The Big Picture and the Closeup

What the Client Wanted To Hear

            First, so the official story has gone, there were the lawyers, people with names like John Yoo, Jay Bybee and Stephen Bradbury.  Consulted by their clients in the Oval Office, the CIA, the Pentagon and the Vice President’s Office about whether Muslim men could be imprisoned without the protections of the Geneva accords, denied habeas, and tortured, the lawyers generated reams of detailed memos saying what could and could not lawfully be done.  Mostly, of course, what could be done.

            The story continues that the clients, having been advised in proper form, then issued orders to do what the lawyers had blessed, and when the orders were followed, everything that was done was therefore perfectly lawful.  Or maybe it wasn’t lawful, but if not, how were the poor clients to know? 

            The story has factual holes, to be sure.  Most interestingly, it is now reported that, per a report unreleased as of August 24, 2009, issued by the Office of Professional Responsibility, the Justice Department’s ethical watchdog, the conclusions in the memos, ostensibly the independent product of the lawyers, may have actually been dictated in the White House.  As the e-mails that show how the memos were really written emerge, we may need to dispense with the notion that the lawyers actually came first.[Note 1]   We may learn that Yoo and Bybee went far beyond telling the clients what they wanted to hear and actually lent their names to the process of the client telling the client what the client wanted to hear.

            But let’s stick with the official story, which poses enormous questions of its own.  If a lawyer describes objectively criminal behavior as lawful, and the client commits the crime, is the lawyer abetting a crime? 

            The wording of 18 U.S.C. § 2(a) certainly suggests as much: “Whoever commits an offense against the United States or … counsels … its commission, is punishable as a principal.”  However, I cannot locate a single reported case in which this language was applied to punish a lawyer who blessed the client’s crime.  That said, there is some law out there that suggests this may be a reasonable way to apply the statute.

            There exists, for example, a crime/fraud exception to attorney-client confidentiality.  A lawyer may reveal client confidences to prevent the client from killing or harming people or committing financial fraud.  Tellingly, in the official Comment to Rule of Professional Conduct 1.6, it is stated that “the lawyer may not counsel … the client in conduct the lawyer knows is criminal or fraudulent.”  It would seem consistent with these principles that when a lawyer is counseling the client to commit a crime, the lawyer is not engaged in the permitted practice of law, and hence any policy considerations protecting the lawyer from sanction are as weak as those protecting the lawyer’s communications with the client.

            A reasonable objection might be raised that a court following this logic could subject a lawyer to criminal sanctions for giving good faith advice.  To which I’d respond that the advice we’re talking about, even if not dictated by the White House in advance, doesn’t look much like good faith.  Space does not permit a blow-by-blow account of the yellow lights the memo-writers blew past, but it can be gleaned from the detailed account in the Senate Armed Services Committee report released this April on the treatment of U.S. detainees.  As the Department of Defense generated questionable instructions based on the torture memos, the lawyers from the various service branches, to their everlasting credit, kept pushing back and forcing the withdrawal of one set of instructions after another.  Given the insular circle these lawyers occupied, there is very little probability the original memo-writers were unaware of the strong contrary views of lawyers elsewhere in their circle, good conservatives all.

            As discussed in an earlier column, the shallowness and callowness of the memos argues a lack of the perspective necessary to practice law.  But the impervious response by Yoo et al. to the intramural criticism also argues a wilful moral blindness that the criminal laws should not protect.  Yoo, a Justice Thomas clerk, was a product of a system unique at the Court to Thomas’ chambers: prescreening by former clerks for utter ideological purity.[Note 2]   An angry refusal to listen is bad in Supreme Court justices and their chambers, and worse in the unreviewable world of secret OLC opinions; it certainly should not be protected as if it amounted to good faith.

            One court seems to be proceeding directly to that conclusion: Judge Jeffrey White of the Northern District of California ruled on June 12 in a civil suit by Jose Padilla against Yoo, refusing to countenance Yoo’s claim of conditional immunity.[Note 3]   Padilla’s theory there is that Yoo is the principal architect of the legal theories under which Padilla, a U.S. civilian citizen, was unlawfully detained on U.S. soil by the military and tortured according to the Guantanamo protocols blessed by Yoo.  A defense available to government officials so sued is that, under established law, a reasonable official could have believed his conduct was lawful.  Yoo invoked that defense.  The court held, however, that the unlawfulness of the apparent constitutional abuses to which Padilla was subjected looks pretty well established (as opposed to the extreme and unprecedented expansions of Presidential authority upon which Yoo had hung his hat).

            In the end, the strongest argument against immunity for the memo-writers is that it is terribly important that the lawyers who opine at the highest levels protect the country from violating its values, uphold our constitutional system, and, in short, not always tell the President what he wants to hear.  The advice may be delivered to the President and his closest advisers.  It may be delivered in secret.  Nonetheless, we are the client – we, and everyone, friend or foe, American or foreign, who will predictably be touched by that advice.  We all have an interest in the nation doing the right and lawful thing, in war and in peace.

            In the face of that overwhelming responsibility, it simply will not suffice for the lawyer to close his eyes, plug his ears, and fail even to give serious consideration to dissenting voices.  To do so is so far from being the appropriate practice of law that it does not deserve immunity or impunity.  If the lawyer counseled that the whole force of our nation be brought to bear to commit crimes, and those crimes were committed, the lawyer was a criminal too.  Wispy constitutional plausibility should not shield him.

            At Nuremberg, we tried influential government lawyers for actions that, formally at least, were taken in the legitimate practice of their profession.  Through a series of laws, regulations, and judicial decisions formally sufficient under the German constitution but inimical to its spirit, they had transformed the legal code and the courts of Nazi Germany into instruments of oppression and murder.  As General Telford Taylor, the prosecutor, said in his opening statement: “The temple must be reconsecrated…. It is more than fitting that these men be judged under that which they, as jurists, denied to others. Judgement under law is the only just fate for the defendants.”[Note 4]

            Precisely.