For more than a year, a Justice Department watchdog has been investigating whether lawyers who authorized harsh interrogations violated legal ethics. Attorney General Eric Holder says the investigation is nearly done.
But to get to the bottom of the case, the watchdog has to take a close look at legal ethics rules, and how they relate to torture memos.
The popular image of a lawyer is someone in a courtroom, furiously spinning a one-sided version of the facts and the law. That's what advocates are supposed to do in a trial. But that's not what they're supposed to do at the Justice Department's Office of Legal Counsel.
"The rules are completely different when it's just the lawyer and the client in a confidential relationship," says David Luban, a legal ethicist at Georgetown University. "The legal ethics rules call on lawyers to be absolutely candid and straight up — not to spin the law the way they would if they were arguing in a courtroom, but to give more or less the same advice they'd give if they knew their client wanted the opposite."
So one ethics question about the memos is: Did Justice Department lawyers offer an unbiased view on the definition of torture?
Critics Say Omissions, Sloppiness Violate Ethics
Critics say the lawyers left out important, relevant cases that would have pointed to different conclusions.
For example, in 1983, a Texas sheriff was tried for waterboarding prisoners. Justice Department prosecutors called the practice torture. But a 2002 Justice Department memo analyzing whether waterboarding is torture makes no mention of the case.
"If you don't notice and cite a case that goes on and on about waterboarding and calls it torture, it just looks like willful blindness," says Brad Wendel, a legal ethicist at Cornell University. "It looks like you are gerrymandering the legal advice to reach the conclusion your client wants without genuinely impartially carefully considering what the law permits."
And Wendel points to other red flags, too.
Maybe lawyers didn't intentionally skew the law. Maybe they just missed the Texas case.
Wendel says that points to another ethics rule.
"Ethics rules can require good lawyering, so sloppy lawyering can be a violation of the duty of competence," he says.
A Look At How The Memos Were Created
Not every case of sloppy lawyering is an ethics breach, though.
"There is a difference between not discussing every potential issue and knowingly concealing the issue," says Tom Morgan, a legal ethicist at George Washington University. "The question of what cases are relevant and what are not, what issues are relevant and what are not, is — to some extent — in the eye of the beholder."
So the challenge for Justice Department ethics investigators is to distinguish a legitimate judgment call from a violation of legal ethics that deserves to be punished.
Professor Luban says in order to make those distinctions, investigators at the Office of Professional Responsibility need to look at how the memos were created.
"I'm told that the [Office of Professional Responsibility] report looks at the e-mail traffic and earlier drafts which might give some other hint that the law was being cherry-picked and that the memos were driven by the result," Luban says.
Other sources confirm that a draft of the report included a detailed play-by-play of how the memos were created. That gets at the question of whether lawyers knowingly omitted important cases to skew their findings or really engaged in a good faith analysis of the issues.
The office conducting this investigation has never been under this much scrutiny before. Some of the Bush administration's defenders have accused the Office of Professional Responsibility of going on a political witch hunt.
Attorney Nadira Clarke defends the office. She used to work there, though she has no knowledge of this particular investigation.
"You want some kind of internal policing," she says. "The department is communicating to its attorneys what is expected of them in terms of their conduct and what conduct will be and won't be acceptable."
Attorney General Holder has said the report is practically finished. Now parts just have to be declassified before it can be released.