To The Readers Of The Metropolitan Corporate Counsel:
The Lawyers' War On Terrorism And Human Rights
At the Law Day Dinner in 2007, the Boston Bar Association recognized 36 Boston lawyers for their pro bono representation of Guantanamo Bay detainees. In presenting the award, then BBA President Jack Cinquegrana stated "[e]ven as these lawyers have suffered the derision of those who confuse political debate with disloyalty, and the preservation of individual rights with disrespect for the public's protectors, they courageously forge ahead to uphold principles that we as a profession know are sacred."
Lawyers did not always play such a laudatory role in the years following September 11. In The Dark Side, ranked as one of The New York Times ten best books of 2008, Jane Mayer recounts the Bush administration's abuse of civil liberties in its war against terrorism. What is particularly troubling is the participation of government lawyers in sanctioning the administration's misdeeds. Among other things, lawyers supported the indefinite detention of both foreign nationals and U.S. citizens as "illegal enemy combatants" without providing them any meaningful opportunity to contest their status. Lawyers approved the government's secret eavesdropping on American citizens' telephone conversations and other communications without warrants required by the Foreign Intelligence Surveillance Act. They endorsed the extradition of terrorist suspects to countries such as Egypt, Morroco, Syria and Uzbekistan where they were tortured. And they authorized the Central Intelligence Agency and military to use "enhanced" interrogation techniques themselves, including beatings, confinement in small crates, and simulated drowning known as waterboarding.
According to Mayer, the vice president's counsel, David Addington, played a central role in devising the administration's legal strategy for the war on terror. Just as important was the part played by Berkeley Law Professor John C. Yoo when he served as deputy chief in the U.S. Department of Justice's Office of Legal Counsel. The OLC is perhaps the most prestigious and powerful legal office in the federal government; its opinions generally are binding on the entire executive branch. Through a series of written memoranda issued in the immediate aftermath of September 11 through the summer of 2003, the OLC established the legal foundation for the administration's efforts to fight terrorism at any cost to human rights.
Many of those memoranda have been publicly released - several as recently as in early March 2009 - and reading the OLC's legal positions is chilling. In its interrogation memoranda, for example, the OLC misinterprets the criminal torture statute so that it applies only in the narrowest of circumstances. The requirement for "severe" physical pain is twisted to require pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."The OLC posits that mental pain or suffering is severe only when the psychological harm is of "significant duration, i.e., lasting for months or even years." But it is the OLC's constitutional analysis that strains credibility. The lawyers assert, among other things, that
• As commander-in-chief, the president is unrestrained in the exercise of his power to use whatever means he deems necessary to prevent attacks against the United States.
• Congress has absolutely no authority to interfere with the president's national security powers.
• The First and Fourth Amendments do not restrict the president's powers domestically when he is acting in the national defense.
• The president can nullify the Geneva Conventions and other treaties in the exercise of his commander-in-chief powers.
Many of the OLC's contentions plainly were wrong. The U.S. Supreme Court has rejected several in cases like Hamdi v. Rumsfield, 542 U.S. 507 (2004), Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfield, 548 U.S. 557 (2006). When Yale Law School Dean Harold Koh read the 2002 interrogation memorandum, he called it "perhaps the most clearly erroneous legal opinion I have ever read"; the DOJ expressly withdrew it in 2004. In October 2008, the OLC repudiated a 2001 opinion supporting the president's unfettered use of the military domestically to combat terrorism. On January 15, 2009, five days before a new president was sworn in, the OLC wrote that numerous positions asserted in nine opinions from 2001 to 2003 no longer reflect its current views.
The harm was already done. In responding to the dangers of a post-9/11 world, Addington and Yoo failed to act as lawyers, who, as one former top State Department lawyer put it, "have to be the voice of reason and sometimes have to put the brakes on, no matter how much the client wants to hear something else." But they did not just fail to stop wrongdoing. Rather, as Jack Goldsmith (who assumed leadership of the OLC in late 2003) recounted, the OLC memoranda were viewed as "golden shields" against criminal prosecution. The legal advice gave the president, CIA officials, military officers and others the license to act with impunity. The lawyers who gave it bear at least moral responsibility for the human rights violations that resulted.
Kathy B. Weinman
Partner, Dwyer & Collora, LLP