Can Lawyers Be War Criminals?

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

Yoo and Bybee engage in more "ends-justify-the means" lawyering at the end of the Torture Memo when they suggest that there might be defenses to a prosecution under 18 U.S.C. § 2430(A).42 The authors write, "Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information."43 There is nothing "standard" about this argument. 18 U.S.C. § 2340 mentions no defenses, and the Convention Against Torture specifically states, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."44 A lawyer who gives a client advice intended to provide a road map for the client in violating the law may be held complicit in the client's criminal conduct,45 and Yoo and Bybee, by their own admission, invoke these defenses so that interrogators can evade criminal liability in the event of future prosecution.46 If one follows the Torture Memo's reasoning, whatever is done to a specific detainee (who may be detained by mistake or simply have no information) can be justified by reference to the general threat posed by Al Qaeda. As Professor Wendel suggests, "by talking loosely and generally about necessity, [Yoo and Bybee] invite interrogators to conclude that their conduct may be justified."47

The analysis of "severe pain" as a predicate for torture under 18 U.S.C. § 2340 is another example of lawyerly recklessness. Yoo and Bybee quickly move from a dictionary definition of "severe pain" that is presumably too broad and indeterminate for their purposes to a far narrower meaning.48 They do this by locating the term "severe pain" in the United States Code in statutes that deal with emergency medical conditions and the provision of medical benefits.49 Because severe pain is an indicator of an emergency medical condition under these statutes, and an emergency medical condition is one that is likely to result in permanent and serious physical damage or organ failure, the authors argue that an act is torture only if it produces pain that rises to "the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions."50

Attempting to define "severe pain" in the context of torture by reference to the definition used in a statute regarding medical benefits is both bizarre and duplicitous. As Peter Brooks notes,

One might ask whether the use of "severe pain" in the context of medical emergency is in fact more 'significant' than any number of other uses of severe, in statutes and in ordinary usage. But this slide into medical usage allows Bybee to come up with his interpretation of choice . . . He's by now got us well out of common English usage and into the emergency room.51

Even if one presumes a good faith analysis by Yoo and Bybee, their interpretation of "severe pain" is shoddy textualism.52 What makes this advice arguably criminal, however, is not so much that it is wrong but that the analysis turns the prohibition against torture into something akin to "a speed limit which we are entitled to push up against as closely as we can . . . ."53 In response to a question about the conduct of interrogations, Yoo and Bybee informed the White House that an act is torture only if it brings about the pain that normally accompanies death or organ failure. Under the standard advanced, interrogation techniques such as water-boarding and exposure to cold weather approved of by the Pentagon54 and used at Guantanamo Bay and Abu Ghraib seem relatively tame.