Ethics

I've enjoyed reading David McGowan's posts on the OLC memos, and I'm particularly grateful for his pointer to the Federalist Society debate, which I'm still digesting.  On his main post below, on anxieties about the rule of law, David argues that critics of the OLC lawyers (principally Yoo, Bybee and, Bradbury) have two worries.

First, that the standard conception of legal ethics would be put under intolerable pressure if lawyers were permitted to opine that a grave moral evil like torture were permissible, and claim immunity from moral criticism.  It is convenient for opponents of the standard conception that they can criticize the OLC lawyers for having acted unprofessionally, because this extricates them from a serious moral dilemma that would result if something morally awful were legally permissible.  Because the argument is available that the analysis is legally flawed, defenders of the standard conception are spared the necessity of confronting a real worst-case argument against it.

Second, that the autonomy of the law is threatened by admitting that legal interpretation should be responsive to moral concerns.  As Stanley Fish puts it, the law wishes to have a formal existence; if in fact the law is shaped by "the materials and forces it is obliged to push away," there is a threat to the possibility of appealing to a legal standpoint apart from moral considerations, from which to evaluate something as lawful or unlawful, without resorting to contestable moral or political reasons. 

David then goes on to argue that these two anxieties cancel each other out in a way, because the only reason to worry about the standard conception as an ethic for lawyers is that it seems to block a lawyer's resort to moral considerations when acting in a representative capacity; if moral considerations are relevant to the lawyer's role, however, then there would be no reason to worry about the permeability of law to moral considerations.   (I think I have this right, but it's a subtle argument.)

Maybe I'm just neurotic, but I have two entirely different anxieties around the torture memos.  For what it's worth, here are my concerns related, as David puts it, to the problems of morality and interpretation:

First, I worry that the standard conception is not robust enough to fortify lawyers against apocalyptic predictions of the disastrous consequences of not permitting American officials to torture detainees.  David Addington famously challenged Jack Goldsmith's decision to withdraw the torture memos by telling him he would have blood on his hands after the next terrorist attack.  John Yoo writes in the introduction to War By Other Means:  "[L]aw is not the end of a matter; indeed, it is often the beginning.  Sometimes people look to the law as if it it were a religion or a fully articulated that will make these decisions for us, relieving us of the difficult job of making a choice."  Actually, it isthe role of the law to relieve us of making a choice, with respect to matters on which the law has resolved the underlying issue.  That doesn't mean the law is a religion, and of course one must ask, in ethical terms, whether there is a general obligation to obey the law or an obligation in a particular case.  But Yoo's argument here fits nicely with the critiques of the standard conception that direct lawyers to make choices, on a case-by-case basis, about the morality of assisting their client's actions.  That's the wrong evaluative frame, and my anxiety about the rule of law is that lawyers see themselves as answerable primarily to ordinary morality, not to the law itself.

Second, I worry that lawyers will start to disbelieve in what David calls (quoting Llewellyn) the reckonability of law.  I don't think the memos themselves will have this effect -- in fact, reading and responding to the torture memos appears to have caused many on the political left to rediscover the determinacy of law.  What I do worry about, however, is the casual assumption that the ethical obligations of all lawyers should be understood in terms of "zealous advocacy," even when lawyers are acting in an advisory capacity.  Actually, a bit of a litigator's mentality might have been useful here -- if Bybee and Yoo had presented their argument about the definition of severe pain to a judge, it would have been pointed out that they were misusing the Medicare statute.  But that's just an aside; the real point is that in the counseling context, there is no institutional mechanism, comparable to adversarial briefing and oral argument, to ensure that the meaning of the law is not distorted by identification with the client's ends or values.  I am not arguing that the OLC memos bolster some conception of the rule of law; rather, I'm arguing that if we understand the responsibilities of lawyers correctly, in terms of the rule of law, we will see what is wrong with the OLC memos.