Journal of National Security Law, Vol. 1, p. 455, 2005
19 Pages Posted: 11 May 2006
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.
Keywords: ethics, national security law, professional responsibility, torture
JEL Classification: K00, K10, K14, K33, K42, K49
Suggested Citation: 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: https://ssrn.com/abstract=901675