"I'm just talking about the law" (1): Guantanamo and the Lawyers.

Author:Zwanenburg, Marten
Position:Critical essay


Guantanamo: The War on Human Rights by David Rose. New York: The New Press, 2004.

"Because the legal advice was we could do what we wanted to them there" (22). This is how a top-level Pentagon official, in David Rose's Guantanamo: The War on Human Rights, explains why detainees held by the United States have been detained at Guantanamo Bay. It is just one illustration of the important role that lawyers have played in the "War on Terror"--a role, along with factors that have or that may have influenced it, that forms the topic of this essay.

The part that a number of American government lawyers have played in devising a legal framework for the United States' response to the attacks of September 11, 2001 has become increasingly clear over the last few years. Over time a number of previously classified memoranda written by these lawyers have become public. Often controversially referred to as the "torture memos," these documents justify policies and actions that many lawyers and commentators consider violations of American Constitutional law and/or international obligations of the United States. (2) One particularly controversial memo was the so-called "Bybee memo," written by the Office of Legal Counsel (OLC) of the Justice Department. It was signed by Assistant Attorney General Jay Bybee, but it has been reported that former OLC Deputy Assistant Attorney General John Yoo drafted important parts of its substance. The Bybee memo created an uproar when it was leaked to the Washington Post in June 2004.

It is outside the ambit of this essay to analyze the memo in depth, which in any case has already been done elsewhere. (O'Connell 2005; Paust 2005; and Rouillard 2005) It is instructive to briefly describe its contents, however. The objective of the memo is to examine the limits on the use of force ("standards of permissible conduct") for interrogations conducted outside the United States found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention) as implemented in American law.

It concludes that the restrictions are very limited--that only acts inflicting and "specifically intended to inflict severe pain or suffering," whether mental or physical, are prohibited (Bybee 2002). On the other hand, circumstances that inflict severe mental pain not intended to have lasting effects, as well as physical pain less than that which accompanies "serious physical injury such as death or organ failure," are allowed under the Torture Convention (Bybee 2002). The memo continues to argue that even if an interrogation method arguably were to violate the prohibition on torture in American law, that law would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign. It adopts a very broad interpretation of the Constitution with regard to the powers of the President to arrive at the conclusion that any effort to apply the law in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants would be unconstitutional.

The final part of the memorandum examines possible defenses to a charge of torture. It concludes that necessity or self-defense could provide justifications that would eliminate any criminal liability (Bybee 2002: 46).

Due mainly to this memo, the media has made John Yoo particularly emblematic of the role played by a number of American government lawyers in the "War on Terror." This role is characterized by a very narrow interpretation of international law, accompanied by a very broad reading of the powers of the President of the United States in general, and during a crisis or war in particular. Certain commentators have not only criticized the interpretation of the law given by these lawyers, but also their approach to tendering legal advice. According to these commentators, the way this was done by the lawyers concerned constitutes a perversion of the role that government lawyers should play. As one commentator wrote in the New York Times: "[o]nce charged with giving unvarnished advice about whether political policies remained within the law, the Bush administration's legal counsels have been turned into the sort of cynical corporate lawyers who figure out how to make something illegal seem kosher--or at least to minimize the danger of being held to account" (Rosenthal 2004).

These same commentators distinguish these lawyers from other government lawyers who reportedly challenged government tactics in the "War on Terror." These other government lawyers include Alberto J. Mora, General Counsel of the United States Navy until early 2006. His attempts, through discussions with other government officials, to change government policies that he described as "unlawful," "dangerous" and "erroneous" were described in the New Yorker magazine (Mayer 2006a).

The conduct of Yoo and a number of others has led to questions about the "proper" roles of government lawyers being raised. This has been done in the public media, but also in leading law journals. (3) These questions are also raised on a number of occasions in Guantanamo: The War on Human Rights, written by British journalist David Rose. As its title suggests, the book is a scathing attack on American tactics in the "War on Terror," in particular in Guantanamo. The book, Rose writes, is an attempt to answer the question of what Guantanamo is and a few related questions, such as what its place is in the "War on Terror" and how effectively it is fulfilling its proclaimed mission. Based principally on a visit to the base itself, interviews with U.S. officials and with four British detainees who were released from Guantanamo, he draws several conclusions, principally that Guantanamo has not provided the enormously valuable intelligence that its protagonists claim it has. He then goes on to place the issue in a broader framework, as a component of a system in which the Bush administration was mounting attacks on Enlightenment values and the U.S. Constitution. It reflects, to Rose, one side in a "culture war" between the secular and constitutional principles of the American republic on the one hand and the "Christian authoritarianism" of Bush on the other hand. Rose suggests that a number of government lawyers have taken the latter side and that this has informed their legal advice.

The book is well written and researched, but the author's arguments and conclusions are so one-sided that Rose will probably not convince anyone who does not already share his views. This is particularly the case for the "meaning" which he reads into Guantanamo as a battlefront in a "culture war."

This essay is not a book review of Guantanamo: The War on Human Rights. However, the references to lawyers in the book did form the inspiration for this essay, which will discuss the role of government lawyers. The study of this subject is certainly not new, but it has taken on a new importance in the "War on Terror" in which established law is subjected to great pressures in deference to the alleged necessities of fighting terrorists. This essay first looks at standards that may be applied to judge the conduct of government lawyers. In particular, it describes two theories in legal doctrine on the way government lawyers should give advice to their principals, referred to as the "agency approach" and the "public interest approach." The essay then investigates factors that may have influenced government lawyers in the specific context of American culture and the "War on Terror." It will then draw some conclusions.


There are surprisingly few professional standards that provide guidance to government lawyers. All civil servants, including military personnel, take an oath of office. This includes solemnly swearing that they will support and defend the Constitution of the United States and will well and faithfully discharge the duties of the office they hold. The wording of this oath is so general that it does not offer much guidance to lawyers involved in giving legal advice on sensitive issues.

Lawyers who work for the federal government are also bound by state ethics rules. Most state ethics rules are, to a large extent, based on the Model Rules of Professional Conduct adopted by the

American Bar Association. However, these rules are very general in scope. It is important to note that the rules make a distinction between the lawyer acting in the role of advocate and in the role of advisor (Clark 2005). Different ethics rules apply to these two distinct functions. In the role of the lawyer as an advocate before a tribunal, he may make any legal argument as long as it is not frivolous. He does not need to give the court his honest opinion of how the law applies in the case. When a lawyer gives legal advice, however, he has a professional obligation of candor toward the client.

The government lawyers writing the torture memos were working in an advisory role. They were not defending their client's interests before a tribunal. As such, one of the rules applicable to them is rule 2.1 which reads: "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation" (ABA 2002).

Under these circumstances, what exactly does rendering candid advice mean? (4) And who decides whether moral factors are relevant to the government's situation in a particular case?

Another relevant rule is 1.2 (e), which provides that "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent" (ABA 2002). This seems to be stating the obvious: a lawyer may not advise the government to break the law.


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