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DEFENSIVE STRATEGY
Advice of counsel: Torture is okay
BY HARVEY A. SILVERGLATE

Torture is allowed as part of President Bushís "ultimate authority" as commander in chief, and neither treaty obligations nor existing congressional statutes can stop him (or those acting on his orders) from torturing if he believes it is necessary. Thatís what two high-level legal memoranda prepared by the White House counsel and a special Defense Department working group have concluded.

These legal analyses, reported recently by the Wall Street Journal and the Washington Post, seek to insulate torturers and those who authorize torture from criminal liability. In the words of the Department of Defense report, "in light of the Presidentís complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the Presidentís ultimate authority" in the war on terror.

For the most part, commentators have assumed that Secretary of Defense Donald Rumsfeld and White House staff requested these opinions to obtain good-faith legal guidance on how American civilian and military agencies can pursue more aggressive interrogation techniques without violating the law. While this motive might be morally questionable, it would at least seem to show that the requesters were mindful of their obligation to obey the rule of law.

However, a close reading of these memoranda suggests a far more sinister motive. The Bush team was likely setting up what is known as an "advice of legal counsel" defense. Under this defense, if a person obtains legal advice from an assumed competent and knowledgeable lawyer regarding an area of criminal law that is somewhat complex, that person may defend himself in a criminal prosecution if he follows his lawyerís advice, even if that advice is later found to be in error, by saying that he was only following the advice of counsel. Such a defendant cannot be said to have acted with criminal intent. Under our system, one cannot be convicted of a serious crime if one doesnít intend to violate "a known legal duty."

The tip-off that these memoranda are designed to provide an advice-of-counsel defense rather than to give good-faith legal guidance is that although they were produced by good lawyers, the constitutional reasoning is so plainly wrong that even a first-year law student could find the flaws in it. The DODís working-group opinion is particularly ludicrous in its efforts to prove that the president is above the law and able to ignore duly enacted statutes and treaties merely because neither Congress nor the Supreme Court has told the president that he is bound by them. Two hundred years of legal history tell the president quite the contrary, from the early days of the republic right up through Richard Nixon and Bill Clinton, who learned the hard way. Such history strongly suggests that the memos were produced not for real legal guidance now, but rather for protection in the future, should political changes ever lead to investigations into violations of domestic and international criminal statutes during the administrationís conduct of the war on terror. Laying the groundwork for a future advice-of-counsel defense would seem prudent for this band of outlaws. Only time will tell whether the rule of law will recover from its current troubles and hold them accountable.


Issue Date: June 18 - 24, 2004
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