BOOK THE FIRST. Chapter the seventh. Of the KING’S PREROGATIVE.
Blackstone Weekly is sorry for the long hiatus between entries. Given that this section of the Commentaries is all about the legal limits on executive power, I realized that I had to say something about the recently released torture memos, and it’s taken me this long to get some kind of grip on what I think about them. In this chapter, Blackstone explains that while the king himself (or herself — see my previous post, “Blackstone’s Sister”) is immune from legal liability, the people who advise him are not. If the king’s power is abused, his advisors will be called “to a just and severe account.” (p. 244) From there, you’d think it would be an easy segue to some trenchant remarks about how our own sovereign’s legal advisors failed in their duty to prevent a horrid abuse of arbitrary power. And there my troubles began.
My problem is that, unlike a lot of the legal experts opining on these memos, it is not at all clear to me what’s wrong with the legal analysis in what looks like the worst of them. Take the one written on August 1, 2002 that explains why the specific, horrific techniques the CIA plans to use are A-okay. I have no trouble seeing that that conclusion is wrong, or, rather, that it is WRONG! WRONG! WRONG! But I’m less sure that what’s wrong with it has much to do with any lawyer’s failure to correctly analyze the law or to go about that analysis in a legally ethical fashion.
This is disturbing. I mean, we’re talking here about a government attorney writing up a legal argument for why it is okay to put somebody into a box with insects. (Aug. 1, 2002 memo at 3) If I don’t know what’s legally wrong with that, what good is law to me? And what good am I to the law? And yet, I don’t know.
There are two main explanations I’ve heard from other lawyers about what went legally wrong here. Neither one seems right to me, but going over them helps illuminate the problem. One critique is that the lawyers who wrote the memos set out to give Bush administration officials what they wanted, i.e., a legal license to do the awful things the memos describe, rather than to faithfully interpret what the law would allow. David Luban, a well-known scholar of legal ethics has criticized the memos on this score. He says the memo writers failed in their professional duty to “tell it straight, without slanting or skewing.” (May 13, 2009 testimony before Judiciary Committee) Luban acknowledges that this can be hard to do in the sense that nobody likes to disappoint a client. But he seems to think that competent, honest lawyers can and should analyze the law relevant to a client’s desire in a ‘straight, unslanted’ way, unshaped by the client’s goals. I disagree.
I certainly agree with Luban (and the ABA) that a lawyer advising a client has a duty to give “candid advice” about the law even when “that advice will be unpalatable to the client.” (Id.) But I disagree that it is desirable — or possible — for a lawyer to ignore her client’s desire and produce a memo that would (as Luban contended in testimony attacking a precursor of the memos released last month) “say the same thing it would even if you imagine your client wants the opposite from what you know he wants.” (May 6, 2008 testimony) And I am mystified and exasperated by the suggestion that this kind of neutrality is, or should be, the professional standard.
A lawyer’s bottom line job — and ethical duty — is to help her client. Of course that doesn’t mean just telling the client what she wants to hear — partly because the lawyer has an ethical duty to be honest about what she believes the law says, but also because that wouldn’t really help the client. Clients need lawyers to give them a sense of how the client’s desires map onto the legal landscape — how existing and potential legal rules, policies and decisions might facilitate, block or shape what the client wants to do. Legal interpretation is worthless and deceptive if it ignores the aspects of the law that are problematic for the client’s project. But it would be perverse, and arguably unethical, for a lawyer to ignore the client’s goal as she went about interpreting the law.
More to the point, I don’t think that it is possible to produce this kind of perspectiveless view of law. Legal analysis is a matter of interpretation, and any interpreter has a point of view. If I reject the client’s perspective, whose outlook should I adopt? My own? That of some imagined tribunal? The average American? Honestly, it is not possible to write a memo that looks the way it would if I were trying to see if the opposite goal were legal, because there is no such memo. The law looks different depending on what you want to do — so those are two different memos. Now, that doesn’t mean that they should reach two different conclusions. A lawyer for a shopkeeper who wants an awning over her storefront might agree with the neighboring store owners that zoning law forbids it. But she should get to that position in spite of her efforts to find a valid interpretation of the law that would support her client’s goals, not because she ignored, or claimed somehow to transcend, those goals.
The question this raises, of course, is how the lawyer knows when to give up trying to get the law to take her client where she wants to go and tell the client that in her opinion it is just not possible. The second critique I’ve heard about the torture memos suggests an answer to this question: the lawyers writing these memos should have been able to tell that the interrogation methods they described were illegal by how hard they were having to work to prove that they were legal. This is the view put forward by Peter Shane, author of a recent book on executive power, who characterizes the memos as “about as monstrous a corruption of the lawyering process as one can imagine.” (Duke Executive Watch Blog) Professor Shane offers this advice for government lawyers: “If it takes you more than a paragraph to explain persuasively why something is not torture, it’s torture.” (Id.)
That certainly has a nice ring to it. But it just can’t be right that if it’s difficult to reach a legal conclusion, and requires a lengthy discussion to get there, that conclusion is necessarily wrong. It does mean that you can’t honestly or accurately present that conclusion as easy and unproblematic. But these memos don’t really give that impression; as Shane suggests, they are nothing if not effortful.
Professor Shane is right, though, that the most disturbing feature of these memos is the way they go on and on with obsessive specificity about the awful practices they describe, breaking them down into a series of detached details that create an oddly pornographic effect: “The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual’s face. The fingertips are kept well away from the individual’s eyes.” (Aug. 1, 2002 memo at 2.) So it’s appealing to think that’s how you know when you’ve gone wrong as a lawyer — when you read back over the memo, or opinion, or brief you’ve written and the factual details refuse to dissolve into the arguments, when you can’t escape a kind of fetishistic attachment to certain descriptions of objects, bodies, times, numbers, procedures. When that happens, maybe you ought to stop and think ‘hmm, something seems wrong here. . . .’
But wait a minute, isn’t it is just this kind of extraordinary cataloguing of insoluble details that we all recognize as typically “legal” or lawyerly? Verbally dissecting and scrutinizing the particulars of some situation to see whether it can be said to fit a set definition is a classic mode of legal inquiry. When the question is “what is chicken” and the author is a famous appellate judge, it makes for an ironic casebook classic. When the question is “what is torture,” not so much. But the arduous, snaillike slog through paragraph after paragraph of repetitive prose as one pickayune fact after another is dutifully segregated and held up against a few ritually significant terms is not an atypical or degenerate feature of these legal memos. It’s a generally shared, indeed, paradigmatic, feature of much respected legal analysis. And it’s no wonder, really, that when the details at stake involve human bodies, legal writing verges on pornography. In law, as in porn, the whole picture or whole story is held at bay while the viewer/reader is led to engage with certain selected details of the picture in repetitive, highly formalized ways. What makes legal analysis rigorous is what makes porn arousing — a kind of resistance to ordinary narrative scale and flow — a refusal to allow certain aspects of the story to get submerged into a familiar plot and mise en scene. And now that I think of it, yes, porn is a kind of analysis.
Maybe the point is that, outside of pornography, the things we do to human bodies and the sensations those acts produce should just never be subjected to this kind of fragmented hypertechnical review. Maybe a more holistic analysis should have done the trick. No. If the memos eschewed their skin crawling itemization of the procedures they end up authorizing (“The individual is bound securely to an inclined bench, which is about four feet by seven feet . . . . The water is usually applied from a canteen cup or small watering can with a spout.” August 1, 2002 memo at 3-4.) in favor of a more general approach, describing waterboarding, say, as ‘forced, simulated drowning with a wet cloth’ — that would make it easier, not harder to authorize those procedures. Whatever else, a legal analysis is supposed to force us to confront — and keep confronting — the most difficult aspects of what it is we’re trying to decide (or argue for or against), exactly to ensure that we don’t make those judgments (or arguments) without facing up to what they will mean in the real world. It is, in fact, the memos’ relentless catalogue of grimly parsed assaults on the bodies of the prisoners that convinces me and every reader I know that the actions they describe are torture. Ironically, if the memos had concluded quickly and summarily that all the proposed techniques were not torture, they would be at once more persuasive and less lawyerly.
If anything, it may be that the memo writers could and should have worked even harder and at greater length. Several analysts (including Luban) have pointed to the memos’ failure to mention a 1984 federal appeals court decision affirming the convictions of several Texas law enforcement officers for subjecting prisoners to “water torture.” United States v. Lee, 744 F.2d 1124 (5th Cir. 1984). Supposedly, the “torture” at issue in Lee was waterboarding. (I can’t tell from the published opinion; I’d have to search the trial court record, which costs 26 bucks, so forget it). Luban is right that any half-decent search for court decisions involving torture would have turned up U.S. v. Lee, and Justice Department lawyers could have picked up the phone to find out whether what was going on there was waterboarding. If it was, that case should be in the memo. Heck, even if the case is about some different kind of water torture, they probably should have put it in the memo and compared the conduct Justice prosecuted in 1984 to the conduct they were authorizing 20 years later.
But here’s the thing. Just as any good lawyer could find that case, any good lawyer could distinguish it. Assume that the trial court records show what David Luban says they do — that the Texas officers in Lee were convicted of civil rights violations for “waterboarding prisoners to make them confess,” that wouldn’t necessarily mean that waterboarding constituted a form of torture under the law the memo analyzed. And it wouldn’t necessarily mean it was beyond the legal pale for interrogations in other circumstances.
I wish that I could share the view that these memos are a clear failure of legal craft and ethics. I badly want to believe that our legal system at least has the potential to prevent government 0fficials from torturing people, and it would be much easier to sustain that belief if I could put what happened here down to the unprofessional conduct of the lawyers who wrote those memos. But, frankly, it seems to me that that point of view is just the latest version of the “few bad apples” story about our government’s use of torture. For lawyers, it’s especially appealing. If these memos are obviously flawed legally, then I’m in the clear. As a conscientious lawyer I can never be implicated in such terrible acts, and the legal system with which I am identified cannot reasonably be used to allow such horrors.
But the truth is that our laws are interpreted every day by conscientious lawyers to allow — even to require — all kinds of dreadful things. Indeed one of law’s main social roles seems to be to institutionally suppress individual moral scruples in the service of government actions from which reasonable and empathic people would otherwise shrink. We use legal interpretation to take children from their parents, to lock up young men for the rest of their lives, to evict families from their homes, to send people back to countries that they fled in terror. And those are all relatively common, uncontroversial examples of legal violence, all of which are accompanied by myriad legal writings that purport to legitimize them in various degrees of detail.
It may be that the torture memos are different — that their conclusions rest on weaker interpretations of the law than the thousands of legal memos, court briefs, and judicial decisions that authorize other forms of state violence. But I can’t tell that by reading them. I devoutly wish it were possible to distance myself as a lawyer from the authorization of such horrors, but in four weeks of trying, I haven’t found a way.
So what’s left of my belief that law can restrain arbitrary state violence? Something Blackstone says may be about all I can offer here, namely, that the best proof of law’s limiting effect is the “power of discussing and examining, with decency and respect, the limits of the king’s prerogative.” (p. 230) Sovereign authority is, after all, “[a] topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject.” (Id.) Answering Blackstone, you might say that the torture memos are an attempt to sanctify the most profane aspect of sovereign power. Or, you might say that with their public release these memos continue the project Blackstone celebrates, the endless opening of government power to a — flawed, partial, subjective, ultimately disappointing — legal analysis. It would be much more comfortable to believe that there is an objectively correct analysis of the law out there somewhere that the memo writers could have delivered that would necessarily have prevented any interrogation techniques that we now must acknowledge are forms of torture. But given that I don’t think that’s the case, I have to be glad that there were legal memos written about such things at all, glad that the Obama administration saw fit to release them, and, ironically, glad the memo writers went about their task with the dogged legalistic attention to detail that exposes and allows us to “discuss and examin with decency and respect” the atrocity of the policy they authorized.