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Ethics

: Legal Ethics Forum

The Situationist Perspective on the Torture Memos

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Cyberspace is already full of excellent commentary about the torture memos, so I've been reluctant to add another two cents.  I was struck, however, by John Yoo's recent live Q&A at the Washington Post's web site, where he said the following:

At the Justice Department in the first months after the 9/11 attacks, we sought to define what torture was, as established by an Act of Congress, to make sure that the CIA did not carry out any interrogation methods that violated the law. If you were to read that work, you will see, in fact, that we indeed looked at the legal reasoning of other countries, specifically Israel and Great Britain. You may have a different result in mind, and maybe you would have drawn the line of what was and was not torture differently, and you may even have done so differently under the circumstances and pressures of those days, but I would like to point out that it should be incumbent on critics to put themselves in that situation and give us their best legal opinion on the meaning of the statute. It is easy to play a Monday morning quarterback and look back with years of hindsight when one has the luxury of not working under the pressures of a recent attack on the country.

Many people have wondered how much of Yoo's legal advice was shaped by the particular environment in which he found himself after the 9/11 attacks.  For example, I previously speculated that contextual forces, such as those that existed at that time, may have affected Yoo's objectivity and the quality of his advice.  It had been my understanding (correct me if I'm wrong) that Yoo had not previously acknowledged that possibility, but the quote above implies that the high pressure context may have affected his analysis, at least to some degree.   

Of course, none of these observations, even if they are accurate, necessarily tell us whether Yoo should be disciplined.  They do illustrate, however, the importance of understanding how situational forces affect lawyer behavior.  In recent years, legal ethics scholarship (like a lot of legal scholarship) has drawn on insights from behavioral psychology, and the torture memo controversy offers a useful backdrop for studying how some of those conceptual insights intersect with the practice of law.

Full post as published by Legal Ethics Forum on March 05, 2010 (boomark / email).

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