David Luban's Testimony on Torture Today in the House Judiciary Committee

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Testimony of David Luban
Before the House Judiciary Committee,
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Hearing on: “From the Department of Justice to Guantanamo Bay:
Administration Lawyers and Administration Interrogation Rules, Part I”
May 6, 2008

Mr. Chairman, and Honorable Committee members,

I’d like to thank you for inviting me to testify today. I am not here as an insider
with new information to give you. I am a law professor who specializes in legal ethics.
I’ve written textbooks and other books on the subject. As a scholar of legal ethics, I have
closely studied the role that government lawyers played in approving harsh
interrogations. That is what I am here to testify about.
I want to start with a story. Jack Goldsmith headed the Justice Department’s
Office of Legal Counsel in 2003 and 2004. Last year, he published his memoirs of that
period. At one point, he describes an OLC memo on interrogation written before he
joined the Office. He calls it a “golden shield” for interrogators. What he meant by
“golden shield” was that interrogators relied on its assurance that the harsh tactics they
were using were legal. And Goldsmith found himself in the tough position of
withdrawing that Golden Shield as well as a second OLC memo on interrogation.
Goldsmith did not withdraw them because he was a political opponent of John
Yoo, the lawyer who wrote them. He was on the same side. He withdrew them because,
in his words, they had “no foundation in prior OLC opinions, or in judicial decisions, or
in any other source of law.”1 The “golden shield” turned out to be made of hot air.
Interrogators were misled, and detainees may have suffered cruel and illegal treatment
because of these memos.

1
Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 149 (2007);
the reference to the “golden shield” is at page 162.
2
The Golden Shield found that inflicting physical pain isn’t illegal unless the pain
reaches the level of organ failure or death; that enforcing laws against authorized
interrogators is unconstitutional; and that self-defense can include cruelty to helpless
detainees. It’s easy to see that under these standards, practically anything goes. The
trouble was that none of this is really the law. The memo ignored inconvenient Supreme
Court precedents, misrepresented sources, and pulled the “organ failure or death”
standard out of a Medicare statute on emergency medical conditions.
Mr. Chairman and committee members, when a trusted government lawyer writes
a “golden shield,” it should meet the gold standard. We should be confident that the
lawyer has described the law as it really is. Not the law according to the lawyer’s pet
theories, and not the law as the client would like it to be, no matter who the client is.
Lawyers sometimes have to say “no” to clients, and in its prouder days OLC lawyers
have said no to presidents of the United States. Playing it straight is the lawyer’s most
basic obligation.
I would propose two rules of thumb for a government lawyer writing an opinion
on what the law means. First, the opinion should say the same thing it would even if you
imagine your client wants the opposite from what you know he wants. That guarantees
that you are not tailoring the opinion to reach some predetermined result. Second, the
opinion should be able to stand the light of day; otherwise, it’s probably wrong.
Obviously, before being published, some opinions will have to have sensitive intelligence
information redacted out. But there is no reason that an opinion about the meaning of the
Constitution or the interpretation of law should be a state secret.
3
There is a common misperception that lawyers are always supposed to spin the
law in favor of their clients. That’s simply not true. It is true that in a courtroom,
lawyers are supposed to argue for the interpretation of law that most favors their client.
The lawyer on the other side argues the opposite, and the judge who hears the strongest
case from both sides can reach a better decision.
But matters are completely different when a lawyer is giving a client advice about
what the law means. Now there is nobody arguing the other side, and no judge to sort it
out. For that reason, legal ethics rules require the lawyer-advisor to give an independent
and candid opinion of what the law really requires.2 The ABA emphasizes that “a lawyer
should not be deterred from giving candid advice by the prospect that the advice will be
unpalatable to the client.”3
This is common sense. Otherwise, clients might go to their lawyers to say, “Give
me an opinion that says I can do what I want” – and then duck responsibility by saying,
“My lawyer told me it was legal.” Then we would have a perfect Teflon circle: the
lawyer says “I was just doing what my client instructed” and the client says “I was just
doing what my lawyer approved.”
Government lawyers have an awesome responsibility. OLC opinions bind the
entire executive branch. They have the force of law inside that branch. The idea that
unelected lawyers are writing secret legal opinions that spin the law makes a mockery of
democratic government. It means the executive branch is governed by a secret
constitution – a constitution written by activist lawyers instead of the constitution written
by the Framers.

2
ABA Model Rules of Professional Conduct, Rule 2.1 (Advisor): “In representing a client, a lawyer shall
exercise independent professional judgment and render candid advice.”
3
ABA Model Rules of Professional Conduct, Rule 2.1, cmt. [1].
4
Without getting too deeply into technicalities which, quite frankly, only a lawyer
could love, let me summarize in a bit more detail just how spun the torture memos were.4
First of all, they argue for a near-absolute version of executive power – a version that
says the Commander in Chief can override any law in the statute book.5 The effect of
this argument is that a crime is not a crime if the Commander in Chief orders it. Mr. Yoo
paints a picture of an imperial commander in chief beyond the law that would have made
the Founding Fathers’ jaws drop in astonishment.6 In making this argument, Mr. Yoo
simply ignored Supreme Court precedents reining in the commander in chief.7 In the
same way, arguing for a necessity defense to the crime of torture, he ignored an
inconvenient Supreme Court case decided just fifteen months earlier – an opinion that
cast doubt on whether necessity defenses actually exist in federal law.8 And he ignored
the Constitution itself: far from granting a “commander-in-chief override” of the laws,
the Constitution requires the President to “take care that the laws are faithfully executed.”

4
Here I am referring to Mr. Yoo’s August 1, 2002 memorandum, which went out over Judge Bybee’s
name, as well as the March 14, 2003 memorandum to Mr. Haynes, which went out over Mr. Yoo’s name.
The arguments I discuss appear in both memoranda.
5
The Levin Memorandum did not include this argument, but it also did not withdraw it. And an earlier,
published, OLC opinion – presumably still in force – also makes the commander-in-chief override
argument.
6
My own review of the founding era debates reveals deep concern about possible presidential abuse of the
standing army. David Luban, On the Commander-in-Chief Power, 60 S. Cal. L. Rev. (forthcoming).
Recently, David J. Barron and Martin S. Lederman have exhaustively surveyed historical evidence from the
founding of the republic to the present and found no trace of the commander-in-chief override idea until
after the Civil War, and very little political or legal precedent for it since then (although the idea won some
support within the academy). David J. Barron & Martin S. Lederman, The Commander in Chief at the
Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008);
Barron & Lederman, The Commander in Chief at the Lowest Ebb – A Constitutional History, 121 Harv. L.
Rev. 941 (2008). Their review of the original understanding appears in the first of these article at pages
772-800.
7
Thus, his opinions do not mention the leading case Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579
(1952)(holding that the President’s commander-in-chief power did not permit him to seize steel mills
during the Korean War); nor do they mention one of the earliest and clearest cases in which Congress
constrained the president’s commander-in-chief power and the Supreme Court upheld it: Little v. Barreme,
6 U.S. 170 (1804)(upholding damages against a naval officer who, who during the undeclared “quasi-war”
against France, had followed President Adams’s orders to seize ships sailing from French ports, contrary to
Congressional restrictions).
8
United States v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001)(expressing doubt that a
necessity defense exists in federal criminal law absent a statute providing it).
5
Second, as I mentioned earlier, he wrenches language from a Medicare statute to
explain the legal definition of torture. The Medicare statute lists severe pain as a possible
symptom of a medical emergency, and Mr. Yoo flips the statute and uses the language of
medical emergency to define severe pain. This was so bizarre that the OLC itself
disowned his definition a few months after it became public. It is highly unusual for one
OLC opinion to disown an earlier one, and it shows just how far out of the mainstream
Mr. Yoo had wandered. This goes beyond the ethical limits for a legal advisor. In fact,
even in the courtroom there are limits to spinning the law: ethics rules forbid advocates
from making frivolous legal arguments, or failing to disclose adverse legal authority.9
But it would be a mistake to focus only on Mr. Yoo. Mr. Levin’s replacement
memo also takes liberties with the law. In particular, when the Levin Memo discusses
the term “severe physical suffering” (which is part of the statutory definition of torture),
it states that the suffering must be “prolonged” to be severe – and that requirement simply
isn’t in the statute at all.10 Under that definition, of course, waterboarding would not be
torture because people break within seconds or minutes. This is a perfect example of a
legalistic definition that looks inconspicuous but in reality narrows the definition of
torture dramatically. Notice that the quicker a technique breaks the interrogation subject,
the less prolonged his suffering will be – so the harsher the tactic, the less likely it is to
qualify as “torture.” It goes without saying that if Congress had written the statute that

9
See ABA Model Rules of Professional Conduct, Rule 3.1 (“A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing
law.”); Rule 3.3(a)(2) (“A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel.”)
10
The torture statute does require that severe mental suffering must be prolonged. 18 U.S.C. § 2340(2).
But the very fact that Congress included no parallel requirement in the same statute’s treatment of physical
suffering shows, under ordinary interpretive methods, that it should not be read in.
6
way, OLC lawyers would be bound to respect it in their opinion. But it should also go
without saying that lawyers ought not to rewrite a statute to include language that is not
there.
Rather than continuing to dissect the arguments of these memos and others, I am
attaching one of my publications that does so to this written testimony. It is titled “The
Torture Lawyers of Washington,” and it is a chapter in my book Legal Ethics and Human
Dignity. My main point is that the torture memos take enormous liberties with the law
and reach eccentric conclusions.
The authors may believe their conclusions represent the law as it should be. But
the job of a legal opinion is to advise the client on the law as it is. If that dissuades the
client from doing something the client wants to do, so be it. In the words of the ABA,
“Almost without exception, clients come to lawyers in order to determine their rights and
what is, in the complex of laws and regulations, deemed to be legal and correct. Based
upon experience, lawyers know that almost all clients follow the advice given, and the
law is upheld.”11 The lawyer’s job is emphatically not to enable clients to defy law by
interpreting it oddly.

11
ABA Model Rules of Professional Conduct, Rule 1.6, cmt. [2].