The Devil is in the Detail: The 'Torture Memos' and the Question of Professional Conduct

Posted: 13 Apr 2011 Last revised: 1 May 2011

See all articles by Anthony Valcke

Anthony Valcke

University of Kent, Brussels; Vesalius College; European Citizen Action Service (ECAS)

Date Written: June 25, 2009

Abstract

On 16th April 2009, President Barak H. Obama ordered the release of certain memoranda containing secret legal advice rendered by lawyers working for the government’s Office of Legal Counsel during the Bush administration. This followed an earlier similar release of hitherto undisclosed legal opinions by the US Department of Justice a month before.

These memos purported to provide advice to the Central Intelligence Agency on the proposed use of so-called “enhanced interrogation techniques” for use by law enforcement and military officials in the handling of detainees suspected of engaging in terrorism.

A careful analysis of the advice reveals gaps in the legal reasoning deployed by the OLC lawyers. The memos contained an overly restrictive interpretation of what constitutes torture or cruel, inhuman or degrading treatment and failed to examine the legality of interrogation techniques under a number of key international legal standards. The end result was to provide legal justification for interrogation techniques such as “waterboarding” (simulated drowning), water dousing, cramped confinement, sleep deprivation and forced nudity, which have since been widely condemned.

Whether the gaps in the OLC memos were intentional or inadvertent, these opinions raise serious questions of professional ethics. The DoJ’s Office of Professional Responsibility is reportedly investigating whether the drafters of these memos may have committed misconduct. As government employees working in Washington D.C., OLC attorneys are bound to comply with rules of professional conduct of the District of Columbia. The D.C. rules, amongst other things, place an obligation on its member attorneys to exercise independent professional judgment and provide candid advice to its clients. Similar rules of professional conduct apply to attorneys barred in other jurisdictions across the United States.

It is arguable that the legal advice contained in the OLC memos was not sufficiently candid and therefore could constitute negligent legal advice. As such, the drafters of the memos could be investigated for professional misconduct. Any disciplinary proceedings would need to be initiated before the District of Columbia Court of Appeals. Whilst the DC rules places an obligation on other lawyers to denounce known instances of misconduct, the Department of Justice remains the most obvious candidate for lodging a complaint of misconduct.

Keywords: Ethics, Law, Legal Ethics, Professional Conduct, Torture, Torture Memos

JEL Classification: K19, K33, K42, Z00

Suggested Citation

Valcke, Anthony, The Devil is in the Detail: The 'Torture Memos' and the Question of Professional Conduct (June 25, 2009). Available at SSRN: https://ssrn.com/abstract=1807787

Anthony Valcke (Contact Author)

University of Kent, Brussels ( email )

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Brussels 1040
Belgium

HOME PAGE: http://www.kent.ac.uk/brussels/staff/profiles/external/valcke.html

Vesalius College ( email )

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HOME PAGE: http://www.vesalius.edu/biographies/anthony-valcke-llm/

European Citizen Action Service (ECAS) ( email )

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Brussels, B-1060
Belgium

HOME PAGE: http://www.ecas.org/eu-rights/eu-rights-clinic/introduction/

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