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Can Lawyers Be War Criminals?
Georgetown Journal of Legal Ethics, The, Spring 2007 by Markovic, Milan
Commenting on the Torture Memo controversy, George Terwilliger, a former Deputy Solicitor General, expressed skepticism that legal opinions have ever hurt anyone.27 I disagree. Lawyers must always consider the likely real world consequences of their legal advice. While the exact influence of the Torture Memo is unclear, Yoo and Bybee were in effect asked by the White House how far interrogations could go, and their response was essentially "as far as you would like."28 In Grafting the Torture Memo in the manner they did, Yoo and Bybee made the abuse and degrading treatment of detainees appear legally permissible. As the analysis in this Essay suggests, Yoo and Bybee-and perhaps other lawyers who have or will engage in similar activities-can and should be held criminally accountable.
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I. THE TORTURE MEMO: FAULTY AND RECKLESS
Numerous legal scholars have systematically deconstructed the shoddy reasoning of the Torture Memo.29 I will not restate their analyses. I will instead focus on the sections of the Torture Memo where Yoo and Bybee's advice appears to be reckless30 given the end to which it was to be used. Before doing so, however, I will explain the nature of the task in which Yoo and Bybee were engaged.
The Torture Memo begins by analyzing the definition of torture as implemented in 18 U.S.C. ยง 2340(A).31 To violate section 2340(A), the statute requires that (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) the act inflicted severe physical or mental pain or suffering.32 Yoo and Bybee were asked by the White House to focus on the fourth and fifth elements.33
Yoo and Bybee first define "specific intent" very narrowly. They write, "In order for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act . . . . [Knowledge alone that a particular result is certain to occur does not constitute specific intent."34 Their definition presents a gross simplification of a complex issue. As the Levin memo-which ultimately superseded the work of Yoo and Bybee-notes, "[i]t is well recognized that the term specific intent is ambiguous and that the courts do not use it consistently."35 The prevailing view among criminal law practitioners is that a person acts with specific intent when he either desires the result of his conduct or the result is practically certain to follow from his conduct.36 In the Torture Memo, however, Yoo and Bybee equate specific intent with "purpose,"37 without even acknowledging that their position could be perceived as legally controversial.
To be sure, lawyers can reasonably disagree about the meaning of "specific intent." More important is that in response to a request for guidance on interrogation procedures from the White House, Yoo and Bybee advised that "[e]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite mens rea."3S In fact, Yoo and Bybee seemed to favor the infliction of pain on detainees when they note that information gained from suspected Al Qaeda personnel could prevent attacks equal or greater in magnitude to September llth.39 Their implication is clear: because the Bush administration's goal is the security of the United States and not cruelty for cruelty's sake, good faith actions by interrogators to stop future terrorist attacks cannot be prosecuted as torture.40 Yoo and Bybee knew that their work would be used to shape interrogation policy, and yet they were indifferent as to how their legal advice would be applied in the real world by the Bush administration. The Pentagon ultimately relied on this advice to sanction extreme interrogation tactics including the use of deprivation of light, hooding, and even exposure to cold weather and water-boarding at Guantanamo Bay.41
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