Can Lawyers Be War Criminals?

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

The Convention Against Torture ("CAT") prohibits both "cruel, degrading, and inhuman treatment" as well as full-blown "torture."55 Yoo and Bybee recognize this but insist on drawing a line between the two acts. They indicate that "certain acts may be cruel, inhuman, or degrading, but still not produce enough pain and suffering of the requisite intensity to fall within section 2430(A)'s proscription against torture."56 Why do Yoo and Bybee place so much emphasis on this distinction? They note that the United States attached a reservation when signing the CAT that cruel, inhuman, or degrading treatment means actions that violate the Fifth, Eighth or Fourteenth Amendments.57 The Bush administration has long believed that CAT's prohibition against cruel, inhuman, or degrading treatment does not bind U.S. interrogators abroad because the constitutional amendments cited in the reservation do not apply extraterritorially.58 Thus, in narrowing the definition of torture so that it only reaches "the most egregious conduct,"59 Through their strained analysis, Yoo and Bybee stripped the CAT-the one instrument that protects detainees-of much of its efficacy.60

In summary, according to the Torture Memo, for an act to be "torture" the interrogator must purposely intend to inflict "severe pain." Inflicting some pain is acceptable, however, and is not "torture" as long as the interrogator stays away from "the most heinous acts."61 And, even if an interrogator commits both the egregious act of torture (an act that must produce pain equivalent to that of organ failure or severe bodily impairment) with the intent to purposely inflict pain (as opposed to intending only to obtain valuable information), the Torture Memo suggests that there are viable defenses in the event of criminal prosecution.

Although lawyers are entitled to a certain amount of creativity when interpreting statutes, given its strained reasoning and dangerous implications, the Torture Memo is best understood not as standard lawyering, but rather as legal reassurance that interrogators can do as they please without fear of criminal liability. Professor Waldron is undeniably correct in observing that the fact that lawyers would provide legal justification for the degradation of fellow human beings is a source of shame to the profession.62 More than this, however, Yoo and Bybee knew that their advice would be relied upon to shape interrogation policies.63 Thus, they had a duty, not only as lawyers but also as moral agents, to discharge their duties responsibly given the important use to which their efforts were being directed.

Moral considerations are by no means foreign to the practice of law. Rule 2.1 of the Model Rules of Professional Conduct specifically provides that "[i]n rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."64 The Model Rules also prohibit lawyers from using their talents to assist clients in engaging in criminal or fraudulent conduct.65 Simply put, lawyers can offer moral advice and most certainly cannot ignore what their clients are going to do with their legal advice.