The Washington PostDemocracy Dies in Darkness

The ‘torture’ memos prove America’s lawyers don’t know how to be ethical

A barbed wire fence surrounds a military area is in the forest near Stare Kiejkuty village, close to Szczytno in Northeastern Poland. (Kacper Pempel/Reuters)
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The recently released Senate Intelligence Committee report on the CIA’s interrogation program reinforced an uncomfortable truth: lawyers were complicit in approving torture.

This isn’t a fluke. I attended law school soon after the 2002 ‘torture’ memos went public. In class, we analyzed how government lawyers like John Yoo, William J. Haynes, and Jay Bybee flouted international law in order to condone the CIA’s outrageous interrogation techniques.

In fact, lawyers have historically helped justify America’s most heinous acts. And the problem is structural.

In law school, students are imbued with the understanding that their utmost responsibility is helping clients get what they want. Even scholars disagree whether the role of the government lawyer is to disperse neutral advice or act as a purveyor of the client’s policy.

Nonetheless, clients and government officials, like the Bush administration and CIA officials—Cheney includedcontinue to point to the lawyers’ authorization of enhanced interrogation techniques as justification for the program. And while the Senate report found that the CIA’s interrogation techniques went beyond those approved by the Justice Department, some techniques the Justice Department (and OLC) did approve—including simulated drowning—are clearly torture under the United States’ implementation of the United Nations Convention Against Torture. 

Lawyers are, of course, circumscribed by ethical rules promulgated by the American Bar Association and individual state bars, which include duties of competence, confidentiality, and the avoidance of conflicts of interest. But those are insufficient to guide lawyers practicing at the margins.

An enhanced ethical regime is called for within the legal profession, perhaps one modeled after that of the medical field. Medical ethics are grounded in explicit principles denoting both the duties of the physician and the obligations inherent to the provider-patient relationship—the most well-known of course being the Hippocratic Oath’s exultation to “first, do no harm.”

In the legal context, this would require the creation of ethical principles that explicitly state that service to the client does not trump duty to the laws and Constitution, and that complicity in acts of torture and other such unlawful abuses would constitute a disciplinary offense—even if done on behalf of the president of the United States.

The “do no harm” proscription in the medical field has been interpreted by international bodies as prohibiting physicians from engaging in the kinds of acts authorized by the DOJ. In the 1975 “Declaration of Tokyo,” the World Medical Association prohibited physician-condoned torture: “The utmost respect for human life is to be maintained even under threat, and no use made of any medical knowledge contrary to the laws of humanity.” And the U.N. General Assembly passed a resolution in 1982 barring doctors from engaging in torture and cruel, inhuman and degrading treatment, through either direct participation or acts of complicity.

That’s not to say that medical professionals have not violated these principles, including during the so-called war on terror and in the continuing participation of doctors in state-sanctioned executions. The institution of such principles in the legal field would likely face similar challenges, as government lawyers choose service to power over the obligations of their practice. But the medical profession has at least recognized the risks inherent to doctoring in crisis and at the behest of the government, reinforcing the application of medical ethics in such circumstances. The World Medical Association, for instance, drafted guidelines concerning the duty of doctors during armed conflict, which state “medical ethics in times of armed conflict are identical to medical ethics in times of peace.”

There is no such explicit interdiction for lawyers. And in fact, the legal profession has done little to highlight the pervasive risk of dual loyalty by the government lawyer, so as to prevent future abuses of the power and privilege imbued by a law degree. We as a profession must recognize that our current ethical rules are not enough, particularly for those lawyering at the margins. A greater mandate is called for—whoever the client, first, do no harm.