Human Rights Watch have argued in a report just published that there should be a criminal investigation of various US officials involved in developing the US government’s torture doctrines under the Bush Administration. It’s a timely reminder of the sometimes dramatic conflict between a lawyer’s duty to their client and their duty to the public interest or the law. They say:
Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II(Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).
The tactic of using legal advice to sanitise wrong doing and exculpate clients from criminal prosecution (I cannot have been guilty, I had legal advice that said what I can do is lawful) comes in for particular criticism:
Moreover, while Bush administration officials have claimed that detention and interrogation operations were only authorized after extensive discussion and legal review by Department of Justice attorneys, there is now substantial evidence that civilian leaders requested that politically appointed government lawyers create legal justifications to support abusive interrogation techniques, in the face of opposition from career legal officers.
They suggest that such an approach may have amounted to a criminal conspiracy (whilst also carefully stating that “Human Rights Watch expresses no opinion about the ultimate guilt or innocence of any officials under US law, nor does it purport to offer a comprehensive account of the possible culpability of these officials or a legal brief.”). Their position seems to be somewhat in opposition to the Obama administration’s approach which was:
“to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”