Lawyers against torture -- inside the Bush Administration

While Jane Mayer's The Dark Side tells a story of lawyers opening the gates to torture, it also tells a story of lawyers bravely opposing that. Mayer herself sums up by saying that "many Administration insiders ... had fought valiantly to right what they saw as a dangerously wrong turn." (334) Not all of these were lawyers, of course, and I don't at all suggest that commitment to law is the only path to commitment to principle (far from it). But lawyers are among the central figures in what was, after all, in good part a dispute about the bounds of law.

Alberto Mora, the idealistic General Counsel of the Navy who thought the Defense Department would realize that torture was wrong, is one example. (213-37) James Comey, the tough Deputy Attorney General who told the Senate during his confirmation hearing, "I don't care about politics. I don't care about expediency. I don't care about friendship. I care about doing the right thing." (310), is another. Dan Levin, the acting head of the Office of Legal Counsel who subjected himself to waterboarding in an effort to determine whether it really was torture or not (298-99), is a third. Matthew Waxman, a Deputy Assistant Secretary of Defense, and John Bellinger, "the highest ranking lawyer in the State Department" under Condoleezza Rice, are on this list too (316-24).

But heading the list is probably Jack Goldsmith, a conservative legal academic who became head of the Office of Legal Counsel, set about to research the law on torture and other subjects that John Yoo and others had addressed in secret memoranda, and ultimately withdrew what was called "the Golden Shield," perhaps the critical memo that had legitimized torture. (261-94) This decision, which Goldsmith reinforced by timing his resignation so that if the withdrawal was overridden his resignation would appear to be in protest (294), meant that what had been said to be legal was so no longer. This wasn't just a closing of the gate prospectively, but potentially an expulsion from the gate retroactively.

Despite the bad name lawyers get a lot of the time, they've shown this kind of courage in many oppressive countries. I realized this when I studied the work of anti-apartheid lawyers in South Africa in my book In a Time of Trouble: Law and Liberty in South Africa's State of Emergency (1992); their work was remarkable, but happily it was not unique. I found examples of lawyers' taking stands against government oppression in Argentina, Brazil, Chile, Spain, France, Russia, Ghana, Kenya, the West Bank, Syria, India, Malaysia, Bangladesh, and the United States, and the full list would surely be longer. It seemed to me as I studied South African lawyers that one source of their determination and courage lay in the traditions of the legal profession itself, and Mayer's book offers some signs that that was true for the lawyers resisting US torture too.

Thus Goldsmith, as Mayer portrays him, "convinced himself that it would be best to set aside his personal qualms [about how to treat detainees]. The moral trade-offs between torture and security were so difficult, he saw them as policy questions for the President. His job as a lawyer, he told himself, was simply to provide legal analysis. His political and moral opinions were irrelevant." (267) Many lawyers would say that their political and moral opinions did rightly play some part in interpreting what the law was, but Goldsmith evidently was not one of them. He believed there was a there there, in the law itself, and his job was to find it.

What's striking is that what some of these lawyers did was ... research. They apparently did not believe that the law was indeterminate; instead, they felt that by their own hard work (up to and including enduring waterboarding, in Dan Levin's case) they could determine what the law really meant. It's quite possible to imagine other lawyers, not convinced that laws had demonstrable intrinsic meanings, resisting the Bush Administration approach because they felt it was morally wrong, or even strategically unwise. But these lawyers apparently found strength in adhering to the law. If they hadn't believed that laws meant some things and not others, could they have believed that the law was worth standing up for?

That question isn't actually just rhetorical, and there is more than one possible answer to it. We can imagine people standing up for, say, the process values of the law -- declaring that the law doesn't have a determinate meaning but that the process by which it works out decisions in cases is valuable and worth upholding. A faith in fair process is a meaningful faith. And its significance is reflected in the events Mayer's book describes. It seems quite fair to say that those who opened the door to harsh treatment sought to read the torture statute and other laws as permissively as possible; and fair as well to say that lawyers such as Levin and Goldsmith sought to figure out what the torture statute really authorized. That difference of attitude is a process difference; Levin and Goldsmith were more impartial than Yoo and Addington. (Part of my argument against the memos authorizing torture, which I alluded to in my previous post, is precisely that they took the wrong interpretive approach -- though I've argued, in essence, that the right approach is an interpretation in favor of liberty, not simply a neutral effort to discern the meaning of the words.)

Important as process may be, in any event, my sense is that the lawyers who resisted the Bush Administration's approach to torture held more than a faith in process. They believed that the law actually meant something, though process might help them to determine what that was.

It might be fair to say that ultimately what they thought was that the law limited government power. That's perhaps the fundamental point about how to read the torture statute: if you don't read it as a limit on government power, you've misunderstood it altogether. If you don't read democratic constitutions as limits on power, you've again missed the point. John Yoo told Jane Mayer that Congress couldn't "'tie the president's hands in regard to torture as an interrogation technique.' He continued, 'It's the core of the commander in chief function. They can't prevent the president from ordering torture.'" (153) To consider the commander in chief power unlimited is to miss the central point about a constitution built around checks and balances; to extend that notion of unlimited power to torture was the same mistake, augmented exponentially.