By Harvey Silverglate
Last Friday, I wrote in this space that there are ample grounds for launching ethics investigations against the Bush Administration lawyers who wrote formal opinions authorizing various “coercive interrogation” techniques that long ago overstepped the lines – a bit vague here and there, but not altogether unfathomable – the law uses to define torture. There is no prohibition – at least in theory – preventing investigations against lawyers if investigators can prove that the legal opinions the lawyers wrote are so far off the mark that one can confidently and reasonably conclude that they wrote their advice in bad faith. That kind of conclusion would be supported by evidence that the lawyers gave their advice not so much to inform and educate the agency operatives, as to give them legal cover and, concomitantly, the defense of ‘good faith reliance on the advice of counsel’ in case they were ever prosecuted for violating anti-torture statutes.
And last month, I argued that the Department of Justice’s prosecution of a Connecticut lawyer for obstruction of justice – for deleting child pornography from a client’s computer – provided a good preview of how the Department would treat the CIA’s destruction of interrogation videotapes, so long as they applied the same principles to DOJ lawyers as to outsiders.
Lo and behold, just this week the DOJ echoed this storyline when it indicted a well-respected Florida lawyer for providing legal advice to a second lawyer that the second lawyer’s acceptance of a large legal fee from an alleged drug kingpin was legal. (It is against the law to knowingly accept money acquired in the drug trade.) The DOJ prosecutors alleged that highly-regarded Miami attorney Ben Kuehne – who just happened to represent Al Gore in the legal dispute over the outcome of the 2000 election, when the Supreme Court installed that election’s loser in the White House – wrote the opinion in bad faith, in order to facilitate the acceptance of the fee by the kingpin’s high-profile trial lawyer, Roy Black.
Bloggers and other commentators are just beginning to focus on the increasingly obvious link between the DOJ’s war on lawyers and its war on civil society more generally. For various reasons, ranging from the brazen stonewalllng of Attorney General Michael Mukasey to the administration’s closely-held true-believer attitude toward its claims of expansive Executive power, DOJ officials are reluctant to call “coercive interrogation” by its rightful name – torture. If they will not do that, they are even less likely to prosecute or start ethics investigations against government lawyers who authorized torture techniques that lawyers, legal scholars, and laymen all recognize are illegal and immoral. (Of course, as I noted earlier, state bar authorities may arguably commence ethics investigations of lawyers for transgressions committed while they were in federal service.)
In his own take on the connection between the Kuehne prosecution and the torture memos, Scott Horton explains that in “United States v. Altstoetter[,] … two officials of the [Reich's Ministry of] Justice … gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot,” leading to their conviction at the Nuremberg war crimes tribunal in 1947. “And in fact the lawyers got off lightly,” he writes: facing “[t]en years … they were released after seven years for good behavior.”
So maybe prosecution is in order, given the legal precedent for it. But let’s be generous and say that prosecution would be overkill – or let’s be pragmatic and say that in this political climate it simply won’t happen. But if a respected Miami lawyer can be indicted for writing a legal opinion – which many Florida lawyers believe to have been written in good faith – on a drug-money question, then surely government lawyers can and should have to undergo, at minimum, an ethics investigation for selling out themselves, the legal profession, and American politico-legal values in order to tell Bush and Cheney that they could torture prisoners to their hearts’ content.