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Speaking Law to Power: Lawyers and Torture

Published online by Cambridge University Press:  27 February 2017

Richard B. Bilder  and
Detlev F. Vagts
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Editorial Comments
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American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 689 - 695
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Copyright © American Society of International Law 2004

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References

1 This Editorial Comment focuses on three of these memoranda: (1) Memorandum from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto R. Gonzales and Dept. of Defense General Counsel William J. Haynes II (Jan. 22, 2002) (“Application of Treaties and Laws to al Qaeda and Taliban Detainees”); (2) Draft Memorandum from White House Counsel Alberto R. Gonzales to President George W. Bush (Jan. 25, 2002) (“Decision re Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban”); (3) Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003). All three memoranda are available online at the Web site of George Washington University’s National Security Archive, at <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/index.htm> . They and other relevant memoranda are discussed in Murphy, Sean D.. Contemporary Practice of the United States, 98 AJIL 820 (2004)Google Scholar [hereinafter Summary of memoranda].

In June 2004, officials at the White House and the Justice Department distanced themselves from memoranda of the Office of Legal Counsel. See Press Briefing by White House Counsel Judge Alberto Gonzales, DOD General Counsel William Haynes, DOD Deputy General Counsel Daniel Dell’Orto, and Army Deputy Chief of Staff for Intelligence General Keith Alexander (June 22, 2004), at <http://www.whitehouse.gov/news/releases/2004/06/20040622–14.html> (statement by White House counsel that “[Unnecessary, over–broad discussions in some of these memos that address abstract legal theories, or discussions subject to misinterpretation, but not relied upon by decision–makers are under review, and may be replaced, if appropriate, with more concrete guidance addressing only those issues necessary for the legal analysis of actual practices”).

For some factual and legal background relating to the abuse of U.S.–held detainees, see, for example, Murphy, Sean D.. Contemporary Practice of the United States, 98 AJIL 591 (2004)Google Scholar. For the international legal issues, see, for example, Leila Nadya, Sadat, International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces, ASIL Insights, May 2004 Google Scholar, and Kirgis, Frederic L.. Distinctions Between International and U.S. Foreign Relations Law Issues Regarding Treatment of Suspected Terrorists, ASIL Insights, June 2004 (both available at <http://www.asil.org/insights.htm>Google Scholar ).

2 The Third Geneva Convention provides that prisoners of war “must at all times be humanely treated” and that “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Geneva Convention (No. Ill) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Arts. 13, 17, 6 UST 3316, 3328,75 UNTS 135, 150. Similarly, the Fourth Geneva Convention provides that civilians detained by an occupying power

are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Geneva Convention (No. IV) Relative to the Protection of Civilian Persons in Time of War, Art. 27, 6 UST 3516, 3536, 75 UNTS 287, 306; see also id., Art. 31, 6 UST at 3538, 75 UNTS at 308 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”). Further, torture and inhumane treatment of prisoners of war or protected civilians are considered war crimes under the 1949 Geneva Conventions.

3 The Convention Against Torture, to which the United States is a party, prohibits governments from engaging in acts of torture, which are defined as any act—when done by a person acting in an official capacity—by which “severe pain or suffering, whether physical or mental,” is intentionally inflicted on a person for such purposes as obtaining information from him. The Convention also prohibits cruel, inhuman, and degrading treatment or punishment. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, Arts. 1, 16, 1465 UNTS 85, 113–14, 116 Google Scholar.

4 A U.S. statute criminalizes the commission of torture by a U.S. national outside the United States. 18 U.S.C. §2340A (2000)Google Scholar. Further, it is a criminal offense for U.S. nationals to commit acts in violation of several provisions of treaties governing the law of war. 18 U.S.C. §2441 (2000).

5 The memoranda are summarized, with excerpts, in Summary of memoranda, supra note 1.

6 Draft Memorandum from White House Counsel Alberto R. Gonzales to President George W. Bush (Jan. 25, 2004), supra note 1, at 2.

7 See Memorandum from Dep’t of State Legal Adviser William H. Taft IV to White House Counsel Alberto R. Gonzales (Feb. 2, 2002) (“Comments on Your Paper on the Geneva Convention”); Draft Memorandum from Secretary of State Colin Powell to White House Counsel Alberto R. Gonzales (Jan. 26, 2002) (“The Applicability of the Geneva Convention to the Conflict in Afghanistan”) (summarized in Summary of memoranda, supra note 1); R. Smith, Jeffrey, Lawyer for State Dept. Disputed Detainee Memo; Military Legal Advisers Also Questioned Tactics, Wash. Post, June 24, 2004 Google Scholar, at A07 (reporting “strongly expressed internal dissents at the State Department and the military services”); Final Report of the Independent Panel to Review DoD Detention Operations 33–34 (Aug. 24, 2004), at <http://www.dod.gov/news/Aug2004/d20040824finalreport.pdf>>Google Scholar ; Summary of memoranda, supra note 1, at 822 nn.24 & 26). The promulgation of new guidelines for interrogation of Al Qaeda suspects in the war on terror led a group of military lawyers to organize a secret meeting with Scott Horton of the New York City Bar Association in the spring of 2003. They urged him to challenge the Bush administration about its standards for interrogation and detention, which they felt were a dangerous departure from the United States’ historic approach to international law. See Dworkin, Anthony, America’s Interrogation Network: Rules on the Treatment of Prisoners in International Law, at <http://www.crimesofwar.org/onnews/news–prison2.html> (May 17, 2004)Google Scholar (Crimes of War Project).

8 See, e.g., Lawyers’ Statement on Bush Administration’s Torture Memos (Aug. 4, 2004), at <http://www.allianceforjustice.org/spodight/collection/spotlight_statement0804.html> (addressed to the president, vice president, secretary of defense, attorney general, and members of Congress; signed by some 130 prominent members of the American legal community, including former judges, elected officials, former attorneys general, American Bar Association presidents, and professors; posted on the Alliance for Justice Web site) [hereinafter Lawyers’ Statement]; Letter Sent to the United States Congress Regarding Recent Human Rights Issues in Iraq (June 16, 2004), at <http://www.iraq–letter.com> (signed by over five hundred members of university faculties in law, international relations, diplomacy, and public policy).

9 The Martens clause, which requires that “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience,” appears in the Hague Conventions of 1899 and 1907, in the Geneva Conventions of 1949, and in Protocol I of 1977. See Strebel, Helmut, Martens’ Clause, 3 Encyclopedia of Public International Law 326 (Rudolf Bernhardt ed., 1997)Google Scholar.

10 The memoranda referred to Ireland v. United Kingdom, 25 Eur. Ct. H. R. (Ser. A) (1977)Google Scholar. For more recent case law, however, see Human Rights Practice §§3.006–.013 (Jessica Simon et al. eds., 2001) (looseleaf).

11 Rasul v. Bush, 124 S.Ct. 2686 (2004).

12 Sheet, Youngstown & Tube Co, v. Sawyer, 343 U.S. 579 (1952)Google Scholar (rejecting the argument that President Truman had inherent constitutional authority to seize private steel mills in order to prevent a strike during the Korean War); United States v. Wappler, 2 C.M.A. 393 (1953) (where president’s Manual for Courts–Martial conflicts with the statutory Uniform Code of Military Justice, “the latter, of course, controls”).

13 See, e.g., Lawyers’ Statement, supra note 8 (asserting that the senior lawyers responsible for the memoranda “have counseled individuals to ignore the law and offered arguments to minimize their exposure to sanction or liability for doing so”); Lewis, Neil A.. Justice Memos Explained How to Skip Prisoner Rights, N.Y. Times, May 21, 2004 Google Scholar, at A10 (the memoranda “were crucial in building a legal framework for United States officials to avoid complying with international laws and treaties on handling prisoners, lawyers and former officials say” and “provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated”); Paust, Jordan, The Common Plan to Violate the Geneva Conventions (May 25, 2004), at <http://jurist.law.pitt.edu/forum/paust2.php>Google Scholar (Jurist forum).

14 See, e.g., Bending the Rules? PBS Online Newsletter, May 13, 2004, at <http://pbs.org/newshour/bb/middle_east/jan-june04/interrogation_05–13.html>>Google Scholar (“Recent images of Iraqi prisoner abuse have raised questions about whether the Department of Defense created a climate for abuse by sidestepping international standards on the appropriate treatment for prisoners of war.”); Isikoff, Michael, Double Standards? A Justice Department Memo Proposes That the United States Hold Others Accountable for International Laws on Detainees—but That Washington Did Not Have to Follow Them Itself (May 21, 2004), at <http://msnbc.msn.com/id/5032094/site/newsweek/>Google Scholar; The Roots of Abu Ghraib, N.Y. Times, June 9, 2004 Google Scholar, at A24 (editorial) (“Each new revelation makes it more clear that the inhumanity at Abu Ghraib grew out of a morally dubious culture of legal expediency and a disregard for normal behavior fostered at the top of this administration.”); Barry, John, Hirsh, Michael, & Isikoff, Michael, The Roots of Torture, Newsweek, May 24, 2004 Google Scholar, at 28.

15 See, e.g., Alden, Edward, Attempt to Find Legal Justification for Torture Leaves Lawyers Aghast, FIN. Times, June 10, 2004,Google Scholar at 3 (“Scott Horton, past chairman of the international human rights committee of the New York City bar association says the government lawyers involved in preparing the documents could and should face professional sanctions. ‘There are serious ethical shortcomings here,’ he says.”); Lawyers’ Statement, supra note 8 (“The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution.”); Liptak, Adam, Torture and Legal Ethics: How Far Can a Government Lawyer Go? N.Y. Times, June 21, 2004 Google Scholar, §4 (Week in Review), at 3; Gillers, Stephen, Tortured Reasoning, Am. Law., July 2004,Google Scholar at 65.

16 See The Role of the Legal Adviser of the Department of State. A Report of the Joint Committee Established by the American Society of International Law and the American Branch of the International Law Association (July 1990) (American Society of International Law, Oct. 1, 1990), reprinted in 85 AJIL 358 (1991)Google Scholar [hereinafter Report on die Role of the Legal Adviser]. For a discussion of the background, preparation, and issues raised by this report, see Bilder, Richard B.. International Law and United States Foreign Policy: Some Reflections on the ASIL/ILA Report on the Role of the Legal Adviser, 1 Transnat’l L. & Contemp. Probs. 201 (1991)Google Scholar (includes report as appendix), and remarks by Bilder, Richard B.. in panel on “The Role of International Law in U.S. Foreign Policymaking,” 86 ASIL Proc. 434, 436–40 (1992)Google Scholar. On the role of the State Department legal adviser more generally, see, for example, Young, Michael K.. Government Lawyering: The Role of the Attorney–Adviser in the U.S. Department of State: Institutional Arrangements and Structural Imperatives, 61 Law & Contemp. Probs. 133 (1998)Google Scholar; Bilder, Richard B.. The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs, 56 AJIL 633 (1962)Google Scholar.

Related issues concerning the role and responsibilities of foreign office and other lawyers, particularly when confronted with apparent conflicts between law and policy, have been reexamined in a symposium on “Speaking Law to Power: International Law and Foreign Policy,” at the University of Wisconsin Law School, March 5–6, 2004, which will be published in the forthcoming Winter 2005 issue (Vol. 23, No. 1) of the Wisconsin International Law Journal.

17 See, e.g., Cramton, Roger C.. The Lawyer as Whistleblower: Confidentiality and the Government Lawyer, 5 Geo. J. Legal Ethics 291, 293–94 (1991)Google Scholar.

18 Center for Professional Responsibility, American Bar Association, Model Rules of Professional Conduct (2004)Google Scholar.

19 Rule 1.1 (“Competence”) provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

20 Rule 1.2 (“Scope of Representation”), paragraph (d), provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that die lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Comment [9] to that rule states:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

21 See Rule 1.2(d), Comment [9] (quoted supra note 20).

22 Comment [1] to Rule 2.1 (“Advisor”) states: “[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment [A] lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

23 Rule 2.1 provides: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In 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.”

Comment [2] to Rule 2.1 states:

Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

24 Rule 1.13 (“Organization as Client”) provides:

  • (a)

    (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

  • (b)

    (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.

Furthermore, under 28 U.S.C. §535(b), government lawyers are bound to report to the attorney general “[a]ny information... received in a department or agency of the executive branch of the Government relating to violations of title 18 involving Government officers or employees.”

25 See, e.g., Report on the Role of the Legal Adviser, supra note 16; Cramton, Roger C.. On the Steadfastness and Courage of Government Lawyers, 23 John Marshall L. Rev. 165 (1990)Google Scholar.

26 For the role of State Department legal adviser in relation to international law, see Report on the Role of the Legal Adviser, supra note 16, at 360–62. See also Senate Committee on Foreign Relations, The ABM Treaty Interpretation Resolution, S. Rep. No. 100–164, at 65 (1987)Google Scholar, which comments as follows on the special responsibilities of the State Department legal adviser:

The United States Government needs such public servants—persons willing to place duty over ambition in defending the integrity of the law. Nowhere is this more true in the law of foreign relations . . . .

The Legal Adviser stands alone among lawyers within our Federal Government. He is the first guardian, and often the last, of the United States Government’s commitment to the rule of law in two different legal systems—constitutional and international. . . .

The Legal Adviser is thus charged with American compliance with—and American efforts to enforce— the most momentous elements of the rule of law: rules of constitutional power, of international commitment, of war and peace. It is the Legal Adviser who, through his own integrity and the integrity of the legal analysis he oversees, must set the highest standards in honoring the law of the Constitution and the law of nations. It is the Legal Adviser who, when asked to “legalize” short–term policy ends over constitutional means, must be prepared to say no. It is the Legal Adviser who, regardless of political pressures, must revere law as the alternative to anarchy.

27 See, e.g., Bolton, John R.. Is There Really “Law” in International Affairs? 10 Transnatl. L. & Contemp. Probs. 1 (2000)Google Scholar; Krauthammer, Charles, The Curse of Legalism: International Law? It’s Purely Advisory, New Republic, Nov. 6, 1989 Google Scholar, at 44; Rubenfeld, Jed, The Two World Orders, Wilson Q., Autumn 2003,Google Scholar at 22.

28 See, e.g., U.S.Is Said to Weigh Abducting Terrorists Abroad for Trials Here, N.Y. Times , Jan. 19, 1986 Google Scholar, at A1 (reporting that the State Department’s legal adviser, in stating that he was prepared to support the “seizure” of terrorists in other countries, “acknowledged that such a move would violate international law, but said there were legitimate arguments in favor of ‘bending’ the rules in extraordinary circumstances”).

29 See, e.g., Lawyers’ Statement, supra note 8 (“Enforcement of all of our laws depends on lawyers telling clients not only what they can do but also what they can not [sic] do. This duty binds all lawyers and especially lawyers in government service.”).

30 For views critical of the memoranda, see, for example, references cited supra note 15. For views defending the memoranda, see, for example, C, John. Yoo, , With ‘All Necessary and Appropriate Force’; in Interrogations, U.S. Actions Align with Treaties and Congress’ Wishes, L.A. Times, June 11, 2004 Google Scholar, at B13.

31 See the discussion of this issue in Report on the Role of the Legal Adviser, supra note 16, at 363:

[S]everal members noted the difficulty of determining impartially and authoritatively whether in a particular case the U.S. government was or was not complying with international law. An important reason for this difficulty in many cases is that legal conclusions depend on findings of fact and on judgments of reasonableness, necessity, proportionality or similar broad standards that are part of die law. In addition, in some cases, the content and interpretation of the applicable rules are in controversy.

The Committee does not consider it useful to propose criteria or tests for determining when a legal argument or position is so slanted as to be beyond the range of responsible and good faith argument. Some members think that the international law community’s good judgment and the public’s common sense can generally be relied on to tell responsible arguments from those which are patently unfounded. Consequently, the most effective check on government advocacy of dubious or irresponsible legal positions will be the willingness of the Legal Adviser to publicly state, defend and be accountable for such arguments before other officials and Congress, the public and the community of international lawyers.

32 See, e.g., Wharton’s Criminal Law §79 (“Advice of Counsel”) (Charles E. Torcia ed., 15th ed. 1993). But see Nexus Hour report (Public Broadcasting System television broadcast, May 12, 2004) on Secretary of Defense Rumsfeld’s appearance, along with General Richard Meyers, chairman of the Joint Chiefs of Staff, before a Senate hearing on interrogation methods used in Iraq. In response to an assertion by Senator Richard Durbin of Illinois that such practices violate die Geneva Conventions, Secretary Rumsfeld stated: “General Meyers, correct me if I’m wrong, but my recollection is that any instructions that have been issued or anything that’s been authorized by the department was checked by the lawyers in your shop, in the office of the secretary of defense, and deemed to be consistent.”

33 See supra note 13 and accompanying text.

34 See id.; Hazard, Geoffrey C. Jr. How Far May a Lawyer Go in Assisting a Client in Unlawful Conduct? 35 U. Miami L. Rev. 669 (1981)Google Scholar; Wolfram, Charles W.. Modern Legal Ethics 692–98 (1986)Google Scholar.

35 I Trial of the Major War Criminals Before The International Military Tribunal 286 (1947–49)Google Scholar.

36 United States v. Alstoetter, 3 Trials of War Criminals Before The Nuernberg Military Tribunals Under Control Council Law No. 10, at 1086 (1949)Google Scholar.

37 See, e.g., Reydams, Luc, Universal Jurisdiction: International and Municipal Legal Perspectives (2003)Google Scholar; Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (Stephen Macedo ed., 2003); Princeton Project on Universal Jurisdiction, The Princeton Principles on universal Jurisdiction (2001), at <http://www.princeton.edu/~lapa/unive_jur.pdf>>Google Scholar; but see Ratner, Steven R.. Belgium’s War Crimes Statute: A Postmortem, 97 AJIL 888 (2003)Google Scholar; Bartle, Regina v. ex parte Pinochet, [1999]Google Scholar 2 All E.R. 97, [1999] 2 W.L.R. 827 (H.L.).

38 See the latest, 1992 revision of U.S. Army Field Manual 34–52, Intelligence Interrogation, which states: “Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort.” Id. at 1–8. The field manual is available online at <http://atiam.train.army.mil/portal/atia/adlsc/view/public/302562–1/FM/34–52/FM34–52.HTM> .

39 Gormley, Ken, Archibald Cox: Conscience of A Nation 338–58 (1997)Google Scholar.

40 Gillers, Stephen, Regulation of Lawyers: Problems of Law and Ethics 5 (6th ed. 2002)Google Scholar.

41 15 Trial of the Major War Criminals Before The International Military Tribunal 481–86 (1947–49)Google Scholar.

42 1 id. at 232.

43 Those involved in the preparation of the memoranda were also associated with die persons who sought to overthrow the Hider regime on July 20, 1944. Although the memorandum on prisoners of war is signed by Admiral Canaris, not a lawyer, its drafting is attributed to Count von Moltke, a lawyer on his staff. See Vagts, Detlev F.. International Law in the Third Reich, 84 AJIL 661, 698–99 (1990)Google Scholar.

44 Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).