Can Lawyers Be War Criminals?

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

But whether or not Yoo and Bybee violated the legal profession's specific rules of conduct in writing the Torture Memo, I think they most certainly failed to discharge their duties as moral agents when they did so. Even if their legal analysis was technically correct and the United States is legally justified in employing dark interrogation methods on detainees that fall short of the "most heinous" acts, the Torture Memo was a dangerous document.66 The notion that interrogators can stop themselves at "mere" cruel, inhuman, or degrading treatment and not graduate to full-blown torture is foolhardy, and Yoo and Bybee would have realized as much.67

Lawyers are obviously permitted to consult with a client over the scope or application of various laws.68 But when a lawyer recognizes (or should recognize) that his/her legal advice is going to lead to the abuse of detainees, it is fair to ask why he/she-as a moral agent-has agreed to provide the advice or, at the very least, what he/she has done to minimize the negative consequences of the advice. As T.M. Scanlon has argued, an individual acts in a morally impermissible manner when he/she either follows a course of action in a full awareness of the countervailing negative considerations or fails to notice that his/her action entails a serious risk of harm to others.69 If Yoo and Bybee are not blameworthy in the first sense, they are certainly blameworthy in the second.

Yoo and Bybee knew the White House wanted to formulate new interrogation procedures for detainees. They also knew that, in the administration's view, the Convention Against Torture was the only instrument that prevented interrogators from engaging in coercive kinds of conduct.70 By narrowly interpreting the Convention Against Torture and also suggesting possible defenses in the event of persecution, Yoo and Bybee allowed the Bush Administration to adopt harsh new standards for interrogations. In light of this, we would expect a modicum of concern in the Memo for the well-being of the detainees or some consideration of whether American personnel should be engaged in the business of using cruel, inhuman, or degrading treatment on detainees. As argued, the Model Rules contemplate that lawyers will offer moral advice to their clients,71 and Yoo and Bybee did not restrict themselves solely to legal arguments in the Torture Memo.72 The only conclusion to draw from the failure of Yoo and Bybee to raise any moral qualms about their extreme construction of the torture statute is they simply did not care what happened to detainees in U.S. custody.

Arguably there are occasions when a lawyer's duties qua lawyer will trump his duties as an individual moral agent. Confidentiality rules, for example, generally prevent a lawyer from divulging the criminal conduct of his/her client,73 even if the lawyer believes that the world would be better served if the client's misdeeds were to come to light. But Yoo and Bybee did not find themselves torn between their professional duties and the dictates of morality. They could have given some consideration to the impact their advice would have on men in U.S. custody even if they believed ultimately the United States was justified in adoping harsh new interrogative tactics. Yoo and Bybee failed to voice any concern for the detainees, not because their professional duties did not allow for it, but because they believed that whatever happened to terrorist suspects was justified by relation to the threat the U.S. was facing. In other words, they wrote the Torture Memo from a particular moral framework, one that disregarded the consequences of undermining the prohibitions against torture and cruel, inhuman, or degrading treatment in both U.S. and international law. The stance of Yoo and Bybee foreseeably led to a policy where detainees would be abused and tortured. For their role in the mistreatement of terror suspects, Yoo and Bybee can and should be held accountable.