WCL The Torture Memos. Washington DC Nov. 3, 2009. Photo courtsey of Rick Reinhard.

Stephen Vladeck, Professor of Law at the American University Washington College of Law moderated a conference on the so-called U.S. “torture memos” on Tuesday, November 3, 2009. The conference consisted of a keynote address by Senator Sheldon Whitehouse (D-RI) and a panel of distinguished speakers including Daniel Levin, former acting Assistant Attorney General at the Office of Legal Counsel (OLC) in the Department of Justice (DOJ). The conference highlighted lawyers’ ethical duties as legal advisors and advocates in relation to the secret torture memos drafted by three senior lawyers at the OLC.

Throughout its tenure, the recent Bush administration requested legal advice from the OLC to determine if enhanced interrogation techniques such as waterboarding proposed by the U.S. Central Intelligence Agency (CIA) amounted to torture, as defined in the UN Convention against Torture, to which the United States is a party. From 2002 to 2007, OLC lawyers John Yoo, Jay Bybee, and Steven Bradbury wrote a series of legal memorandums that served to sanction and authorize what most would deem acts of torture committed by CIA interrogators against detained suspected terrorists.

Among the topics discussed during the conference was whether OLC lawyers, as the “constitutional conscience” of an administration, defied their ethical duty to speak honestly and exercise independent judgment in order to write memos that provided a predetermined answer on the legality of torture.

The conference highlighted two opposing arguments on the issue. On one side of the debate, Senator Whitehouse and certain legal experts criticize the legal memos as misinterpreting the U.S. Constitution, U.S. laws, international treaties, and the Geneva Convention’s absolute prohibition of torture. During the conference, the Senator prefaced his address with two beliefs: from the outside, the United States represents a beacon of light; and from within, the United States is continually educating the people about freedom. These two beliefs are undermined by interrogation techniques like waterboarding. According to the Senator, it follows that when lawyers circumvent their legal obligations and enable the practice of torture, they undermine the beliefs underpinning U.S. democracy.

The Senator supported the DOJ’s Office of Professional Responsibility’s (OPR) investigation of the OLC because he believes the senior OLC lawyers had breached their duties to canvass legal authority in good faith and present an accurate legal determination on what constitutes torture to the executive. For example, Senator Whitehouse argued that the OLC dismissed a key authoritative case, United States v. Lee, in its analysis of the meaning of torture. While the Circuit Court of Appeals for the Fifth Circuit held in Lee that waterboarding prisoners in order to obtain a confession amounts to torture, the torture memos adopted a narrower definition of torture than was used in that case. According to Yoo and Bybee, abuse constituted torture only if it resulted in organ failure or death. Some other panelists disagreed with the Senator on this point, arguing that the Lee case could be distinguished by the type of waterboarding used by the CIA, and criticized the Senator for not doing more to place the investigation of the torture memos at the forefront of Congressional debates.

On the opposing side of the ethics debate are those individuals claiming that the OLC lawyers were merely doing their job to advise the President when they authored the memos. Some of the panelists alluded to another ongoing debate about how much proof is required to render the torture memos a conspiracy aimed at justifying illegal acts of torture. They further suggested that if the United States were to aim for genuine transparency and accountability for all of the individuals responsible for ordering, designing, and justifying torture, not only the three lawyers but also the top echelons of the Bush administration would be held accountable. Critics argue that public opinion would not be in favor of such measures.

Although the OPR, as the DOJ’s ethics review board, started an investigation in 2004 to determine whether the OLC lawyers committed ethical violations in producing the torture memos, the report has yet to be released.