Controversy surrounds the role of the lawyers in the Office of Legal Counsel (OLC) within the Department of Justice (DOJ) who drafted memoranda that sanctioned the use of enhanced interrogation techniques by the Central Intelligence Agency (CIA) during the administration of President G.W. Bush. Three of the lawyers who signed the memoranda (dubbed the “torture memos” – see http://www.aclu.org/safefree/general/olc_memos.html) are being investigated by the ethics office of the DOJ (http://www.nytimes.com/2009/04/22/us/politics/22intel.html?hp).

This paper argues that:

1) it is appropriate for lawyers to advise clients on how to almost, but not quite, break the law, and

2) the torture memos can be faulted most clearly in their application of the law to the facts and in failing to acknowledge the moral issues involved.

1. It is not wrong to advise clients on how to go right up to the line

Legal advice is commonly sought to enable a client to know whether or not to undertake a course of action. Often this means that the client is seeking to know whether an action is or was lawful. The legality of an action can be considered in the context of criminal law, public law or private law. In many cases the client seeks a prediction as to how a court will rule if the matter reaches a court. Clients want to know where “the line” is - i.e. how far can they go without acting illegally. Accordingly, on any given day thousands of legal opinions are generated by lawyers who are advising their clients on what conduct is probably lawful. Applying this to the interrogation context, it was not wrong for OLC lawyers to provide advice on which interrogation methods were probably lawful.

2. Where did the memos go wrong?

A. The Process of Critiquing

Legal opinions should not be judged on the basis of the actions taken by clients because it is impossible to know how influential the legal opinion was in prompting the client to take the action in question.

In order to critique the torture memos, it is worth remembering the anatomy of a legal memorandum. The starting point for any legal memoranda is a specific factual scenario (past or present, real or hypothetical) relevant to a client. The second stage is legal research, jurisdictional rules, and any non-legal considerations that the lawyer is able to comment upon. Finally, the law, procedures and other considerations are applied to the facts.

Any decent lawyer can critique another lawyer’s legal advice. The prevalence of legal disputes is testament to the reality that the law is often unclear in its application to novel facts. Each aspect of a legal memorandum can be faulted on occasion. The most clear-cut faults are due to negligent research, especially in relation to procedural rules (e.g. omission of a statutory limitation period). There are also certainly circumstances where failure to take into account a recent change to the law brought about by a statutory amendment or superior court decision will result in legal advice being clearly wrong.

However, the greatest challenge is in the application of the law to the facts. There are many circumstances where reasonable lawyers could legitimately differ in their views regarding the application of binding or persuasive authorities or the applicability of particular statutory provisions. Again, this is demonstrated daily in courts across the United States.

B. Critiquing the Torture Memos

If you allow for cross-referencing to other OLC memos, then the torture memos incorporate all the basic elements: recitation of the facts, statement of the law and conclusions based upon an application of the law to the facts. There is room to debate whether the OLC lawyers sufficiently researched the relevant law. In particular, it is arguable that insufficient attention was paid to international legal authorities with persuasive value. However, the domestic focus is hardly surprising given the on-going debate in American legal circles regarding the extent to which regard should be taken of the rest of the world’s jurisprudence (http://balkin.blogspot.com/2009/04/whos-afraid-of-international-law.html). While I am not placed to make a definitive assessment, I suggest that it is unlikely that anyone will prove that the legal research was fundamentally deficient. The principal faults with the torture memos lie in the application of the law to the facts. For instance, the OLC lawyers were willing to rely upon an absence of information as positive evidence establishing a fact (e.g. “we are not aware of any evidence that sleep deprivation results in severe physical pain or suffering. As a result, its use does not violate Section 2340A”: Bybee, p10, Aug. 1, 2002). This is one instance of the specious reasoning used in the torture memos, and there are several others. In my opinion the OLC lawyers draw many conclusions that were not adequately supported by law or by facts.

There is something else though; something not as easy to articulate as a “problem” because it is not a required part of a legal memorandum. I am referring to the lack of any questioning of the morality of the proposed interrogation techniques. This was particularly demonstrated in the discussion of sleep deprivation, as it is a technique that I have personally experienced. As part of my military training I once worked in simulated combat conditions continuously and without rest or food for almost 70 hours. I suffered significant hallucinations after 50 hours, but did not report them as I knew that I would be assessed as psychologically weak if I did. I do not know whether to categorize my experience as “severe suffering”. However, I know beyond a shadow of a doubt that I could not positively advise that 180 hours of sleep deprivation is not torture (as to the hours see Bradbury, pp35-40, May 10, 2005). In my earlier paper I wrote of the duty of government lawyers to raise matters of public interest relevant to their advice. This point has wider application: all lawyers ought to consider whether the conduct proposed by their clients is morally acceptable.