EJIL: Talk!

In my first post, I began to address concerns brought to mind by W. Bradley Wendel’s excellent review for Legal Ethics (12:1) of five books on the “torture memos” generated by the U.S. Justice Department’s Office of Legal Counsel (OLC). That post lamented the tendency of the discourse on the memos’ improprieties to focus on criminal law issues while neglecting non-penal international legal norms, which were violated much more systematically (and, I would argue, with much more egregious human consequences).

There is, however, a flip side to the observation that the legal structure and political culture of the United States do not place breaches of international legal obligation altogether beyond the scope of domestic legal authority or policy consideration. In retrospectively judging the conduct of the memos’ authors – the subject of the still-withheld report of the Justice Department’s Office of Professional Responsibility, and of potential criminal investigations (in the U.S. and abroad) – one must apply standards in effect at the time and in the specific institutional setting of the activity, however much one may wish to reform those standards prospectively. And here, the case is likely to be closer than is generally imagined, and dependent on more fine-grained assessments than even most legal scholars have appreciated.

As Wendel has elsewhere acknowledged, much of the adverse reaction to the memos stems from revulsion toward very idea of a legalistic rendering of such a morally-charged subject matter. What so many observers find malodorous about the memos is that they seek at all to specify the threshold of criminal liability – especially, with respect to the penal statute implementing the Torture Convention, the line between torture and cruel, inhuman, and degrading treatment. I have attended fora of legal scholars at which the memos have been condemned as embodying the evils of “positivism.” This charge is understandable, given that even the most rigorous and accurate analysis of this distinction is inevitably a disgusting spectacle. But such a charge can only hearten the memos’ authors and their defenders, since it places them comfortably on the traditionalist side of a perennial debate, and deflects attention from the memos’ distortions of positive law. Read the rest of this entry…

Editor’s Note: See herefor a post welcoming Professor Roth

While we continue to await the long-withheld report of the U.S. Justice Department’s Office of Professsional Responsibility (OPR) on the conduct embodied in the notorious Office of Legal Counsel (OLC) “torture memoranda,” W. Bradley Wendel sorts out some of the issues in the current issue (12:1) of Legal Ethics. In “The Torture Memos and the Demands of Legality” (earlier version available on SSRN), Wendel reviews five books on the subject, including one authored by protagonist John Yoo. The result is a balanced, but ultimately pointed, account that avoids the oversimplifications that have frequently marked both criticisms and defenses of the memos’ authors.

Though reciting the usual criticisms of some of the memos’ more extravagant claims, Wendel renders a distinctive analysis of the government lawyer’s duties. Wendel concedes “that there are many different virtues of government, of which legality is only one.” He moreover allows that Attorney General Robert Jackson’s 1940 rationalizations of the Destroyers for Bases Agreement were morally necessary even though legally dubious. At least, though, “Jackson’s opinions were cautious and hedged, acknowledged limits to the power asserted by the President, and were no broader than necessary for the task at hand.” John Yoo’s position, by contrast, “really does boil down to a failure to differentiate between policy advising and legal advising. … The rule of law has no independent normative significance for Yoo.”

There are several pertinent nuances here that are worthy of further exploration. I will address one set of these now, and deal with others in a subsequent post.

Among both critics and defenders of the memos, there has been a remarkable inattention to the memos’ treatment of breaches of international human rights and humanitarian law obligations as such, as opposed to international crimes specified by treaty and reflected in domestic implementing legislation. Read the rest of this entry…