By Harvey Silverglate
So the truth about waterboarding finally comes out, thanks in no small part to the Boston Globe's Charlie Savage among the most astute journalists to chronicle the sins of omission and commission made by the Bush administration and its lawyers over the last seven years. In this morning's Globe, Savage reports that Attorney General Michael Mukasey has refused to investigate the CIA’s torture practices, in part because investigating those who relied on the advice of legal counsel would undermine the credibility of the government’s lawyers. According to this logic, Savage reports, if Mukasey were to second-guess the Department of Justice’s legal conclusions, “officials would stop trusting other legal opinions from the department.”
Fair enough. It’s very important, in terms of preserving the rule of law, that government operatives and officials be able to rely on the legal advice of administration lawyers. And as I have noted in the past – both in my Boston Phoenix “Freedom Watch” column from June 18, 2004, as well as an entry on this blog from November 2007, – there is little doubt that the lawyers in Bush’s Office of Legal Counsel (and other offices in the Justice Department) were issuing their bogus legal opinions precisely in order to give the torturers a “good faith reliance on the advice of counsel” defense, in case criminal investigations or prosecutions were ever brought against the torturers.
I have to grudgingly admit that I agree with Mukasey to an extent. Indeed, why should a CIA torturer be investigated and indicted if he had in his hand a legal opinion – albeit a secret opinion not subject to scrutiny by Congress, much less by the nation’s independent bar – drafted by lawyer with superb credentials and proffered as the Executive Branch’s official (though secret) position on the matter?
But acknowledging that the CIA’s torturers might have been acting in good faith – that they believed the lawyers when the lawyers told them certain highly coercive interrogation techniques were legal – hardly ends the inquiry. Why are these lawyers not being investigated in order to determine whether they wrote their legal opinions in good faith, or instead made up fanciful legal theories to appease the administration’s interest in taking the gloves off when it came to dealing with suspected terrorists?
It’s hard for a CIA operative to determine whether such a legal opinion is bogus, and for policy reasons we probably wouldn’t want bureaucrats and agents second-guessing the Executive Branch’s legal opinions in any event. But surely the duly constituted authorities within the legal establishment, including the Attorney General and his legal ethics experts, if not the bar authorities in the states where these lawyers are members of the bar, should be able to figure out whether the opinions pass even the “giggle test” that separates legitimate legal analysis from chicanery.
These legal opinions were drafted by John Yoo (once Assistant Deputy Attorney General, but now safely ensconced in a tenured position at the UC Berkeley Law School – formerly known as Boalt Hall), David Addington (legal aide to Vice President Dick Cheney), and Jay Bybee (rewarded for authorizing torture with a judgeship on the U.S. Court of Appeals for the Ninth Circuit). My own view is that their legal analyses and conclusions are so far from accepted American law that a legal ethics expert might well conclude that they were written in bad faith. Of course, one has to surpass a high threshold to conclude that a lawyer had deliberately misrepresented U.S. and international law in order to provide a legal basis for authorizing torture. But I think Yoo, Addington and Bybee might qualify.
Prominent legal scholars like Yale Law School’s dean, Harold Koh, and the University of Chicago Law School’s Cass Sunstein, have agreed, calling the opinions “abominable” and “embarrassingly weak.” And as Yale’s Jack Balkin points out, there’s a difference between disagreeing with settled law when you are analyzing it as a law professor, and ignoring settled law when you are advising the United States government.
In any event, it’s high time for some quality control, not to mention accountability, to be exerted over Bush Administration legal opinions. That leads to the question, what is to be done? Instead of investigating “the client” (that is, the CIA operatives), why not investigate the lawyers? Investigators could seek their disbarment for offering bad faith legal opinions to authorize torture, which is plainly illegal under United States and international law. That would be a less drastic alternative than Shakespeare’s suggestion in Henry the Sixth (Part II) that “the first thing we do, let’s kill all the lawyers," a remedy that no civilized society would tolerate, just as no civilized society should tolerate torture. But an ethics investigation would be a reasonable start. And, of course, I would insist that we accord Yoo, Addington, and Bybee – and anyone else involved in drafting the opinions – all due process, even though they have done everything in their power to deny it to their torture victims. Some of us are still serious about the majesty of the recently somewhat battered notion of “the rule of law.”