Legal Ethics Expert: OLC Torture Memos ‘A Legal Train Wreck’
David Luban, a law professor and expert on legal ethics at Georgetown University, just called the torture memos written by the Bush administration’s Office of Legal Counsel “a legal train wreck.”
“The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct,” Lujan, the first witness testifying at today’s Senate Judiciary subcommittee hearing on torture, said. “Unfortunately, the torture memos fall far short of candid advice and independent professional judgment.” They “cherry-pick the law” and “read as if they were reverse engineered to reach a predetermined outcome.”
Luban also noted that the OLC lawyers bizarrely neglected to mention the most obvious case in recent U.S. legal history about waterboarding — U.S. v. Lee, which I’ve written about here — in which the Reagan Justice Department prosecuted a Texas sheriff for using the technique to extract confessions from suspects. The ruling in the case repeatedly called the technique “torture.”
While that’s all clearly a violation of legal ethics and cause for disbarment — as the forthcoming internal legal ethics report of the Justice Department is expected to recommend — as I’ve written before, it could also be grounds for criminal prosecution. If there was enough evidence that the memos were written in “bad faith”, as Luban just testified that he thinks they were, then the memos could also be found to have been written with the intent of furthering a crime.