Georgetown Journal of Legal Ethics
This Essay will use the Torture Memo to illustrate how lawyers might find themselves implicated in war crimes. I will explore the contention that the Torture Memo is not only flawed legal advice but potential evidence of criminal conduct.
In Part I, I will address the flawed and reckless reasoning employed in the Torture Memo. I argue that whether or not Yoo and Bybee wrote the memorandum in good faith, the enterprise in which they were involved—providing legal cover for the abuse of detainees—was morally hazardous. I argue that there are some ends toward which lawyers should not direct their talents or energies, and sanctioning the mistreatment of human beings is one such end. When lawyers facilitate the degradation and torture of detainees, they can justifiably be held accountable.
In Part II, I will demonstrate that lawyers are potentially complicit in war crimes when they "materially contribute" to the commission of crimes like torture. Writing a memorandum can qualify as a "material contribution," and precedents before the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the Nuremberg Tribunals suggest that lawyers can be held liable as accomplices if their legal advice facilitated or encouraged the commission of illegal acts.
In Part III, I will turn to potential venues for criminal prosecution of lawyers like Yoo and Bybee and the sources of law that may be used to prosecute them. American lawyers like Yoo and Bybee can potentially be prosecuted as war criminals under the statute of the International Criminal Court ("ICC") or in the court of any party to the Convention Against Torture ("CAT"). As I will explain, it is irrelevant that the United States is not a party to the ICC because nationality is only one basis for the court's jurisdiction, and the CAT prohibits complicity in torture--whether by a lawyer or any other agent-irrespective of domestic law. I also argue in this Part that Yoo and Bybee could be investigated and charged in the United States, but the United States has been reluctant to examine the role of policy-makers in the abuse and torture of detainees. The Supreme Court's recognition that enemy combatants have rights under Article 3 of the Geneva Conventions in Hamdan v. Rumsfeld, seemed to open the door for such a prosecution, but the passing of the Military Commissions Act of 2006 seems to make such a prosecution not only unlikely but perhaps impossible.
Commenting on the Torture Memo controversy, George Terwilliger, a former Deputy Solicitor General, expressed skepticism that legal opinions have ever hurt anyone. I disagree. Lawyers must always consider the likely real world consequences of their legal advice. While the exact influence of the Torture Memo is unclear, Yoo and Bybee were in effect asked by the White House how far interrogations could go, and their response was essentially "as far as you would like." In crafting the Torture Memo in the manner they did, Yoo and Bybee made the abuse and degrading treatment of detainees appear legally permissible. As the analysis in this Essay suggests, Yoo and Bybee--and perhaps other lawyers who have or will engage in similar activities--can and should be held criminally accountable.
Georgetown University Law Center
Can Lawyers Be War Criminals,
Geo. J. Legal Ethics
Available at: https://scholarship.law.tamu.edu/facscholar/85