004 of U.S. government legal memoranda seeking to justify the coercive interrogation of U.S.-held detainees raises important issues concerning the appropriate role and responsibilities of U.S. government attorneys, particularly when they advise on questions of international and U.S. foreign relations laws. This editorial comment, written shortly thereafter by two members of the Board of Editors of the American Journal of International Law, each of whom has served both as an attorney in the U.S. Department of State’s Office of the Legal Adviser and as an officer in the Judge Advocate Corps of the U.S. military forces, discusses whether the government attorneys preparing these memoranda can be regarded as having met the responsibilities of U.S. government attorneys involved in the “war on terror.”After describing the memoranda and growing criticism of them both within and beyond the U.S. legal community, the comment questions the legal analysis and conclusions of the memoranda, examines in detail the appropriate legal and ethical responsibilities of U.S. government lawyers, and suggests that government attorneys have responsibilities – including obligations of careful and unbiased analysis, competent representation and honest assessment – that go beyond those of private attorneys. While controversy will continue as to whether the attorneys preparing the memoranda met this standard, the comment notes that: (1) the memoranda should not in themselves insulate or immunize persons engaging or complicit in torture or war crimes from international or domestic criminal responsibility for their conduct; (2) an attorney who gives advice intended to assist or provide a “road map” for a client in violating or circumventing the law may be held complicit in the client’s criminal conduct; (3) even if the memoranda somehow have the effect of protecting persons involved in torture or war crimes from prosecution under U.S. law, they may not provide protection from prosecution or liability in international tribunals or the courts of other countries; and (4) it is questionable whether the policy that the memoranda sought to justify – avoiding U.S. obligations under international humanitarian treaties – has in fact furthered, rather than impeded, U.S. objectives in the “war on terror.” In conclusion, the comment suggests that these memoranda raise even profounder issues regarding government lawyers’ commitment to principles of ordinary morality and common decency, noting instances where other Department of Justice attorneys - and indeed some German military lawyers opposing illegal Nazi actions, courageously refused to support government policies they believed violated not only the rule of law but also their conscience.