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