On Lawyers and Torture

There's been much commentary the past weeks over the legal memos released by the Obama administration, in which lawyers for the Bush administration were asked to give an opinion as to the legality of certain so-called "enhanced" interrogation techniques (which were of sufficient severity and cruelty that most people would call them "torture").  I've read the memos (which are available here), albeit not word-for-word, and find myself disagreeing with those who are calling for criminal prosecutions of the lawyers who wrote them.  Why?  Three reasons.

First, it ignores the difference between advice and action, between saying that something can be done and actually doing it.  The memos did not say, after all, "you must torture these people."   The decision to engage in torture and the execution of that decision were taken by others.

Second, it misperceives the role of a lawyer.  When I read the memos, what I see happening is what happens all the time:  A lawyer gives an analysis of the law that permits his client to take an action that the client wants to take.  The lawyer gets there by using the same process lawyers use all the time, parsing down words and subjecting them to a hot gaze for long enough to make them melt.  This is the trade secret every good lawyer knows:  Detached from the real world, words have no meaning.  Or more accurately, they have any meaning.  So Bybee can say in his memo that waterboarding doesn't cause "severe pain or suffering" within the meaning of the statute, because even though it may inflict "fear or panic," it doesn't actually cause any physical harm and therefore can't cause "pain," and because "suffering" requires some element of duration, and "the waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."  Thus waterboarding causes no pain or suffering.  An analysis horribly contrary to common sense and utterly lacking in humanity and wisdom, to be sure, but not irrational; you can read more ridiculous legal analysis daily in the decisions of courts all over the country.  The intellectual nature of their work drives lawyers and judges away from reality, into a place where you don't really think about the realm of the living, where words do have -- are supposed to have -- some real, defined meaning.  The intellectual nature of their work drives lawyers and judges into a realm where it is easy to forget that it is an actual human being strapped to the board.

(A footnote here:  I would like to think that lawyers in public service have some more heightened sense of justice with a capital "J" when they do their work.  I know that I do.  I try always try to remember that although I do my work directly for staff who may want a certain outcome, or for a board who may want a certain outcome, that there is beyond those  folks an entity and, beyond that, a public, to whom I owe a duty as well.  I've been fortunate that the two almost never conflict, but I hope in a pinch that my advice is tempered by that recollection, and by common sense.  And to this extent, the memos are disappointing, if unsurprising.  But then I've never been in Bybee's place.)

Third, expecting lawyers to act as firewalls for the protection of our liberties, or our values, is foolhardy.  At the limit, neither lawyers, nor judges, will stand in the way if the passion, the fear, the panic, the contempt is great enough.  The finely-honed reams of opinions and opinions and opinions of courts and judges disecting and analyzing constitutional rights finer and finer won't hold up for one instant if the wave is high enough.  It hasn't in the past, it won't in the future.  God help us if we are relying on lawyers to save us from the truly unthinkable.  Read Bybee's memo if you have any doubt about this.

The truth is that it wasn't lawyers who planned and carried out torture.  It was our government, directed by our elected officials.  Prosecuting lawyers for failing to preempt our government's moral mistake would be wrong.  They are not supposed to be our conscience, they are not there to save us from our own responsibility, and ultimately they can't save us from ourselves.