"The Dark Side"

Three posts back, I wrote about lawyers as gatekeepers. Fresh from reading Jane Mayer's excellent book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals (2008), I see that the role of lawyers as gatekeepers is integral to this sad story. Responding to 9/11, our government decided that we would use any and all legal force to interrogate the alleged terrorists we captured.

What that meant was that whatever the lawyers said was legal would be done. It meant, quite precisely, that lawyers were the gatekeepers determining what forms of brutality we would use on our prisoners. Mayer makes precisely this point (in particular, at 231).

Not any lawyers, and not even many. Because of the special role of the Department of Justice's Office of Legal Counsel (OLC), the opinions issued by that single, elite and quite small, office to a large extent (not completely, as I'll discuss below) determined whether the gate opened or shut.

If these same lawyers had been criminal defense counsel, representing people charged with the crime of torture, there would be no basis to challenge their offering the most narrow interpretation of the torture statute conceivable. No lawyer is permitted to make an argument that isn't in good faith, but in the context of criminal defense the boundaries of good faith are very, very wide.

It's incongruous to think of lawyers who are determining the law for the executive branch of the United States government doing so in the mode of criminal defense lawyers, but it is not a simple matter to explain why an interpretation that is in good faith when offered by one lawyer isn't still in good faith when offered by another, such as a member of the Office of Legal Counsel. I've been trying to answer this point, in a work now in progress, by arguing that the law itself provides reasons to limit the range of interpretations, when the interpretations are secret, when human rights are at stake, and especially when legal rules as crucial and firmly established as the prohibition on torture are being interpreted.

To these reasons I'm inclined to add the gatekeeper role the lawyers at the OLC played, and to say that the more the lawyer is placed in this position the greater his or her responsibilities are. Here, the policy decision by the Bush Administration -- to do whatever the law permitted -- made the OLC's gatekeeper role even more salient than it would normally have been, because it was no longer open to the lawyers to say that choices they viewed as legal might still be rejected on policy grounds; the law's obstacles, if there were any, were the only ones left.

But all this tells the story too abstractly. It seems clear that the Administration wanted to do whatever the law permitted, and that it wanted the law read to permit as much as possible. That by itself isn't extraordinary; while there probably are clients who say, "Tell me what the law really requires, and I'll do it," no doubt there are many others who say, "Find me a way to do what I want to do, and still stay within the law." So having that kind of client, and knowing it, probably doesn't make the OLC lawyers' ethical situation special (as I think others have pointed out).

A second abstraction is the idea that the OLC lawyers were simply stuck with the gatekeeper role. This does not seem to be correct. There are a lot of lawyers in the government, and many of them write memos; on a hotly contested matter, it takes effort to make one's interpretation of the law controlling in fact, even if it is already controlling in theory. As it happens, many of the memos written by the OLC weren't disseminated widely at all; for example, Mayer reports, the opinion determining that the "Terrorist Surveillance Program" at the National Security Agency was legal, despite its seeming breach of the Foreign Intelligence Surveillance Act, was not made available to the lawyers for the NSA itself! (Mayer at 268.) Moreover, sharp bureaucratic maneuvers were made to generate legal decisions -- notably, in the Department of Defense, on the issue of interrogation tactics -- while keeping those who might object to harsh tactics out of the loop, even people with as obvious a say in the matter as the General Counsel of the Department of the Navy and perhaps the top Judge Advocate Generals of the armed services. (See Mayer at 213-237.) Evidently, John Addington (Vice President Cheney's counsel), John Yoo (not, as it happens, the most senior lawyer in the Office of Legal Counsel), and three other lawyers became a self-constituted "War Council" (Mayer at 66)and pressed a very hard line on how much power the President could exercise, and what means he could order employed.

So a more precise account of the role of the lawyers is that a small group of lawyers worked to insure that a particular answer to the question of what the law permitted became the authoritative answer. They sought to monopolize the gatekeeper role, with the goal of opening the gate as wide as possible.

None of this says that any of these lawyers sought to violate the law. Nor does it say that the Administration sought to violate the law -- though it's hard not to think that if you believed harsh treatment was necessary to save American lives, as the leaders of the Administration thought, you might also feel that violating laws that forbade such harsh treatment was also necessary, and justified. (Mayer reports, at 305, the shock that one participant in a meeting felt when he heard "Scooter" Libby, Cheney's chief of staff, say of the CIA's secret program of detention and interrogation of high-value terrorist suspects that "Ninety-nine percent of what we do is legal" -- a statement which might mean that Libby, and others, knew that one percent was not.) If you felt that, you might also feel that you needed fig leaf legal opinions, which you'd then keep locked up; meanwhile, you would assure those in the field that their actions were legal, based on these secret opinions. Doing that is just plain illegal, and for a lawyer to help the client do that would also be just plain illegal. But as I say I'm not assuming that anyone acted with the intention to violate the law.

I'm not even saying that the torture statute is altogether easy to interpret. Unfortunately, in some respects -- not all -- it just isn't; that's a subject of the work-in-progress I mentioned a little earlier in this post.

But what seems to have happened, even if everyone acted within their conception of the law, is that a small group of lawyers maneuvered to impose their very extreme view of the law, with full knowledge that the government would use every inch of the space at the gate they had opened. Very possibly the lawyers also agreed with that government policy, though I don't think that fundamentally changes the issues of legal ethics; it is surely no more wrong to open a gate which you feel should be entered than to open one that you believe should not be used. (Of course, your preferences may affect your interpretations, and so there is reason to be cautious about endorsing as correct a legal reading that also happens to be the one you want.)

But this extreme view of the law was also mistaken; at least some of what was authorized actually was torture, and a great deal of it was unbearably cruel and inhumane. So I say; and one might respond, but what proves that I am right? And the answer is that nothing absolutely proves it; it is necessary to judge what legal provisions mean. But the impossibility of absolute certainty doesn't mean judgment is impossible; quite the contrary, it means judgment is essential.

It seems to me that these lawyers misunderstood their responsibilities, in particular their gatekeeping responsibilities, and that those responsibilities were especially acute because the lawyers had maneuvered so intensely to secure them. I'm not contending that as a result these lawyers violated any rule of legal ethics or of the criminal law, or of the Nuremberg principles. What seems most important is simply to say that these errors were yet another of our country's profound overreactions to national security crises, and to repudiate them. It is very hard to avoid such overreactions, but important to try to learn after each failure, as fully as possible, what the failure was. The United States has conducted an experiment with torture, an experiment from which we ourselves will suffer for a long time to come. It is very important not to repeat it.