The Question's No One's Asking

Over the past few days, there's been a tremendous amount of discussion about the prudential value of prosecuting torturers, and perhaps their legal advisers as well. The New York Times has even advocated that now-Judge Jay Bybee should be impeached for his role as lead drafter of the legal memos in question. 

In a variety of places, people have alluded to, or even stated explicitly, what one might call the Nuremberg Rule that following orders is no excuse for crimes, especially war crimes. I support that standard, and nothing that follows should be at all taken as an argument against that.

But we do need to recognize that there's a problem here: people whose very jobs are secret probably have trouble getting third-party legal advice. They're usually not lawyers, so they probably don't have the knowledge to see how one-sided and ineffectual the arguments presented are. I've read memos that led to lawyers being disbarred that were less dishonest in their presentation of relevant case law and argument.

When we put patriotic people in conditions where we tell them it's necessary, ordered, and legal, it's simply hard for anyone, regardless of character, not to trust in that legal claim. This is particularly true when the very act seems shocking to the conscience. Of course most of us would naturally believe that such an act would only be ordered, could only be ordered, if it was legal and utterly necessary to keep your country safe. 

So how do we make it possible for people who work in a secret world to get actual, proper legal advice? 

I'm not a lawyer, but my understanding is that the laws covering classification mean that they can't usually talk to outside counsel, even under the seal of attorney-client privilege. I also strongly suspect that the interrogators involved won't have the ability to sue the lawyers who gave that advice. The list of privileges that apply, such as state secrets, sovereign immunity, the fact that they weren't representing the interrogators, and, oh yeah, that one of them is a judge now, makes it pretty hard for the people who willingly followed that advice to gain redress. Overall, those rules make sense in the context of broader law. 

But these problems arose in a state of exception. If the facts are as they have been presented so far, we need a means for individuals in classified situations to get independent legal counsel. Even if you think that these interrogators should have been able to make this decision on their own, the fact is simply that it didn't happen enough. Having lawyers they could check with, that would not quash lingering doubts, but rather consider them genuinely and render an impartial opinion, would increase the likelihood that people would refuse illegal orders. Not being in that profession, I have no clue what such a legal capability would look like, but it sure seems necessary.*

If you believe that torture's wrong, don't just condemn it, or its advocates. Try to find a way to make it much harder in the future.

*As is broader oversight, greater focus on these issues in confirmation hearings, legal reforms, etc.