The first question on my recent legal ethics exam at American University Washington College of Law was what, if any, bar disciplinary action might be taken against the lawyers who wrote the infamous torture opinions. Most of my students agreed with me that, based on the facts now known, there is nothing that can be done under current law. Why is that so, and what might be done about it?
There would be grounds for discipline if the opinions were not good-faith attempts to determine the proper meaning of torture as applied to specific kinds of “enhanced interrogation,” but there is no such evidence. The lawyers surely knew what the expected “right answer” was to the questions posed, and they plainly knew that higher administration officials viewed these techniques as vital to obtaining information that they believed was necessary for our security. The opinions were all classified, and knowledge about these programs was limited on a need-to-know basis, both of which made it more difficult for the lawyers to ask others to review their conclusions.
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