Accountability of Government Lawyers

As noted in a NY Times editorial yesterday, the Senate Armed Services Committee report on detainee treatment during the Bush administration (executive summary here) provides a clear basis for criminal prosecution of the high-ranking government officials responsible for the policy. Here I'll quote just the final of the 19 conclusions the report draws:

The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

Charles Graner is serving a 10-year prison term for not simply acting on his own. Lynndie England was recently paroled after serving her 3-year sentence for not simply acting on her own. Will the people who devised the policy that Graner, Lynndie and others carried out face any charges?

The NY Times editors think not, and take the occasion to criticize President-elect Obama: "Given his other problems — and how far he has moved from the powerful stands he took on these issues early in the campaign — we do not hold out real hope that Barack Obama, as president, will take [the] politically fraught step" of appointing a prosecutor to go after Rumsfeld, Addington, etc. Ouch!

Is Obama's presumed reluctance to take aggressive legal measures against the current and former officials responsible for detainee mistreatment simply a cold political calculation? With respect to the actual drivers of the policy, it would seem so. Ordering torture and other forms of illegal detainee abuse is no different, as a legal matter, from committing torture. Indeed, it is probably worse, because the big fish who gives the orders can harm many more people than the retail-level operator. As Don Henley put it, "A man with a briefcase can steal millions more than any man with a gun." The same principle applies here.

But what about those who simply "went along?" I have in mind in particular Justice Department (and other administration) lawyers who were asked for memos establishing the legality of "coercive interrogation techniques" and dutifully complied. Let's put aside John Yoo. The Armed Services Committee report does not take a position on whether Yoo was simply implementing policy devised by those senior to him or, as indicated in other accounts, such as Jane Mayer's The Dark Side, was one of a small number of people driving the policy. Whatever Yoo's exact role, certainly he had help from other lawyers who were not in a position to decide the policy. In the hypothetical world in which there actually were real accountability, should they be prosecuted for badly shading their legal analysis so as to authorize what nearly all competent lawyers acting in good faith would deem illegal.

Here's how I characterized the Bybee/Yoo torture memo in January 2005: "In content and tone, the memo reads much like a document that an overzealous young associate in a law firm would prepare in response to a partner's request for whatever arguments can be concocted to enable the firm's client to avoid criminal liability." So, what about the lawyers below Yoo and Bybee who worked on that memo (and others)? Should they be criminally prosecuted for what might be characterized as legal malpractice?

As a lawyer, my initial reaction would be no. Anyone who has ever done legal work for a client knows the pressures to start seeing the law so as to favor the client's interest. That pressure is only heightened when the client is the United States and the underlying case is a war against terrorists. So it would appear unfair to go after the lawyers who merely didn't try to stop the detainee policy.

And yet, that cannot be the right answer, for we hold members of the armed services accountable for carrying out policies they do not design, where those policies are manifestly unlawful. "Just following orders" is no more an excuse for lawyers than for soldiers, sailors or marines. Indeed, it is less of one, because lawyers have the training to know better and because they are under less pressure. An OLC lawyer who stood up to her boss and refused to whitewash torture risked firing and potential blackballing, admittedly harsh consequences; but a soldier who refuses to carry out an order (to attack civilians, say) risks court-martial (if she is wrong about the order's legality) or death at the hands of her commander (if she is right).

I share the view of the Times editorialists that no one is likely to be prosecuted for detainee abuse. Still, careful analysis of the legal liability that could and should attach suggests that lawyers need frequent reminders that our duties to clients (including government clients) are bounded by our duties to the law.

Posted by Mike Dorf