The Department of Justice (DOJ) has announced that it will not discipline the lawyers involved with the Torture Memorandum — Jay Bybee (a federal judge) and John Yoo (professor of law at the University of California, Berkeley). The DOJ rejected arguments that the Memorandum embraced “incompetent” arguments, in violations of the ethics rules governing lawyers.
I oppose waterboarding, although our failure to use it means that there will be important information we do not learn. And I also oppose efforts to discipline those with a different view. When I was younger, back when I knew it all, I might have thought that anyone who disagreed with me must be incompetent. That is no longer true.
One major argument repeatedly advanced is that the Memorandum was incompetent in referring to a Medicare statute to define “severe pain.” In determining the meaning of the relevant words in the federal statute that specifically bans “torture,” the Memorandum methodically looked at the legislative history of that statute, each word as defined in a half-dozen dictionaries, the word as used in the cases, and as used in any other federal statute. It is neither incompetent nor misleading (nor unusual) to quote from a statute, explain that Congress enacted that different statute for a different purpose, and note that, oddly enough, the meaning in that other statute is the same meaning that one finds in various dictionaries, in the caselaw, and in the legislative history of the anti-torture statute. If the Memorandum had deleted any reference to the Medicare statute, it would reach exactly the same conclusion. The Memorandum may be wordy, but it is not incompetent.
Moreover, it is hard to say that its analysis of what is torture is “incompetent” when the Third Circuit adopted it in a case where a Haitian alien complained of torture. [Pierre v. Attorney General, 528 F.3d 180, 189 (3d Cir. 2008)] The ten judges in the majority knew exactly what they were doing because the three-member dissent specifically objected to accepting the Bybee-Yoo analysis. [528 F.3d at 193 (dissent)] Last April, lawyers in the Obama Justice Department adopted those same arguments defining torture in a brief urging the deportation of John Demjanjuk. The number of incompetent layers (and judges) that DOJ must report to the discipline authorities is increasing at an exponential rate.
A legal opinion is often called a comfort letter. It tells the client that some action will, or will not, occur, such as, “an investment in a particular partnership will provide the client with a valid federal tax deduction.” The Memorandum offers no comfort to anyone who engages in torture. It uses the language of “might” (30 times) and “may” (58 times). For example, it says that there may be defenses to a prosecution for torture, such as lack of intent. To accidentally bump someone with a burning cigarette is not torture; to do it intentionally is. The Memorandum warned that a jury might not accept such defenses.
The news media frequently quotes language in the Memorandum that defines torture as “equivalent in intensity to the pain accompanying serious physical injury,” like “organ failure” and “death.” Surely torture covers more than that. Indeed, it does. In the very paragraph from which these words are ripped, the Memorandum goes on to explain that any severe harm (whether mental, physical, or psychological) is torture. The Memorandum advises the reader to turn to an appendix that discusses every published federal case concerning torture and explained the many forms it may take, like cigarette burns, hearing other prisoners being beaten, riding a prisoner “like a horse, simultaneously hitting him in the head and body with a knife handle.”
If there were going to be discipline, it could not stop with Bybee and Yoo. Add John Ashcroft to the list, because he was attorney general at the time. Either he supervised (and therefore should have figured out that the Memorandum was “incompetent”), or he did not supervise (and therefore the ethics rules say he failed to supervise adequately). Add any lawyer who worked on the project, for the ethics rules have no “good soldier” defense of “just following orders.” And do not forget the members of Congress who were told of water-boarding at the time and expressed concern that the CIA was not doing enough. Those who are lawyers should be disciplined too, because — as one law professor who testified before the Senate said — the Memorandum was so obviously incompetent that anyone who spent a “few seconds on a computer” would figure that out.
As the number of disbarred lawyers increases, the supply of lawyers decreases, which should allow me to raise my rates. But wait, I’ll be disbarred too because I must be incompetent for not understanding that the Memorandum is incompetent.
– Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman U. School of Law.