an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I've been bemused by the fact that my interchange with Senator Graham has been making the rounds of the internet. For the record: I thought it was a perfectly civil exchange, except that we both happened to be talking at the same time. Since I have an uninterrupted forum here, I'll explain our dialogue about spiders a bit more clearly than the hearing gave me an opportunity to do. Senator Graham asked whether it would be torture to put a spider in the cell of a phobic detainee. The answer is rather clearly no, except if it is accompanied by a death threat -- for example, telling the detainee that it is a deadly spider -- and if the mental suffering the threat causes is "prolonged." The definition of torture in U.S. law defines "severe mental pain or suffering" to include the prolonged mental pain or suffering induced by death threats. The Senator's question about spiders was not pure science fiction: the newly-released Bybee/Yoo memo approved the technique of placing an insect into a close-confinement box with the supposedly-phobic Abu Zubaydah. "As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect in the box, but you will actually place a harmless insect in the box, such as a caterpillar." (I can only begin to imagine the excitement running through headquarters when some Einstein of the interrogation world breathlessly announced that he had devised this technique.) The memo then warns the inventive interrogator that to avoid committing a predicate act of torture, "you must inform him that the insects will not have a sting that would produce death or severe pain." Here is my opening statement:
Testimony of David Luban Senate Judiciary Committee, Subcommittee on Administrative Oversight and the Courts Hearing: “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration” May 13, 2009
Chairman Whitehouse and members of the subcommittee.
Thank you for inviting me to testify today. You’ve asked me to talk about the legal ethics of the torture and interrogation memos written by lawyers in the Office of Legal Counsel. Based on the publicly-available sources I’ve studied, I believe that the memos are an ethical train wreck.
When a lawyer advises a client about what the law requires, there is one basic ethical obligation: to tell it straight, without slanting or skewing. That can be a hard thing to do, if the legal answer isn’t the one the client wants. Very few lawyers ever enjoy saying “no” to a client who was hoping for “yes”. But the profession’s ethical standard is clear: a legal adviser must use independent judgment and give candid, unvarnished advice. In the words of the American Bar Association, “a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” 
That is the governing standard for all lawyers, in public practice or private. But it’s doubly important for lawyers in the Office of Legal Counsel. The mission of OLC is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes. OLC’s job is not to rubber-stamp administration policies, and it is not to provide legal cover for illegal actions.
No lawyer’s advice should do that. The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct;  they require competence; and they demand that lawyers explain enough that the client can make an informed decision, which surely means explaining the law as it is.  These are standards that the entire legal profession recognizes.
Unfortunately, the torture memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and in places deeply eccentric reading of the law. The memos cherry-pick sources of law that back their conclusions, and leave out sources of law that do not. They read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques.
My written statement goes through the memos in detail, Mr. Chairman. Let me give just one example here of what I am talking about. Twenty-six years ago, President Reagan’s Justice Department prosecuted law enforcement officers for waterboarding prisoners to make them confess. The case is called United States v. Lee.  Four men were convicted and drew hefty sentences that the Court of Appeals upheld. 
The Court of Appeals repeatedly referred to the technique as “torture.” This is perhaps the single most relevant case in American law to the legality of waterboarding.  Any lawyer can find the Lee case in a few seconds on a computer just by typing the words “water torture” into a database. But the authors of the torture memos never mentioned it. They had no trouble finding cases where courts didn’t call harsh interrogation techniques “torture.” It’s hard to avoid the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury chose not to mention the Lee case because it casts doubt on their conclusion that waterboarding is legal.
Without getting further into technicalities that, quite frankly, only a lawyer could love, I’d like to briefly mention other ways that the torture memos twisted and distorted the law. The first Bybee memo advances a startlingly broad theory of executive power, according to which the President as commander-in-chief can override criminal laws. This was a theory that Jack Goldsmith, who headed the OLC after Judge Bybee’s departure, described as an “extreme conclusion” that “has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.” It comes very close to President Nixon’s notorious statement that “when the President does it, that means it is not illegal”—except that Mr. Nixon was speaking off the cuff in a high pressure interview, not a written opinion by the Office of Legal Counsel.
The first Bybee memo also wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists “severe pain” as a symptom that might indicate a medical emergency. Mr. Yoo flips the statute and announces that only pain equivalent in intensity to “organ failure, impairment of bodily function, or even death” can be “severe.” This definition was so bizarre that the OLC itself disowned it a few months after it became public. It is unusual for one OLC opinion to disown an earlier one, and it shows just how far out of the mainstream Professor Yoo and Judge Bybee had wandered. The memo’s authors were obviously looking for a standard of torture so high that none of the enhanced interrogation techniques would count. But legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted. I should note that on January 15 of this year, Mr. Bradbury found it necessary to withdraw six additional OLC opinions by Professor Yoo or Judge Bybee.
Mr. Chairman, recent news reports have said that the Justice Department’s internal ethics watchdog, the Office of Professional Responsibility, has completed a five-year investigation of the torture memos. OPR has the power to refer lawyers to their state bar disciplinary authorities, and news reports say they will do so. I have no personal knowledge about what OPR has found. Presumably, investigators were looking either for evidence of incompetence, evidence that the lawyers knew their memos don’t accurately reflect the law, or evidence that process was short-circuited.
This morning I have called the torture memos a legal train wreck. I believe it’s impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law. But what I or anyone else believes is irrelevant. Ethics violations must be proved, by clear and convincing evidence, not just asserted. That sets a high bar, and it should be a high bar.
In closing, I would like to emphasize to this Committee that when OLC lawyers write opinions, especially secret opinions, the stakes are high. Their advice governs the executive branch, and officials must be told frankly when they are on legal thin ice. They and the American people deserve the highest level of professionalism and independent judgment, and I am sorry to say that they did not get it here.
 ABA Model Rules of Professional Conduct, Rule 2.1, cmt. 1. The identical rule and comment appears in the Pennsylvania Rules of Professional Conduct and the D.C. Rules of Professional Conduct. (I am told that Professor Yoo belongs to the Pennsylvania Bar, while Judge Bybee was a member of the D.C. Bar and is currently a judicial member. The Nevada Bar, Judge Bybee’s second state of admission, has the identical Rule 2.1 but includes no interpretive comments.) The rule itself states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.” Model Rule 2.1.
 “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….” ABA Model Rule 1.2(d).
ABA Model Rule 1.1. “A lawyer shall provide competent representation to a client.” The D.C. Bar’s rules—pertinent to Mr. Bradbury, Judge Bybee, and Professor Yoo—add: “A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters.” D.C. Rules of Conduct 1.1(b).
ABA Model Rule 1.4(b), “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
744 F.2d 1124 (5th Cir. 1984). The Court of Appeals did not use the label “waterboarding,” which had not yet been invented, but the description of the technique makes it clear that it is almost identical to waterboarding. It “included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.” Brief of Petitioner-Appellee, United States v. Lee, No. 83-2675 (5th Cir. Nov. 9, 1984); see Evan Wallach, Drop By Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Colum. Transnat’l L. Rev. 468, 502-03 (2007).
They drew sentences of two years (with three years suspended), four years, and ten years, respectively. Ex-Sheriff Given 10-Year Sentence, N.Y. Times, Oct. 27, 1983, at A11.
Although Lee pre-dates the Convention Against Torture and the U.S. torture statutes, there is no reason to believe that the judges would have described it differently after these laws were enacted. The statutes’ definition of torture as severe mental or physical pain or suffering is neither unusual nor technical. Indeed, a standard pre-CAT dictionary definition of torture describes it as “severe or excruciating pain or suffering (of body or mind)…” The Compact Oxford English Dictionary 3357 (1971); likewise The American Heritage Dictionary 1356 (1976)(“severe physical pain”). Other Lee-era dictionaries use formulations that do not in any way suggest that at the time of Lee ‘torture’ meant something milder than the statutory standard—Webster’s Third (1971) says “intense pain”; Webster’s Second (1953) says “severe pain” and “extreme pain. “ Although Lee was a civil rights case, Mr. Bradbury did not hesitate to refer to another civil rights case as an authority pertinent to the enhanced interrogation techniques. Bradbury “CID” memo, May 30, 2005, p. 33 (discussing Williams v. United States, 341 U.S. 97 (1951)(beating confessions out of subjects with a rubber hose is a violation of their civil rights).
For example, Mr. Bradbury’s May 10, 2005 opinion on individual CIA techniques cites Hilao v. Estate of Marcos, 103 F.3d 789, 790-91 (9th Cir. 1996), which describes numerous despicable tortures performed on the plaintiff, including waterboarding. Mr. Bradbury writes that “the court reached no conclusion that the technique by itself constituted torture. However, the fact that a federal court would even colloquially describe a technique that may share some of the characteristics of the waterboard as ‘water torture’ counsels continued care and careful monitoring of the technique.” Bradbury “techniques” memo, p. 44, note 57. I find it disturbing that Mr. Bradbury chooses a case where “the court reached no conclusion” that waterboarding is torture, without mentioning Lee, a case where waterboarding was the only technique at issue, and the court described it as torture in nine places. Professor’s Yoo and Judge Bybee’s August 1, 2002 “torture” memo includes an appendix that purports to list all “[c]ases in which U.S. courts have concluded the defendant tortured the plaintiff.” Lee does not appear on this list. Perhaps it is because Lee was criminal, not civil, and therefore had no plaintiff; or perhaps it is because the court calls the technique ‘torture’ without formally “concluding” that it is torture. Even if these are the rationalizations for omitting Lee from the list, such hypertechnicality is wholly inappropriate for an opinion offering legal advice to a client. I note that Professor Yoo and Judge Bybee also did not mention Lee in the August 1, 2002 “techniques” memo which actually analyzes the legality of waterboarding.
Other significant omissions are the failure of the August 1, 2002 “torture” memo to discuss or even mention the Steel Seizure Case in its analysis of the President’s commander-in-chief power; and, in the discussion of the necessity defense, its failure to mention United States v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001), which calls into question whether federal criminal law even contains a necessity defense if no statute specifies that there is one. Likewise, the opinion fails to mention that there is no reported case in which a federal court has accepted a necessity defense for a crime of violence. In one place, the opinion may fairly be said to falsify what a source says. Discussing whether interrogators accused of torture could plead self-defense, the memo says: “Leading scholarly commentators believe that interrogation of such individuals using methods that might violate [the anti-torture statute] would be justified under the doctrine of self-defense.” The opinion refers to a law review article, Michael S. Moore, Torture and the Balance of Evils, 23 Israel L. Rev. 280, 323 (1989). What Moore actually says on the page cited is nearly the opposite: “The literal law of self-defense is not available to justify their torture. But the principle uncovered as the moral basis of the defense may be applicable” (emphasis added). Notice also the difference between OLC’s assertive “would be justified” and Prof. Moore’s cautious “may be applicable,” which in any event refers to his own moral argument, not to existing law.
Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 149 (2007).
 “We do not agree with those statements. Those other statutes define an ‘emergency medical condition,’ for purposes of providing health benefits, as ‘a condition manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that one could reasonably expect that the absence of immediate medical care might result in death, organ failure or impairment of bodily function. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C. § 1395w-22(d)(3)(B) (2000); id. § 1395dd(e) (2000). They do not define ‘severe pain’ even in that very different context (rather, they use it as an indication of an ‘emergency medical condition’), and they do not state that death, organ failure, or impairment of bodily function cause ‘severe pain,’ but rather that ‘severe pain’ may indicate a condition that, if untreated, could cause one of those results.” Memorandum from Daniel Levin, Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A, Dec. 30, 2004, note 17. The Medicare statute clearly does not intend to define “severe pain.” On the contrary, it assumes that a “prudent lay person” knows what severe pain is: that is why the statute lists it as a symptom that the prudent lay person “could reasonably expect” might indicate a medical emergency.
Steven G. Bradbury, Memo for the Files, Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (Jan. 15, 2009). Posted
by David Luban [link]