The Torture Memos and the Demands of Legality

Abstract

This review essay considers five recent books concerning the role of governmetn lawyers in the Bush Administration's war on terror: Harold Bruff, Bad Advice (2009); Jack Goldsmith, The Terror Presidency (2007); Jane Mayer, The Dark Side (2008); Philippe Sands, Torture Team (2008); John Yoo, War by Other Means (2006). One theme running through all of these books is whether there is a difference between legal and policy (or moral) advice, and whether lawyers in the Office of Legal Counsel can be criticized in terms of norms of legal ethics for the advice they provided. What divides critics and defenders of the OLC lawyers, I claim, is difference on whether the rule of law has normative significance apart from the substantive content of policies furthered by the law. For example, John Yoo's defenses appeal directly to moral and policy considerations, while Jack Goldsmith's critiques appeal to values associated with the rule of law. In my view, the role of lawyers should be understood in connection with the value of legality -- i.e. the distinction between government genuinely constrained by the law and government that aims at doing the right thing all-things-considered, and which regards the law as only a pragmatic constraint.