Marty Lederman has an extraordinary post at Balkinization detailing six memos from Judge Advocate Generals in the armed forces that have just been declassified. The memos make it quite clear that the decision to provide a legal opinion that whitewashed “extreme interrogation techniques” encountered considerable resistance from the armed forces legal services, who saw it as overturning longstanding US armed forces policies which committed the US to take the “high road.” The armed services’ opinions were sidelined, in favour of John Yoo’s memo, which seems to have closed the debate and cleared the way for the later abuses which did indeed take place.
There’s a strong case to be made that what happened at Guantanamo and Abu Ghraib, along with other abuses (the outsourcing of torture through “extraordinary rendition” and other legal dodges; the probable use of even more extreme techniques by the CIA) are war crimes. Under current political circumstances, there is no likelihood that they will be prosecuted as such. But one could also argue that administration lawyers who provided dubious legal opinions that were then predictably used to provide a spurious patina of legitimacy to illegal acts, were engaged in unethical activity. There was a kerfuffle a few months ago about lawyers who provided legal opinions that gave cover to dodgy tax-avoidance schemes; giving legal cover to torture seems in principle to be rather more problematic. Here’s my question (and I don’t know the answer to it). Does this kind of activity constitute the kind of ethical malpractice that can and should be sanctioned by relevant professional associations (i.e. bar associations)? My guess is that there’s a grey area here, but I would be interested to hear from those who have direct knowledge of how disciplinary sanctioning works in the law.
Update: A reader reminds me that Scott Horton of Columbia University Law School has argued that the relevant disciplinary authorities should investigate the authors of these memos.
In a June 8, 2004 article (scroll down), Neil A. Lewis and Eric Schmitt of the New York Times reported that,
Scott Horton, the former head of the human rights committee of the Association of the Bar of the City of New York, said Monday that he believed that the March memorandum on avoiding responsibility for torture was what caused a delegation of military lawyers to visit him and complain privately about the administration’s confidential legal arguments. That visit, he said, resulted in the association undertaking a study and issuing of a report criticizing the administration. He added that the lawyers who drafted the torture memo in March could face professional sanctions.
My reader, who wishes to remain anonymous, said that he consulted experts on legal ethics last year about the prospects for disciplinary sanctions. While there is mixed opinion on the scope of the relevant rules, and some doubt over whether the disciplinary authorities would take up a case of this kind in practice, there does seem to be at least a reasonable argument that the rules could be interpreted to sanction this kind or behavior.