Cornell Law Review Volume 91 Issue 1

Legal Ethics and the Separation of Law and Morals

Spectacular scandals involving lawyers are certainly nothing new. Wrongdoing by lawyers brought about or exacerbated the Watergate crisis, the savings and loan collapse, the corporate accounting fiasco that brought the 1990s tech stock boom to a crashing halt, and innumerable less prominent harms. But for sheer audacity and shock value, it is hard to top the attempt by elite United States government lawyers to evade domestic and international legal prohibitions on torture. The invasion of Afghanistan soon after the September 11th attacks resulted in the capture of numerous detainees with possible al-Qaeda affiliation, who might have possessed information on the organization’s structure, personnel, or even plans for future terrorist attacks. The Bush administration was therefore faced with an urgent question regarding the limits to impose on the interrogation techniques used by military, FBI, CIA, and other government agents and civilian contractors. Officials in the Department of Defense (DOD) and advisers to the President naturally turned to lawyers to interpret and apply the domestic and international legal norms governing the treatment of prisoners.

The resulting memos, prepared by the Justice Department’s Office of Legal Counsel (OLC), were leaked to the press and quickly dubbed the “torture memos.” The memos consider a wide range of legal issues, from whether the Geneva Convention protections afforded to prisoners of war extend to suspected Taliban or al-Qaeda detainees to whether the President’s power as Commander-in-Chief of the armed forces could be limited by a congressional act criminalizing mistreatment of prisoners. One of the most notorious memos concluded that certain interrogation methods might be cruel, inhuman, or degrading, yet fall outside the definition of prohibited acts of torture. The memo further concluded that even if an act were deemed torture, it might nonetheless be justified by self-defense or necessity. And even if an interrogation technique would otherwise be deemed wrongful, the President as Commander-in-Chief had the unilateral authority to exempt government actors from domestic and international legal restrictions on torture.


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