Can Lawyers Be War Criminals?

Georgetown Journal of Legal Ethics, The, Spring 2007 by Markovic, Milan

INTRODUCTION

On August 1, 2002, in response to a request from White House Counsel Alberto Gonzales, the Office of Legal Counsel (OLC) issued a memorandum entitled Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2430(A), now commonly known as the "Torture Memo."1 The memorandum, drafted by John Yoo and OLC head Jay S. Bybee, provoked outrage and disgust among legal professionals and the public-at-large.2 Harold Koh, a professor of international law and the Dean of Yale Law School, informed the Senate Judiciary Committee that it was the most erroneous legal opinion he had ever read.3 A law professor at the University of Virginia claimed that the memo "was less 'lawyering as usual' than the work of some bizarre literary deconstructionist."4 In December 2004, the Department of Justice repudiated the Torture Memo,5 although John Yoo continues to stand by the analysis.6

The August 1 memorandum was not merely an intellectual exercise. After September 11, 2001, the Bush Administration was determined to stop Al Qaeda, but the United States lacked human intelligence-spies inside the terrorist organization.7 Officials within the government reasoned that their best hope for gathering intelligence was by questioning captured terrorist suspects.8 In particular, the White House wanted to know how much pressure CIA interrogators could exert on uncooperative Al Qaeda detainees like Abu Zubaydah.9

It is against this backdrop that then White House Counsel Alberto Gonzales asked Yoo and Bybee to provide their construction of the Convention Against Torture And Other Cruel, Inhuman, Or Degrading Treatment, as implemented in U.S. law.10 Yoo and Bybee explicitly state in the first paragraph of the Memo that they understood this question to have "arisen in the context of interrogations outside the United States."11

The Torture Memo's impact cannot be overstated. It was the basis for coercive techniques used against several high-ranking detainees.12 In January 2003, then-secretary of Defense Donald Rumsfeld formed a working group to study interrogation techniques. The group's analysis relied heavily on the Torture Memo, incorporating much of the language verbatim into its own report.13 Rumsfeld subsequently promulgated a list of aggressive interrogation procedures to be used at Guantanamo Bay that eventually migrated to Iraq.14 When stories of systematic abuse, mistreatment, and torture at U.S. detention facilities came to light,15 many saw a direct connection between the Torture Memo and these crimes.16

There can be no doubt that the Torture Memo was horribly flawed legal analysis. Legal ethics experts have claimed that the authors of the Torture Memo violated their professional duties.17 Anthony Lewis equated the OLC's analysis of torture to "the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison." 18 Some have gone further still, suggesting that the memo exposes its authors to criminal liability.19

This Essay will use the Torture Memo to illustrate how lawyers might find themselves implicated in war crimes. I will explore the contention that the Torture Memo20 is not only flawed legal advice but potential evidence of criminal conduct.

In Part I, I will address the flawed and reckless reasoning employed in the Torture Memo. I argue that whether or not Yoo and Bybee wrote the memorandum in good faith, the enterprise in which they were involved-providing legal cover for the abuse of detainees-was morally hazardous. I argue that there are some ends toward which lawyers should not direct their talents or energies, and sanctioning the mistreatment of human beings is one such end. When lawyers facilitate the degradation and torture of detainees, they can justifiably be held accountable .

In Part II, I will demonstrate that lawyers are potentially complicit in war crimes when they "materially contribute" to the commission of crimes like torture. Writing a memorandum can qualify as a "material contribution," and precedents before the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the Nuremberg Tribunals suggest that lawyers can be held liable as accomplices if their legal advice facilitated or encouraged the commission of illegal acts.

In Part III, I will turn to potential venues for criminal prosecution of lawyers like Yoo and Bybee and the sources of law that may be used to prosecute them. American lawyers like Yoo and Bybee can potentially be prosecuted as war criminals under the statute of the International Criminal Court ("ICC")21 or in the court of any party to the Convention Against Torture ("CAT").22 As I will explain, it is irrelevant that the United States is not a party to the ICC because nationality is only one basis for the court's jurisdiction,23 and the CAT prohibits complicity in torture-whether by a lawyer or any other agent-irrespective of domestic law. I also argue in this Part that Yoo and Bybee could be investigated and charged in the United States, but the United States has been reluctant to examine the role of policy-makers in the abuse and torture of detainees. The Supreme Court's recognition that enemy combatants have rights under Article 3 of the Geneva Conventions in Hamdan v. Rumsfeld,24 seemed to open the door for such a prosecution,25 but the passing of the Military Commissions Act of 2006 seems to make such a prosecution not only unlikely but perhaps impossible.26