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It is easy to believe that John Yoo wrote his widely discredited “torture memos” because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo’s compliance shouldn’t excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings. We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man’s repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions. Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience, including (1) a plausible legitimate reason for the wrongful conduct (Milgram’s subjects were told that the experimenters were studying the learning process); (2) positive language to describe the negative behavior (Milgram’s subjects were told that the shocks would help the bound person to learn); (3) rules that, on their face, seem benign; (4) the creation of a contractual obligation to help; (5) the assignment of specific roles (Milgram’s subjects were “teachers”); (6) the physical separation of the victim from the person carrying out the orders; (7) the proximity of the person issuing the orders to the person following them; (8) the blurring of responsibility for the wrongful conduct; (9) the incremental nature of the requests (Milgram’s subjects started shocking the “learner” at a benign 15 volts and increased the shocks by small increments); (10) the social prestige of the setting; and (11) the elimination of dissent (Milgram found that the presence of a dissenter dramatically reduced obedience). For a similar list, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil 273-75 (2007). Notably, the conditions that produced obedience in Milgram’s experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos. The White House gave Yoo a plausible legitimate reason for the wrongful conduct � preventing future terrorist attacks (factor No. 1). Administration officials often referred to “torture” as “enhanced interrogation” (nos. 2 and 3). Yoo probably felt some obligation to help the White House, given the OLC’s stated role as adviser to the president and the climate of fear regarding terrorism (No. 4). The lawyering role also insulated Yoo from feeling personally responsible for torture; he was “merely” offering a legal opinion (No. 5). In addition, the detainees were removed from him in time and place, making it easier for him to ignore the consequences of his memos (No. 6). Yoo had to report directly to top officials at the White House, who were insistent on getting the legal opinions that they wanted (No. 7). Moreover, Yoo could have perceived that he was “simply” giving a legal opinion; he wasn’t engaging in torture, nor was he advising as a policy matter that torture should occur (No. 8). And the move toward torture occurred gradually over a period of months, with increasing pressure from top officials to justify “enhanced interrogation” techniques (No. 9). The prestige of the White House (No. 10) would also have contributed to Yoo’s willingness to comply, especially given Yoo’s relative youth at the time. (He was in his 30s.) Finally, the White House was well-known for quashing dissent on issues of this sort, making it even more difficult for someone to express independent judgment (No. 11). Insights into other bad advice Of course, none of this justifies Yoo’s conduct or excuses him in any way. Indeed, Jack Goldsmith, the subsequent head of the OLC, rescinded some of Yoo’s memos and successfully resisted the same pressures that Yoo faced. Nevertheless, by trying to understand why Yoo would have offered fundamentally wrong legal advice, we can gain insights into why other lawyers in more commonplace professional settings might offer similarly bad advice to powerful figures, whether they are White House officials, important law firm partners or corporate executives. Our obedience might take the form of following a client’s request to bury a discoverable “smoking gun” document or offering evidence that we know is false, but the forces at work are ultimately the same. If Yoo was willing to create a legal justification for torture because the White House requested it, we as lawyers � as people � are all at risk of following orders rather than exercising independent professional judgment. Again, our tendency to make these mistakes doesn’t give us license to commit them or exculpate us if we already have done so. But our awareness of our own susceptibility to this tendency can help us develop better strategies for resisting troubling commands in whatever form they might arise. Andrew Perlman is an associate professor of law at Suffolk University Law School.

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