48 Pages Posted: 11 Oct 2004
Date Written: October 5, 2004
By appearing to offer a legal justification of torture, attorneys at the Department of Justice's Office of Legal Counsel stand accused of facilitating the government's mistreatment of prisoners held in the war against terrorism. This article seeks to place attorneys' complicity in the prisoner abuse scandal into a broader professional context, exploring the purported amorality that serves as the foundation for the infamous "torture memorandum" and, more broadly, for the ethical paradigms under which American lawyers operate every day. Specifically, the article argues that attorneys' own moral convictions are inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney's advice is pitched in exclusively legal terms - as was the torture memorandum - the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. As such, the lawyer's interpretive morality is neither challenged nor endorsed by the client; it simply holds sway over the course of representation. In this regard, the amorality of legal advice is a fiction, but not a harmless fiction, for it facilitates the tendency of clients to equate legality with permissibility. This article traces the paths by which attorneys' own moral convictions can be brought to the surface of the attorney-client dialogue.
Keywords: Legal ethics, morality, lawyers, terrorism
JEL Classification: K4
Suggested Citation: Suggested Citation
Vischer, Robert K., Tortured Ethics: Abu Ghraib and the Moral Lawyer (October 5, 2004). St. John's Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=601203 or http://dx.doi.org/10.2139/ssrn.601203