Bad Vice, Bad Advice: A Call to End Government Lawyers' Abdication of their Ethical Duty as Counselors

AuthorClaire Creighton
PositionJ.D., Georgetown University Law Center (expected May 2022); B.S., University of Virginia (2017)
Pages895-908
Bad Vice, Bad Advice: A Call to End Government
Lawyers’ Abdication of their Ethical Duty as
Counselors
CLAIRE CREIGHTON*
INTRODUCTION
Riddled with error,” “this is insane who wrote this,and a slovenly mistake;
no, these are not the reactions of a law professor to a poor first-year law student’s
exam.
1
They are instead reactions of Senior Republican colleagues at the Justice
Department to the now infamous Torture Memos written by John Yoo, a
Deputy Assistant Attorney General and approved by Jay Bybee, head of the
Office of Legal Counsel (OLC) of the Department of Justice (DOJ). The now
infamous memoranda were a cherrypicked, one-sided, legal approval of the use
of enhanced interrogation techniques,a euphemistic phrase to describe torture
such as waterboarding, prolonged sleep deprivation, and mental torment in the
War on Terror.
2
The memos written in 2002 condoned the use of the CIA’s hei-
nous torture tactics on detainees at Abu Ghraib in Iraq that led to unresponsive-
ness, near drownings, self-harm, and even death.
3
In 2004, after news of human rights violations at the Abu Gharib prison broke,
one of the Torture Memos was subsequently leaked.
4
While both memos were
swiftly withdrawn by the OLC as legally defective,
5
the fallout was still astro-
nomical.
6
An internal investigation within the DOJ’s Office of Professional
* J.D., Georgetown University Law Center (expected May 2022); B.S., University of Virginia (2017).
© 2021, Claire Creighton.
1. U.S. DEPT OF JUSTICE, OFFICE OF PROFL RESPONSIBILITY, INVESTIGATION INTO THE OFFICE OF LEGAL
COUNSELS MEMORANDA CONCERNING ISSUES RELATING TO THE CENTRAL INTELLIGENCE AGENCYS USE OF
ENHANCED INTERROGATION TECHNIQUESO N SUSPECTED TERRORISTS, 9, 124, 160 (2009) [hereinafter OPR REPORT].
2. See Eric Lichtblau & Scott Shane, Report Faults 2 Authors of Bush Terror Memos, N.Y. TIMES (Feb. 19,
2010), https://www.nytimes.com/2010/02/20/us/politics/20justice.html [https://perma.cc/ZDG6-HNLU]; OPR
REPORT, supra note 1, at 160.
3. See Stephen Collinson & Evan Perez, Senate report: CIA misled public on torture, CNN (Dec. 9, 2014),
https://www.cnn.com/2014/12/09/politics/cia-torture-report [https://perma.cc/DJK4-9KWK]; Jeffrey Rosen,
Conscience of a Conservative, N.Y. TIMES MAGAZINE (Sept. 9, 2007), https://www.nytimes.com/2007/09/09/
magazine/09rosen.html [https://perma.cc/XFZ3-KP3V]; Andrew Cohen, The Torture Memos, 10 Years Later,
ATLANTIC (Feb. 6, 2012), https://www.theatlantic.com/national/archive/2012/02/the-torture-memos-10-years-
later/252439 [https://perma.cc/JW2E-NKMC].
4. Rosen, supra note 3.
5. Id.
6. See Collinson & Perez, supra note 3 (quoting Senator Dianne Feinstein who has referred to the CIA’s
actions as a stain on our values and on our history).
895

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