Learning From the Torture Memos

By: Martha F. Davis,

Photo credit:takomabibelot flickr stream

Around the world, human rights lawyers and activists know about the “Torture Memos” – a series of memos prepared from 2001 to 2007 by lawyers for the US Office of Legal Counsel advising the US military and CIA that they were not bound by the plain meaning of the Geneva Conventions.  When I spoke about legal ethics and the torture memos at the Norwegian Centre for Human Rights in Oslo recently, the conversation turned to the importance of creating clear ethical frameworks as a means to avoiding ethical breaches in times of emergency.

Asbjorn Rachlew, a Norwegian psychologist and criminologist based at the Centre, described a time when professional psychologists were asked to strategize about getting accused perpetrators to waive their right to remain silent.  Like the 9/11 effect in the US leading to acceptance of torture and curbing of civil liberties, the Breivik shootings in Norway on July 22, 2011, created a feeling that some sort of psychological manipulation of accused perpetrators might be acceptable.  It took the invocation of human rights standards, a fixed external framework, to remind the psychologists that accused criminals should not be manipulated into giving up their rights.

Knut Aspland, an anthropologist at the Norwegian Centre, noted that concerns about use of anthropological data to support torture caused the American Anthropological Association to take a stance condemning “the use of anthropological knowledge as an element of physical and psychological torture,” building on the baseline ethical obligation of anthropologists to “do no harm.”  Again, an ethical framework adopted before an emergent situation developed worked to ensure that professionals understood their obligations to avoid human rights violations.

US lawyers are subject to extensive ethical codes that are enforced through state bar structures.  And the state bars and American Bar Association have often responded to ethics challenges by reforming these frameworks, to ensure that they set a baseline for the future and send a message to the public about the profession’s priorities.  Lawyer’s involvement in Watergate spurred reforms in legal training, with mandatory ethics classes and a separate ethics exam as part of law licensing.  After the financial scandals of the 1990s, the American Bar Association’s (ABA) Model ethics rules were amended to require lawyers, under some circumstances, to report out their client’s wrongdoings to enforcement authorities.

ABA leaders roundly condemned the Torture Memos as a failure to meet professional obligations.  But no reforms to the profession’s ethics frameworks ensued.  The organized bar has treated the Torture Memos as an instance of lawyers who fell short, not as a challenge to the ethics framework itself.  An outside observer, noting that Jay Bybee is now a federal judge with life tenure and that John Yoo was recently appointed to a prestigious endowed professorship, would have good reason to question whether such lapses are even deemed troubling by the profession.

However, there are lessons that the American Bar might learn from the Torture Memos saga that could be reflected in the Bar’s extensive ethics frameworks, baselines that could be drawn on in times of emergency and pressure.  In particular, the ABA Model Rules of Professional Conduct nowhere mention protection of human rights as a professional ideal.  In a legal system where the status of human rights is sometimes unclear, despite the Constitution’s Supremacy Clause, this omission matters.

As the Norwegian Centre discussants noted during our meeting, the Code of Conduct for European Lawyers explicitly notes the significant role of lawyers in “safeguarding human rights in the face of the power of the state.”  And in Norway and other European countries, lawyers learn that international human rights law is part of their law and therefore incorporated into their ethics codes.  The representative of the Norwegian bar association attending our discussion argued that these references do have an impact on lawyers’ ethical choices.  In the US, however, despite strong arguments to the contrary, human rights law has not gained the same level of integration into domestic law.  Explicit references to human rights are needed in the US, even if they are not necessary in other legal ethics codes.

Interestingly, the ABA is taking tentative steps in this direction, but from a different angle.  In June 2015, with co-sponsorship from the Norwegian government, the ABA Center for Human Rights was co-convener of a meeting in Geneva that examined the role of human rights in the rules of professional conduct through the lens of business and human rights.  While US legal ethics rules currently do not mention human rights in the context of business advice, the ABA Center is charting a path toward raising the issue in this arena.

The Torture Memos, however, have not gotten the same ethical traction.  As with the reforms that followed Watergate and Enron, amending the bar’s ethics rules to explicitly acknowledge lawyers’ important role in safeguarding and protecting human rights would be a step toward an ethical framework that will better serve the profession when the next emergency comes around.

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