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

• Author: Claire Creighton
• Position: J.D., Georgetown University Law Center (expected May 2022); B.S., University of Virginia (2017)
• Pages: 895-908

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swiftly withdrawn by the OLC as legally defective,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. DEP’T OF JUSTICE, OFFICE OF PROF’L RESPONSIBILITY, INVESTIGATION INTO THE OFFICE OF LEGAL

COUNSEL’S MEMORANDA CONCERNING ISSUES RELATING TO THE CENTRAL INTELLIGENCE AGENCY’S USE OF

“ENHANCED INTERROGATION TECHNIQUES” O 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”).

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