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http://ssrn.com/abstract=901675
 
 

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Ethical Issues Raised by the OLC Torture Memorandum


Kathleen Clark


Washington University in Saint Louis - School of Law


Journal of National Security Law, Vol. 1, p. 455, 2005
Washington U. School of Law Working Paper No. 06-05-02

Abstract:     
This article analyzes the August 1, 2002 Torture Memorandum from the Justice Department's Office of Legal Counsel, and examines the legal ethics implications of that memorandum.

The article identifies three major inaccuracies in the Torture Memorandum. First, the memorandum incorrectly defines torture so narrowly that the prohibition on torture would apply only when an individual specifically intends to impose the kind of extreme pain that would be associated with organ damage or death. Second, the memorandum inaccurately asserts that a government official indicted for torture would be able to use an affirmative defense to gain an acquittal. Third, the memorandum claims that the Constitution allows the President to authorize torture even though Congress has prohibited it.

The lawyers who wrote the Torture Memorandum appear to have violated two rules of professional ethics: Rule 2.1 requiring lawyers to be candid when they provide clients with legal advice, and Rule 1.4 requiring lawyers to adequately inform their clients. By investigating and - if appropriate - disciplining these lawyers, state bar authorities can hold accountable the lawyers who helped establish the Bush Administration policy of torturing detainees.

Number of Pages in PDF File: 19

Keywords: ethics, national security law, professional responsibility, torture

JEL Classification: K00, K10, K14, K33, K42, K49

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Date posted: May 11, 2006  

Suggested Citation

Clark, Kathleen, Ethical Issues Raised by the OLC Torture Memorandum. Journal of National Security Law, Vol. 1, p. 455, 2005; Washington U. School of Law Working Paper No. 06-05-02. Available at SSRN: http://ssrn.com/abstract=901675

Contact Information

Kathleen Clark (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
314-935-4081 (Phone)
314-935-6493 (Fax)
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