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Are the lawyers who advised the military that prisoners captured in Afghanistan were not protected by the laws of war morally responsible for the subsequent abuse? When this question is asked about conventional legal work, most lawyers answer no — a lawyer’s job is to tell clients their legal options, with the client alone responsible for its choices. Whatever the validity of this view for ordinary work, however, it is wrong when the advice is from government lawyers, concerns the treatment of prisoners, is selective, and advocates a view likely to lead to violation of fundamental human rights guarantees. In a Jan. 9, 2002, memorandum to William Haynes II, general counsel of the U.S. Department of Defense, deputy assistant attorneys general John Yoo, a University of California law professor then on leave, and Robert Delahunty argued that neither the Third nor Fourth Geneva Conventions protected Al Qaeda and Taliban detainees captured in Afghanistan. Geneva III protects POWs from “physical or mental torture [or] any other form of coercion … to secure … information of any kind whatever.” Geneva IV protects civilians “against all acts of violence or threats thereof” and protects women against “rape … or any form of indecent assault.” Also unavailable, the memo concludes, was “common Article 3″ to the Conventions, which protects detainees even if the Conventions do not, and which forbids “violence to life and person … cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” The federal war crimes statute was irrelevant as well, the lawyers argued, because it defines “war crimes” to be a violation of the Geneva Conventions and Article 3. Nor did the “customary international laws of war” bind the president because it was not federal law. White House counsel Alberto Gonzales relied on this advice in his recommendations to the president, who adopted them. The Yoo-Delahunty memo is at best incomplete. Although the first sentence of the 42-page memo says the authors were responding to a request for “our Office’s views concerning the effect of international treaties and federal law on the treatment of” detainees from Afghanistan, it ignores duties imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States ratified with reservations in 1994) and the federal torture statute, which creates criminal liability for U.S. nationals who commit torture abroad under color of law. Explicitly and by omission, then, the lawyers told the government it could treat detainees from Afghanistan as though they existed outside the rule of law. The government could offer legal protections voluntarily, but it need not, and the memo “expresses no view as to whether the President should” do so. Although the lawyers advised only on the treatment of Al Qaeda members and Taliban militia, some degree of misidentification was of course inevitable. We are slowly learning the consequences of the advice. “We were pretty much told that they [Afghan prisoners] were nobodies, that they were just enemy combatants,” one military police officer told The New York Times. “We called them hajis, and that psychology was really important.” (Haji is a pejorative term for an Iraqi.) Human Rights Watch has reported arrests of Afghans and other nationals “with no apparent connection to ongoing hostilities” and has “documented numerous cases of mistreatment of detainees … including extreme sleep deprivation, exposure to freezing temperatures … severe beatings [and] being stripped … and photographed while naked.” Military doctors have called the death of two Bagram air base detainees homicides. Officers responsible for prisoner interrogation in Afghanistan and at Guant�namo Bay, Cuba, were later assigned to Abu Ghraib prison in Iraq. Eerily, descriptions of some of the Afghanistan abuses mirror what appeared in pictures from Iraq. Legal ethics questions are often confused with questions of moral responsibility. The two are distant cousins, but here they converge. The ethical issue is simple. Failing to give a client an accurate, complete picture of the law is incompetence at best. As an adviser, a lawyer is not an advocate. Of course, a lawyer may urge particular conduct, but his preference must not skew the presentation of options. Human rights lawyers and others claim that the Yoo-Delahunty memo fails the test of accuracy and completeness. “It is not only wrong, it lays the groundwork for the commission of war crimes. It fails to recognize contrary U.S. military doctrine on the points it makes or to disclose credible sources that take different positions,” says Scott Horton, president of the International League for Human Rights, and an adjunct teacher at Columbia Law School. Kenneth Roth, executive director of Human Rights Watch, faults the memo for failing to address the Convention against Torture. “When they say certain people are outside the Geneva Conventions and don’t bother to mention parallel provisions of the Torture Convention, they invite wholesale abuse,” he says. Colin Powell, secretary of State, wrote in a Jan. 26, 2002, memorandum to Gonzales that denying applicability of the Geneva Conventions in Afghanistan “will reverse over a century of U.S. policy and practice … and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” In an e-mail message, Yoo declined to respond to this criticism, citing “an ethical obligation to my former client not to discuss the nature of the legal advice given.” Delahunty did not reply to an e-mail. A lawyer’s moral responsibility goes beyond ethical duties. Corporate wrongdoing, for example, has often led to questions about the responsibility of lawyers whose aggressive advice facilitated the misconduct. “Where were the lawyers?” the public, and even judges, have asked in the wake of these periodic scandals, including today. The answer, too often, is that the lawyers were enablers — giving advice that allowed the behavior that led to the frauds, the bankruptcies, and the massive financial harm. Critics argue that a gladiator role for lawyers may be tolerable in litigation, where it is balanced by an opposing gladiator and supervised by a judge, and where court records are presumptively public. But office advice is different. It is given in private and beyond adversarial challenge or judicial review, except in the event of litigation after the harm is done. Critics reject the idea that lawyers can give any advice a client wants to hear if they can manage to support it with nonfrivolous arguments. But many in the bar disagree. They say that respect for the autonomy of the client requires lawyers to identify even highly aggressive legal theories that will permit clients to pursue their goals, so long as the client knows the risks. That debate will continue, but there should be no debate about the Yoo-Delahunty memo. For several reasons, its authors must accept moral responsibility for the abuse to which acceptance of their position has led. First, even though the client asked about “international treaties and federal laws” governing the treatment of the prisoners, the memo did not analyze the Convention against Torture and the federal torture statute. Second, as government lawyers, the authors had a heightened responsibility to the public interest and to be aware and warn of the harm to which their advice (exemption from the laws of war) might lead. Third, after arguing for these exemptions, the memo describes no legal restraint on the treatment of the prisoners. So far as a client reading the memo could know, prisoners taken in Afghanistan existed in a lawless world unless the president chose otherwise. Fourth, in its omissions and tone, the memo is a single-minded piece of advocacy, not a balanced analysis of the law. The advocacy includes Pollyannaish assurances that the advice poses no threat that captured U.S. soldiers might be subject to a reciprocal lawless fate. Although it might appear “counterintuitive,” the authors write, the “President may still use his constitutional war-making authority to subject members of al Qaeda or the Taliban militia to the laws of war.” These are failures of commission and omission. Perhaps, however, someone high in government explained that complete and balanced advice was not the client’s wish, that the client instead wanted arguments to support decisions already made. If this is what happened, then the lawyers might claim that they simply did their client’s bidding and, so long as their advice had some merit, they cannot be blamed for the consequences. But no. If the memo was meant to legitimate the client’s predetermined end, the lawyers are still to blame because they would have chosen to give the client the advice it wanted when the dangers of doing so — of consigning prisoners to a lawless state — were obvious. The recent death of Archibald Cox reminds us that lawyers are free to say no, just as Cox said no when Richard Nixon wanted him to curtail the Watergate investigation. But the lawyers here said yes. With that choice comes responsibility for the consequences. Stephen Gillers is professor of legal ethics at New York University School of Law. E-mail: [email protected].

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