Tortured Logic

February 27, 2010 · Leave a Comment

The Justice Department has ruled that the lawyers who wrote memos justifying torture by the United States of America were guilty of bad judgement, but not of any ethical violation.  The legal profession notoriously protects its own while building thick walls around themselves hoping to wall out competition or any oversight other than self-oversight.  In this latest ruling Associate Deputy Attorney General David Margolis continues the poor tradition.  According to this opinion there are apparently no or very few limits to the use of power by those in power as long as some stooges with a JD have written an opinion that it is legal.  For shame.

Please read Executive Editor of The Week Eric Effron’s excellent opinion piece from the March 5, 2010 issue of that publication:

Is “legal ethics” an oxymoron? Having covered legal affairs earlier in my career, that question always struck me as clever but not entirely fair. Bar associations have elaborate mechanisms for policing ethical lapses, and ethics are debated at law schools and in seminars for practicing lawyers. But the lawyer-bashers were handed fresh ammo last week when the Justice Department found that Bush administration attorneys who’d ginned up the legal rationale to justify waterboarding and other harsh interrogation techniques were guilty of nothing more than “poor judgment” (see Talking Points). The lawyers were wrong on the law, Associate Deputy Attorney General David Margolis concluded, and they obligingly told their clients exactly what they wanted to hear. But it was all, somehow, ethical.

How can this be? Margolis ruled that the federal government—unlike the private bar—has never clearly defined professional misconduct for lawyers, so it would be unfair to punish lawyers who apparently were doing what they thought was right. That’s an interesting standard. For whoever is in power, as legal analyst Andrew Cohen noted, it’s highly convenient that there are no binding ethical standards for government lawyers: You can just ask them to concoct a legal justification for some dubious policy goal—such as giving the green light to waterboarding, or ignoring the Geneva Conventions. We like to imagine that our leaders are bound by the rule of law. But if thousands of government lawyers are bound only by what they or their bosses believe is right, then “the rule of law” might be the biggest oxymoron of them all.

Eric Effron

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