In Shakespeare’s Henry VI, part II, we find Dick the butcher, one of the rebel followers of Jack Cade, uttering these lines:
“The first thing we do, let's kill all the lawyers.” (IV.ii.83-84)
Especially after listening to Congressional hearings featuring such legal eagles of the Bush Administration as John Yoo, David Addington, Alberto Gonzalez, Jim Haynes, and most recently Douglas Feith, the lines seem uncannily appropriate to our time. Each lawyer has taken the stand in his turn and, like that other legal eagle, former President Bill Clinton, chosen denial and obfuscation and parsing of words as the means to escape all culpability. In Clinton’s case, though, the offense involved fellatio in the Oval Office—a rather crude offense, but not one that endangered the Republic. In the case of Yoo, Addington, Gonzalez, Haynes and Feith, by contrast, the offenses amounted to supplying the legal justification for war crimes, most notably the torture that now almost everyone agrees took place at Guantanamo and Abu Ghraib, and probably numerous other “black sites” around the world. Such torture subverts not only several treaties to which the United States is a signatory—the Geneva Conventions, the Torture Convention of 1984—but also the U.S. Constitution’s ban on cruel and unusual punishment, and the policies for interrogation laid out in the Army Field Manual.
All these lawyers, of course, argue either that they were just doing the job their client, the President of the United States or, in some cases Secretary of Defense Rumsfeld asked them to do; or that they were endeavoring to “protect the security of the nation.” In order to do this, they argue, they had to find a way to extract vital information from “the bad guys” captured in Afghanistan and elsewhere. Thus they argued in memo after memo, and in meeting after meeting, that since this was not a regular war, the rules governing prisoners of war (POWs) did not apply; or that even if they did apply, these particular “bad guys” were not regular, uniform-wearing troops but were “enemy combatants” (i.e. terrorists) and undeserving of the protections offered by the Geneva Conventions. Yoo and his boss Jay Bybee—another legal eagle now rewarded with a lifetime position as a federal judge—took a slightly different tack. They argued that the Geneva rules governing torture were outdated, having defined torture much too broadly. They then “tortured” torture to refer to only that kind of treatment which led to injury equivalent to “organ failure or death” or long-term psychological damage.
What resulted from all these coordinated attempts to justify “taking the gloves off” was torture. Prisoners were hooded for long periods, shackled to the floor like dogs, kept standing for long hours until their ankles swelled to excruciating size, sexually humiliated in a host of ways, frightened with dogs, religiously tormented, and waterboarded. All these methods (18 of them were outlined in Haynes’ December 2, 2002 memo to his boss, SecDef Donald Rumsfeld), both alone and in combination, were meant to reduce a prisoner to total hopelessness, misery, disorientation, de-personalization, and psychosis, the aim being to force him to reveal what he knew about future terrorist plans or the whereabouts of superiors.
The astonishing thing about all this—especially as it is laid out in numerous books and articles like Philppe Sands’ recent Torture Team—is that where usually we expect the military to be pushing for tougher measures in war and civilians in the Justice Department to be reigning them in with legal objections (as happened in World War II regarding internment of civilians), here the opposite occurred. In 2002 it was civilian appointees in the Pentagon, the Department of Justice and the White House who argued ferociously for extreme interrogation methods, and Pentagon lawyers, usually in the Judge Advocate General’s office, who objected to the violations of U. S. laws and military traditions. In short, instead of trying to reign in the hawks in the military, the Bush Administration let loose its own Chicken hawks. It was these civilian policy makers who badgered and bullied and, most often, simply cut the military lawyers out of the decisional loop entirely. And indeed, what Philppe Sands, himself an English barrister, concludes is that in the Bush Administration, policy ruled. The policy was set by civilians, by Bush himself, by his Machiavellian Vice President Cheney, and by all the sycophants, mostly lawyers, who followed and sought to please their clients by offering advice they wanted to hear. In Sands’ words:
“The legal advice was fitted around the policy” (Sands, p. 226)
If the policy was war in Iraq, the lawyers found ways to justify it. If the policy was torture, the lawyers found ways to disqualify prisoners from protections against it, or found ways to define torture so narrowly that almost anything was permissible. And overall, they argued fiercely that even if it were torture, it was necessary to save the people from terrorism. This was the tack taken by that distinguished legal eagle, not a part of the administration but one of the reigning nabobs at Harvard’s Law School, Alan Dershowitz. He it was who invented the last-ditch rationale, the “ticking time-bomb” scenario. Its import was simple, or simple-minded: if we capture a terrorist whom we suspect has information about a bomb, a nuclear weapon about to explode in a crowded city, what could possibly limit our attempts to get that information in time? Shouldn’t our policy be that any and all methods are warranted in such a dire emergency?
Without questioning this ridiculous scenario—for how often could it be, aside from on an imaginary thriller like “24” (the favorite program of most of the interrogators at Guantanamo, as well as many of the lawyers), that a single captive would have such information, with his captors knowing he had it?—the Administration based policy on it. And administration lawyers gave the requisite advice: it is legitimate to do virtually anything to prisoners to make them talk. In short, the legal advice was fitted around the policy—just as, earlier, as we learned from one of Britain’s diplomats, the intelligence required to justify invading Iraq was fitted around that policy as well.
What Sands points out in Torture Team, however, is that lawyers have a legal obligation not simply to win for their clients, not simply to provide them with legal rationales for the unlawful behavior they wish to engage in (this is the job rather, of mafia lawyers), but the obligation to warn them of the legal consequences of such actions. Lawyers have a primary responsibility to make sure their clients do NOT resort to measures that violate the law. Lawyers are officers of the court. And what the government lawyers in the Bush Administration failed to do, it now seems clear, was sound the alarm about the legal peril facing their clients for the illegalities they wanted to employ.
Instead, they strove mightily to frame arguments and find justifications for those illegalities, as well as expedients to indemnify both themselves and their clients from the penalties such acts incurred. They worked mightily to avoid their culpability for the war crimes that resulted from their arguments. And for the most part, they succeeded.
On the other hand, perhaps they did not succeed as thoroughly as they once hoped. The 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, to which the United States is a signatory, makes very clear that not only are public officials prohibited from “intentionally inflicting” physical or mental pain upon a person (including so-called enemy combatants), but there are no circumstances, including a war against terrorism, that justify such treatment. Not only are all such acts criminal offenses, but more important, “any act by any person which constitutes complicity or participation in torture” is also a criminal offense. In other words, the lawyers whose arguments authorized such acts are also culpable—as the Nuremberg Trials demonstrated.
This is not just an academic argument. In June 2006, in the Hamdan vs. Rumsfeld case, the Supreme Court ruled that Common Article 3 of the Geneva Convention did, in fact, apply to all Guantanamo detainees. Taliban or al-Quaeda, state combatants or enemy combatants, all had these rights. Justice Anthony Kennedy went even further. He wrote that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel” (quoted in Sands, p. 174).
Of course, this “ominous” decision put the Bushies, including the lawyers, in a bit of a panic. For one thing, the Torture Convention of 1984 contains the requirement that all parties to this Convention, i.e. all nations who signed it, are “required to investigate any person who is alleged to have committed torture.” This act also “criminalizes any act that constitutes complicity” in torture (Sands, p. 177). So what did President Bush and his lawyers do? Why they proposed, and passed the Military Commissions Act, signed into law in November of 2006. This act “created a new defense to alleged breaches of Common Article 3…where the misconduct concerned the ‘detention and interrogation of aliens’ between September 11, 2001 and December 30, 2005” (Sands p. 208). Thus it gave the interrogators, and the lawyers, and any Bush Administration officials retroactive immunity from prosecution for their crimes. Rather a nice ploy, it seems. Commit crimes that violate the law both domestic and international; then create a new law absolving oneself of guilt for the crime. We’ve just seen a re-enactment of this in the bill that gave telecommunications companies immunity from their crimes in spying on the American people.
But the rejoicing in the White House may have come too soon. For as two jurists pointed out to Philippe Sands when he questioned them about the immunity legislation, this was a “very stupid” thing to do. Such legislation, allowing a crime to be covered up, “was almost an admission that a crime had occurred.” As one of the jurists pointed out, it had all the earmarks of a “pactum scaelaris,” or “evil pact,” bringing into play that part of the Criminal Code which “showed that contributing to the avoidance of an investigation of a crime could itself give rise to complicity” (Sands, p. 208).
Sands sums up the case he makes throughout the book as follows:
“The lawyers advising the Administration played a decisive role in subverting the system of international rules that should have protected all detainees from cruel and degrading treatment, a system that the United States had done so much to put in place. This was no mere accident or oversight. Nor was it a case of responding to a legitimate request that came up from the ground-level interrogators at Guantanamo, as the Bush Administration would have us believe. September 11 gave rise to a conscious decision to set aside international rules constraining interrogations.”
In short, it was the lawyers who enabled torture by subverting the constraints against it. Absent their legal arguments rationalizing the banned techniques, circumventing the international constraints against them, and justifying their use in the alleged crisis, the torture could not have happened. Which brings us back to Shakespeare’s formulation for a remedy:
“First thing we do, let’s kill all the lawyers.”