Don't Prosecute the Lawyers

PHUTATORIUS
Milan Markovic writes in Slate that a case can be made to prosecute the Bush Administration lawyers who served up the facile and intellectually bankrupt legal opinion approving the use of torture in terror interrogations. And what a lousy case it is, too. In fact, I'm not sure it would even pass the "John Yoo standard."

Markovic cites a 1919 Second Circuit case in support of the notion that an attorney can be prosecuted for advising his client to commit a crime. He also argues that soldiers have to deal with difficult legal gray areas all the time, but they enjoy a war crimes immunity for following orders — so maybe the best bet is to go after the lawyers who rationalized the orders (because apparently it's not enough to take on the superiors who issued them). And finally, he argues that the concerns attorneys have expressed about prosecuting for advice are simply the expected, instinctive responses of professionals protecting their own.

This last bit is a bummer, because I'm an attorney, and Markovic's preemptive strike has disqualified me from explaining why his article is idiotic. But what the hey, right? It's my blog, and I can blather if I want to. And I think maybe I can purchase back some of my credibility by stating that, as a personal matter, the Yoo memo was a lousy piece of work, and that the policy it promoted was godawful and indefensible. But don't prosecute the lawyers. Just don't do it. Here's why:

First, the law isn't always clear, and clients seek out attorneys to give them answers that allow them to go forth and do their work, despite the fact that very often the amount of legal uncertainty can be paralyzing. I can't tell you how often, in my three years working in-house, I've been consulted on a question of considerable legal ambiguity and asked to opine on whether my clients would be running afoul of the law, to the tune of considerable civil and even criminal liability. Lawyers have to be in a position to make judgment calls.

Second, a written legal opinion is First Amendment-protected speech. Sure, there are exceptions (most notably, when the crime is accomplished by speech, as in a fraud case), but we generally don't punish speech in this country. We don't punish a blogger who sits down at his desk and writes that we should torture people. Should we likewise punish an attorney who sits in abstraction and writes his opinions on whether a policy condoning torture is legally defensible? Incitement to violence or riot isn't constitutionally protected, but this isn't a case of the lawyer standing by with the electrodes, chanting DO IT DO IT DO IT into the ear of the covert intelligence operative. "Aiding and abetting" is Markovic's theory. He only has to go as far back as 1919 to find a case that supports it. That's usually a bad sign, especially when the First Amendment is in play. There wasn't a heck of a lot of protection given to freedom of speech back then. That came later.

Third, prosecuting attorneys for their advice implicates attorney-client privilege. Love it or hate it, Mr. Markovic, the ability of clients to consult their attorneys in confidence is a bedrock principle of Anglo-American law. The privilege itself is not in issue in this instance, because the Yoo memorandum was leaked to the public. But the notion that attorneys may have to answer to criminal prosecutors for giving bad advice begs the question: would law enforcement authorities have the power to compel them to surrender their privileged communications, toward the end of investigating the attorney? Even if not, and proponents of criminal counsel liability were therefore in a position to argue that in most cases an assertion of privilege would cut off the investigation, there's still the fact that it's not the privilege so much that is sacrosanct — it's the relationship between attorney and client, and the principle, which is fundamental to our law, that attorneys must not be impaired in their ability to give legal advice.

Fourth, Markovic makes the point that "lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues," and writing in this way would preclude liability. Yes, this is something that lawyers can — and should — do, if they want to be good at their jobs. But it's one thing to remark on the difference between good and bad lawyering — quite another to posit that this distinction ought to serve as the dividing line between legal and criminal conduct. Would it have been enough for Yoo to have written a disclaimer, a la "Authorities might come down on different sides of the question, but on balance I believe it's not illegal to torture detainees?" Should a recitation of those prefatory twelve words really make the difference between hard time in Leavenworth and a cushy post-government work gig with a Washington consultancy? Talk about your First Amendment concerns: Counsel, you're going to have do more "on one hand . . . on the other" in this memo, or you're going to be INDICTED.

Fifth, it seems at least reasonable to take account of the context in which this memorandum was written, and the power relationships that surely drove its content. The respect and independence accorded to attorneys varies from one institution to the next. I would suspect that the respect and independence Bush Administration attorneys had was negligible, and that Yoo's assignment wasn't so much to give an honest, forthright appraisal of the policy but instead to write up the best possible legal justification for it. I can't say what Yoo would have written if left to his own devices, but I don't doubt he was under considerable pressure to sign off on the policy. It's my impression that Bush's people didn't think much of lawyers. It's a bad state of things when lawyers don't feel free to speak the truth about bad policy. You don't fix that by prosecuting the lawyer; you fix it by creating conditions where lawyers feel independent and empowered to do their job and do it well.

Look, Yoo's memo was one-sided and ridiculous. It was insulting. An astonishingly poor effort. (I'm running out of pejorative adjectives, and I'm tempted to use facile again simply because I like it so much.) But let's just call it what it was — lousy legal advice — and leave the criminal charges for the folks who did the waterboarding. If Rummy does time, in part because he relied on John Yoo's memo, there's always a legal malpractice action to help set things right.

Let's not tear down core values of our legal system in our zeal to see the Bush Administration and its brutal, excessive policies brought to heel. Today it's John Yoo. Tomorrow it will be the public defender or divorce lawyer down the road. As we say in the business, "bad facts make bad law." Going out of our way to punish the attorneys here, no matter how attractive a prospect that seems to folks who have The Bloodlust (and now The Upper Hand), would set an awful precedent.