In response to:

The Torture Memos: The Case Against the Lawyers from the October 8, 2009 issue

To the Editors:

Once upon a time, lawyers recognized two categories of legal services—pre-event counseling and post-event defense. After a client acted, the duty of a lawyer was to marshal all nonfrivolous arguments that might protect the client. Before a client acted, the lawyer’s job was to provide the client with the lawyer’s best understanding of what the law required. David Cole’s essay [“The Torture Memos: The Case Against the Lawyers,” NYR, October 8] demonstrates the collapse of that distinction inside the Bush Justice Department. Faced with the duty to counsel the President and the CIA about what the law required in connection with the future interrogation of high-ranking al-Qaeda detainees, the lawyers behaved as if the torture had already taken place. Instead of counseling, they simply marshaled arguments that might save future torturers from a criminal conviction. Counterarguments were ignored.

There would have been nothing ethically wrong with the legal memos if they had been presented in support of a motion to dismiss an indictment. As exercises in pre-event counseling, however, the memos border on fraud. They seem more intent on creating legal cover than in analyzing governing law. Sadly, the erosion of the lawyer’s counseling role is not confined to the Bush Justice Department. In today’s legal climate, too many lawyers tell clients exactly what the clients want to hear. Lawyers fear that if they do not produce justifying legal opinions on demand, they’ll lose the client. Instead, like the Justice Department lawyers in Cole’s essay, they lose their souls.

It’s time to revitalize the distinction between a lawyer’s duty to defend a client who has already acted and a lawyer’s duty to counsel clients who have not yet broken the law. The place to begin is not in a criminal court. It is within the legal profession itself, in the form of an ethical inquiry into whether the distinction was violated by the authors of the torture memos, and what to do about it if such a violation took place.

Burt Neuborne
Inez Milholland Professor of Civil Liberties
Legal Director Brennan Center for Justice
New York University
New York City

David Cole replies:

Professor Neuborne’s distinction is vital, especially for government lawyers who are policing the state’s use of its coercive authority. Lawyers in the Office of Legal Counsel had the opportunity to halt brutal, illegal conduct before it occurred. Had they provided objective, candid advice, they would have been obliged to inform the CIA that its tactics violated the prohibitions on cruel, inhuman, and degrading treatment and torture. Their memos read instead like the work of a criminal defense lawyer—and a desperate criminal defense lawyer at that.

The Justice Department’s Office of Professional Responsibility has reportedly undertaken an ethics inquiry along the lines that Professor Neuborne recommends. According to leaked accounts of a draft report, it may recommend that the lawyers involved be referred to their state bars for possible discipline for ethical infractions. That could set the stage for an important form of accountability.

But ethics experts suggest that absent more evidence than is now available, sanctions may be unlikely. Lawyers tend to get disbarred for acting in bad faith, which is extremely difficult to prove. Moreover, even if some of the lawyers were disbarred, there is something incongruous about a professionalized system of torture overseen and authorized by the highest levels of the Cabinet resulting only in the disbarment of a few lawyers.

Full accountability requires a more comprehensive assessment, which can only really be provided by an independent commission. Once a commission discloses the facts and renders its judgment, we will be in a better position to assess what forms of individual accountability are most appropriate.

This Issue

November 19, 2009