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Lawyers Who Protected Torturers Should Not Be Absolved

For the lawyers who advised the Bush administration on torture, there should be no war crimes trials or prosecutions, at least according to former Acting Solicitor General of the United States Neal Katyal.

Katyal deserves enormous respect, but I do not abide with these remarks, given at a lunch in his honor. The Young Lawyers Section of the Connecticut Bar Association on Monday, May 6, at Amarante’s Sea Cliff in New Haven recognized Katyal for his leadership and accomplished life.

“The question of how we deal with the past is an important one,” Katyal said. “I do not think talk of prosecuting (former U.S. Attorney General) Michael Mukasey or (former Deputy Assistant U.S. Attorney General in the Office of the Legal Counsel) John Yoo makes any sense. It is hard for us to understand what leaders were going through in the wake of 9/11.”

Katyal will cut lawyers slack where I won’t. His point of view demands an ear, because at 42 years old, he has accomplished more than most ever will in their whole lives: Yale Law, District Court Clerkship, Supreme Court  Clerkship, and a career that follows such laurels.

This man who embodies meritocracy served as President Obama’s Acting Solicitor General, the attorney who represents the United States in appeals courts. From that position, Katyal argued more than a dozen cases before the United States Supreme Court.

One of those cases was to free former U.S. Attorney General John Ashcroft from liability for inhumane treatment of detainees in the war on terror. Everyone – even right wing religious zealots from Texas – deserve counsel. It is a fundamental human right.

Katyal knows this, as he has also represented the despised: alleged terrorists. As pro bono counsel, he was counsel for Salim Hamdan, a Yemeni man captured by the Bush dragnet in the war on terror.

In Katyal’s first oral argument with the Supremes, he won a decision, Hamdan v. Rumsfeld, that delivered a major blow to the Bush administration’s war on terror. Hamdan is a free man now, thanks to Katyal outfoxing Republicans in the U.S. Senate. This win demonstrates how the right to counsel preserves civil liberties.

That may be the point Katyal tries to make in saying that Yoo, who presided over the infamous Torture Memos, should be free from international war criminal liability. Yet the Torture Memos deserve no quarter, and on his second day in office, President Obama repudiated the legal advice in the Torture Memos.

Katyal is now in private practice, but his heart is still in government work. His talk for the Young Lawyer’s section focused on a lawyer’s ethical responsibility in war time.

He told stories of how the Office of the Solicitor General in World War II suppressed evidence that would have likely changed the Supreme Court’s decision in the infamous Korematsu case – which constitutionalized Japanese internment camps on the American west coast.

None of those government lawyers apparently ever suffered consequences for seemingly unethical conduct in failing to have candor towards a tribunal. Yet Katyal argues the fog of war merits impunity and protects the dispensing of wrong legal advice.

If the Nuremburg Tribunals told us that acting on orders we know to be wrong is punishable, how can Katyal justify advocating for attorney absolution in national security exigencies?

For those in the internment camps, justice took decades. And even still, people were never made whole. Government lawyers who do harm should not be free from prosecution. Where is the justice for those harmed by dishonest government lawyers?

And listening to the erudite Katyal, I thought of Supreme Court Justice Robert H. Jackson, and wonder if Katyal sees Jackson as a role model. I want someone like Katyal to prosecute an American Nuremburg, trying the Bush actors who stepped over the line in the War on Terror, elected officials, military personnel, and their lawyers.

Katyal’s statements paint lawyers as some priestly class who we should protect because the right to receive legal counsel is sacred. Readers may recall this column two weeks ago dissected Mukasey’s reluctance to label waterboarding torture, and his failure to face the consequences that arise from that recognition.

I asked Katyal about what happens when America comes to its senses and recognizes waterboarding is torture (as we did when Pol Pot and the Cambodians did it). What do war crimes tribunals look like for high level officials in the Bush Administration?

He acknowledged that waterboarding is wrong and beyond the pale, but immediately after 9/11, American leaders confronted hard choices.

“I don’t like the legal process coming in and criminalizing these decisions,” Katyal said. He noted that he has not been shy about criticizing George W. Bush, and he added that there seems to be a degree of personalization directed towards those at the top of the Bush legal chain.

“At the end of the day, they were lawyers, not clients,” Katyal said. “Lawyers have a duty to say something is illegal and immoral, but the real issue are the folks who gave the orders. The legal advice may have been deficient, but there is a line we do not want to cross.”

Lawyers have a duty to make arguments for their clients. But what happens when those arguments seek to destroy other sacred human rights, like the right to be free from torture?

In areas of national security, where grey areas blur the clarity of law, Katyal said “I’m reluctant to go down that road.” And that is the fog of war: grey areas settling over what centuries of human experience have shown us as moral behavior.

And if we examine 9/11 as blowback from decades of American imperialism, justifying bad lawyering through the lens of a self-inflicted “national security” exigency holds no water.

Katyal seems to leave the door open for prosecution of the clients who made decisions based on this legal advice. Because of the format of the talk, I could not ask the follow up about prosecuting the non-lawyers.

But we must not place lawyers above the fray, where the authors of the torture memos like Jay Bybee parsed what pain is, and picked apart the definitions of words to bend the law to fit the policies already sought (or perhaps already in place).

What of the CIA lawyers who authorize drone strikes on children or who authorized the extraordinary rendition program?  Do we let these word priests of the cult of torture scot-free because spooks deserve lawyers, too?

Right is right and wrong is wrong. Waterboarding is torture. Those who helped it happen should bear responsibility for it. And not prosecuting the lawyers for war crimes leaves gaping holes for non-lawyers to escape through.

What if Dick Cheney or Donald Rumsfeld, should we ever prosecute them, employ a chicken-and-egg defense: My lawyer said waterboarding was legal, my counsel is not being prosecuted, so I, following his advice, shouldn’t be prosecuted either.

One doubts Katyal would absolve former U.S. Attorney General John Mitchell, and Nixonian lawyers John Dean and Charles Colson from criminal liability in Watergate because they were lawyers, giving war-time advice to President Nixon?

After all, part of Watergate was about breaking into Vietnam War whistleblower Daniel Ellsberg’s psychiatrist’s office. While the Pentagon Papers were a breach of national security (not 9/11), it all comes back to preserving American military dominance here and overseas.

Where government attorneys draft analyses to fit desired outcomes for the American imperial machine, we have to police the legal field. Lawyers cannot be above the law. As bright as Katyal may be, his opinion of not prosecuting bad lawyers for war crimes looks and sounds dim to me.

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