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May 13, 2009
Testimony of David Luban
Chairman Whitehouse, ranking member Graham, Chairman Leahy, and members of the subcommittee.
When a lawyer advises a client about what the law requires, there is one basic ethical obligation: to tell it straight, without slanting or skewing. That can be a hard thing to do, if the legal answer isn't the one the client wants. Very few lawyers ever enjoy saying "no" to a client who was hoping for "yes". But the profession's ethical standard is clear: a legal adviser must use independent judgment and give candid, unvarnished advice. In the words of the American Bar Association, "a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client."
That is the governing standard for all lawyers, in public practice or private. But it is doubly important for lawyers in the Office of Legal Counsel. The mission of OLC is to give the President advice to guide him in fulfilling an awesome constitutional obligation: to take care that the laws are faithfully executed. "Faithful" execution means interpreting the law without stretching it and without looking for loopholes. OLC's job is not to rubber-stamp administration policies, and it is not to provide legal cover for illegal actions.
No lawyer's advice should do that. The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct; they require competence; and they demand that lawyers explain enough that the client can make an informed decision, which surely means explaining the law as it is. Lawyers must not misrepresent the law, because lawyers are prohibited from all "conduct involving dishonesty, fraud, deceit or misrepresentation." These are standards that the entire legal profession recognizes.
There is a common misperception that lawyers are always supposed to spin the law in favor of their clients. That is simply not true. It is true that in a courtroom, lawyers are supposed to argue for the interpretation of law that most favors their client. The lawyer on the other side argues the opposite, and the judge who hears the strongest case from both sides can reach a better decision.
But matters are completely different when a lawyer is giving a client advice about what the law means. Now there is nobody arguing the other side, and no judge to sort it out. Typically, the lawyer-client communication is confidential, and thus the lawyer is the client's only channel of advice about what the law requires. Not only is it important for the client to receive unvarnished advice, it is important for society at large that clients know their legal obligations. The ABA explains the value of lawyer-client confidentiality by pointing out its contribution to law compliance: "Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld." The ABA's Model Code of Professional Responsibility explains the "essential difference" between advocates and advisors:
Where the bounds of the law are uncertain, the action of a lawyer may depend upon whether he is serving as advocate or advisor. A lawyer may serve simultaneously as both advocate and adviser, but the two roles are essentially different. ... While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.
However, the requirement of independent judgment in Rule 2.1 does not permit lawyers to shape their opinions to the client's wishes. This is common sense. Otherwise, clients might go to their lawyers to say, "Give me an opinion that says I can do what I want"-and then duck responsibility by saying, "My lawyer told me it was legal." Then we would have a perfect Teflon circle: the lawyer says "I was just doing what my client instructed" and the client says "I was just doing what my lawyer approved." The damage to law and compliance with law would be enormous.
Does that mean a client cannot come to a lawyer with the request, "Give me the best argument you can find that I can do X"? As a general proposition, nothing forbids a lawyer from doing so, but it would be deceptive to package one-sided advice as an authentic legal opinion. Emphatically this is not OLC's mission, which is to tender objective advice about matters of law, binding on the executive branch. Nor do Professor Yoo, Judge Bybee, and Mr. Bradbury claim they are simply giving, in a one-sided way, the best arguments they can find for the permissibility of the tactics. The August 1, 2002 "techniques" memo states, "We wish to emphasize that this is our best reading of the law," while Mr. Bradbury describes his May 10, 2005 "techniques" memo in similar terms: "the legal standards we apply in this memorandum...constitute our authoritative view of the legal standards applicable under [the torture statutes]."
Because of time constraints, my oral statement on May 13 discussed only one example of what I am talking about; in this written testimony I include others, beginning with the case my oral statement focused on.
Twenty-six years ago, President Reagan's Justice Department prosecuted law enforcement officers for waterboarding prisoners to make them confess. The case is called United States v. Lee. Four men were convicted and drew hefty sentences that the Court of Appeals upheld.
The Court of Appeals repeatedly referred to the technique as "torture." This is perhaps the single most relevant case in American law to the legality of waterboarding. Any lawyer can find the Lee case in a few seconds on a computer just by typing the words "water torture" into a database. But the authors of the torture memos never mentioned it. They had no trouble finding cases where courts didn't call harsh interrogation techniques "torture." It's hard to avoid the conclusion that Mr. Yoo, Judge Bybee, and Mr. Bradbury chose not to mention the Lee case because it casts doubt on their conclusion that waterboarding is legal.
In past discussion before this Committee, Attorney General Mukasey responded that Lee is not germane, because it is a civil rights denial case, not a torture case. That response misses the point, however, which was not what legal issue the court was addressing in Lee, but the fact that the judges had no hesitation about labeling waterboarding "torture," a label they used at least nine times. They obviously could not reference the Convention Against Torture (CAT) or the torture statutes, 18 U.S.C. §§ 2340-2340A, which did not yet exist. But there is no reason to suppose that they would have reached a different characterization of waterboarding than they did in Lee. That might be the case if CAT and the torture statutes had transformed the meaning of the ordinary-language word 'torture,' making it more technical, and raising the standard of harshness so that waterboarding might not be torture under the new, technical standard.
That simply did not happen. The statutes' definition of torture as severe mental or physical pain or suffering is neither unusual nor technical. Indeed, a standard pre-CAT dictionary definition of torture describes it as "severe or excruciating pain or suffering (of body or mind)..." --a definition so similar to the language of CAT that it seems entirely possible that CAT's drafters modeled the treaty language on the Oxford English Dictionary definition. Other Lee-era dictionaries use formulations that do not in any way suggest that at the time of Lee 'torture' meant something milder than the statutory standard--Webster's Third (1971) says "intense pain"; Webster's Second (1953) says "severe pain" and "extreme pain. "
I would like to briefly discuss other ways that the torture memos twisted and distorted the law, even though doing so requires getting even further into technicalities that, quite frankly, only a lawyer could love. The first Bybee memo advances a startlingly broad theory of executive power, according to which the President as commander-in-chief can override criminal laws such as the torture statute. This was a theory that Jack Goldsmith, who headed the OLC after Judge Bybee's departure, described as an "extreme conclusion," reached through "cursory and one-sided legal arguments"--a conclusion that "has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law." It comes very close to President Nixon's notorious statement that "when the President does it, that means it is not illegal"--except that Mr. Nixon was speaking off the cuff in a high pressure interview, not a written opinion by the Office of Legal Counsel. The Youngstown case I mentioned previously found that President Truman could not seize steel mills during the Korean War because doing so impinged on Congress's powers. It is a case limiting the commander-in-chief power, and it is known to every law student who has taken constitutional law.
I have said little about the three May 2005 opinions, beyond the point I have already noted that they approve waterboarding without citing or discussing Lee. (Nor do they acknowledge earlier cases where the U.S. has condemned water torture--the Glenn court-martial from the U.S. Philippines campaign in the early twentieth century, and the Sawada case, in which a Japanese general was condemned for forms of cruelty that included water torture. ) The 2005 memos are not as conspicuously one-sided as the August 1, 2002 torture memo which--again quoting Professor Goldsmith--"lacked the tenor of detachment and caution that usually characterizes OLC work, and that is so central to the legitimacy of OLC." Mr. Bradbury's memos are more cautious, and contain repeated reminders that reasonable people could reach the opposite conclusion. But they too contain troubling features.
To take one example, the May 30, 2005 memo states twice that courts might reach the opposite conclusion in their interpretation of whether the CIA techniques "shock the conscience." This is an important warning, and I believe that it is perfectly ethical for a lawyer to offer a non-standard interpretation of the law in an advisory opinion, provided that the lawyer flags--as Mr. Bradbury does--that it may indeed be non-standard. However, in both places he immediately adds that the interpretation is "unlikely to be subject to judicial inquiry." This is uncomfortably close to a lawyer telling the client, "it's likely to be found illegal, but don't worry--you probably won't be caught."
Other features of the memos are likewise troubling. To reach the conclusion that waterboarding does not cause "severe physical suffering," the memos rely on a specious finding from the 2004 memo, namely that to qualify as severe, suffering must be prolonged. There is no such requirement in the torture statute--and indeed, there is strong reason to believe that no such requirement was intended. Congress did stipulate that severe mental suffering must be "prolonged" (18 U.S.C. § 2340(2)). Ordinary canons of statutory construction would lead virtually all competent lawyers to conclude that if Congress omitted the word "prolonged" in connection with physical suffering, but included it in the definition of mental suffering in the same statute, it does not exist in connection with physical suffering. In Mr. Bradbury's memo, the requirement of duration is crucial in finding that waterboarding does not induce severe physical suffering, because it does not last long enough. But, to repeat, the law itself contains no duration requirement for severe physical suffering--and it is wildly implausible that the overwhelming sensation of drowning, which is surely a form of physical suffering, is not severe.
Recent news reports have said that the Justice Department's internal ethics watchdog, the Office of Professional Responsibility, has completed a five-year investigation of the torture memos. OPR has the power to refer lawyers to their state bar disciplinary authorities, and news reports say they will do so.
I have no personal knowledge about what OPR has found. Presumably, investigators were looking either for evidence of incompetence, evidence that the lawyers knew their memos don't accurately reflect the law, or evidence that process was short-circuited.
This morning I have called the torture memos an ethical train wreck. I believe it's impossible that lawyers of such great talent and intelligence could have written these memos in the good faith belief that they accurately state the law. But what I or anyone else believes is irrelevant. Ethics violations must be proved, by clear and convincing evidence, not just asserted. That sets a high bar, and it should be a high bar. Obviously, proving that lawyers were not candid in their advice, when they continue to assert publicly that they believe it is legally correct, is not easy.
In closing, I would like to emphasize to this Committee that when OLC lawyers write opinions, especially secret opinions, the stakes are high. Their advice governs the executive branch, and officials must be told frankly when they are on legal thin ice. They and the American people deserve the highest level of professionalism and independent judgment, and I am sorry to say that they did not get it here.