Advising Clients to Commit War Crimes with Impunity: An Unethical Practice

Seattle Journal for Social Justice, Sep 2017

By Marjorie Cohn, Published on 11/01/11

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1020&context=sjsj

Advising Clients to Commit War Crimes with Impunity: An Unethical Practice

Seattle Journal for Social Justice Advising Clients to Commit War Crimes with Impunity: An Unethical Practice Marjorie Cohn 0 1 Recommended Citation 0 Thomas Jefferson School of Law 1 This Article is brought to you for free and open access by the Student Publications and Programs at Seattle University School of Law Digital Commons. It has been accepted for inclusion in Seattle Journal for Social Justice by an authorized editor of Seattle University School of Law Digital Commons. For more information , please contact - Advising Clients to Commit War Crimes with Impunity: An Unethical Practice Cover Page Footnote Thanks to Ngai Pindell for organizing, and John Sims for presenting, on this panel. Advising Clients to Commit War Crimes with Impunity: An Unethical Practice Marjorie Cohn* “In situations like this you don’t call in the tough guys; you call in the lawyers.” —Former Central Intelligence Agency Director, George Tenet1 During the Bush administration, lawyers in the US Department of Justice’s Office of Legal Counsel (OLC) crafted memoranda that advised the executive how it could avoid criminal liability under US law for the torture and abuse of detainees in the “global war on terror.” Rather than providing candid legal advice, these lawyers advocated for a specific interpretation of the law. This essay will analyze some of the most egregious torture memos and explain why they violate the American Bar Association (ABA) Model Rules of Professional Conduct and Justice Department guidelines, as well as US and international law. The lawyers who wrote these memos should be investigated and prosecuted under our criminal laws, not only to achieve accountability for their roles in the cruel * Professor of Law, Thomas Jefferson School of Law; past president, National Lawyers Guild; deputy secretary general, International Association of Democratic Lawyers. The editor of The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press 2011), Professor Cohn testified in 2008 before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties about the Bush administration interrogation policy. This essay is based on the author’s presentation at the Society of American Law Teachers (SALT) Conference, Teaching in a Transformative Era: The Law School of the Future, Dec. 10–11, 2010, at the William S. Richardson School of Law, Honolulu, Hawai’i. Thanks to Ngai Pindell for organizing, and John Sims for presenting, on this panel. 1 GEORGE TENET, AT THE CENTER OF THE STORM: MY YEARS AT THE CIA 241 (2007) (emphasis added). 250 SEATTLE JOURNAL FOR SOCIAL JUSTICE treatment of other human beings, but also to discourage future administrations from engaging in this behavior by sending a clear message that they will be held accountable for their lawbreaking. The bar associations that licensed these attorneys to practice law should also investigate them and take appropriate action for violations of ethics rules. Using the ethical rules about advising clients in the analysis below, the Bush lawyers will be used as negative examples of how lawyers should behave. I. INTRODUCTION: THE TORTURE MEMOS John Yoo, former Deputy Assistant Attorney General in the OLC,2 and Jay Bybee, former Assistant Attorney General in the OLC,3 did not merely interpret the law in response to a request for guidance about interrogation procedures. Instead, in an August 2002 memorandum, they argued that it was legally permissible to torture and abuse detainees by redefining torture more narrowly than US law requires.4 They advocated for legal defenses to torture despite the categorical legal prohibition on torture, and they failed to cite relevant legal precedents in their memos. Another Bush OLC lawyer, Acting Assistant Attorney General Steven G. Bradbury, wrote memos that authorized, among other techniques, waterboarding.5 Bradbury admitted that waterboarding “induces a sensation 2 John Yoo is currently a law professor at the University of California, Berkeley School of Law. 3 Jay Bybee is currently serving a life term as a judge on the United States Circuit Court of Appeals for the Ninth Circuit. 4 Memorandum from Jay Bybee, Assistant Att’y Gen., U.S. Dep’t of Justice Off. of Legal Couns., to Alberto R. Gonzalez, Counsel Couns. to the President (Aug. 1, 2002), available at http://www.washingtonpost.com/wpsrv/nation/documents/dojinterrogationmemo20020801.pdf [hereinafter Bybee Memorandum]. It is widely known that although Bybee signed the memo, Yoo authored it. The two lawyers also authored a second memo dated August 1, 2002. See infra text and accompanying notes 57–62. 5 See e.g., Memorandum from Steven G. Bradbury, Principal Deputy Assistant Att'y Gen., U.S. Dep't of Justice Off. of Legal Couns., to John A. Rizzo, Senior Deputy Gen. Couns., Cent. Intelligence Agency (May 10, 2005), of drowning . . . based on a deeply rooted physiological response.”6 It is well-settled, however, that waterboarding constitutes tor (...truncated)


This is a preview of a remote PDF: https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1020&context=sjsj

Marjorie Cohn. Advising Clients to Commit War Crimes with Impunity: An Unethical Practice, Seattle Journal for Social Justice, 2018, Volume 10, Issue 1,