The Situationist Perspective on the Torture Memos

Cyberspace is already full of excellent commentary about the torture memos, so I've been reluctant to add another two cents.  I was struck, however, by John Yoo's recent live Q&A at the Washington Post's web site, where he said the following:

At the Justice Department in the first months after the 9/11 attacks, we sought to define what torture was, as established by an Act of Congress, to make sure that the CIA did not carry out any interrogation methods that violated the law. If you were to read that work, you will see, in fact, that we indeed looked at the legal reasoning of other countries, specifically Israel and Great Britain. You may have a different result in mind, and maybe you would have drawn the line of what was and was not torture differently, and you may even have done so differently under the circumstances and pressures of those days, but I would like to point out that it should be incumbent on critics to put themselves in that situation and give us their best legal opinion on the meaning of the statute. It is easy to play a Monday morning quarterback and look back with years of hindsight when one has the luxury of not working under the pressures of a recent attack on the country.

Many people have wondered how much of Yoo's legal advice was shaped by the particular environment in which he found himself after the 9/11 attacks.  For example, I previously speculated that contextual forces, such as those that existed at that time, may have affected Yoo's objectivity and the quality of his advice.  It had been my understanding (correct me if I'm wrong) that Yoo had not previously acknowledged that possibility, but the quote above implies that the high pressure context may have affected his analysis, at least to some degree.   

Of course, none of these observations, even if they are accurate, necessarily tell us whether Yoo should be disciplined.  They do illustrate, however, the importance of understanding how situational forces affect lawyer behavior.  In recent years, legal ethics scholarship (like a lot of legal scholarship) has drawn on insights from behavioral psychology, and the torture memo controversy offers a useful backdrop for studying how some of those conceptual insights intersect with the practice of law.

Comments

[Sanpete]

Yoo has vaguely mentioned the pressure of circumstances as a factor that affected the thoroughness of his work, and he (or his lawyer) raises it more at length as an issue in the response to the OPR report, arguing that the rules of professional conduct require the circumstances be considered. Of course, the memos themselves raised the heightened risk of the time as a factor, and he has said that a technique like waterboarding would only be appropriate in times of emergency.

I'm sure Yoo would strenuously object to your suggestion in your earlier post and op-ed that the Milgram experiment has any relevance. From what I've seen, Yoo always says he thinks he would have reached essentially the same conclusions without the pressures of time and circumstance. I haven't seen any evidence to contradict that. I think the idea that the Milgram experiment or other temporary psychological factors apply would be a more plausible theory with someone other than Yoo, who has strong views out of the mainstream.

[Andrew Perlman]

Sanpete, I think you may be right that Yoo would have reached the same legal conclusions, even absent the unusual pressures after 9/11. It's hard to tell for sure, so I acknowledge that the situational forces that I describe might not have been decisive in this particular case. That said, there are a lot of narratives out there about what happened, and I am simply offering one that seems to me to be at least as plausible as many of the others.

[Stephen R. Diamond]

kanBARoo court argues that the OPR used the wrong Model rule to determine whether Yoo committed misconduct.

New kanBARoo court. 75th Installment. "The Torture Memos & the Tortured Legal Ethics Justifying 'CYA Letters'"

http://tinyurl.com/ygym6mv

Most regular Legal Ethics Forum posters will find their positions explicitly classified in this Installment. Enjoy—

Stephen R. Diamond
http://kanBARoo.blogspot.com
http://juridicalcoherence.blogspot.com

[Stephen Diamond]

SanPete,

Andrew's situational factors and the Milgram study are on point; Yoo's response to the OPR's final draft admits that Yoo bowed to situational pressures:

"Among other shortcomings, [OPR] omits all discussion of the wartime mindset thrust upon the United States by the 9/11 terrorist attacks and of the accompanying fear of a follow-on attack still prevalent throughout the country in August 2002, and omits even to mention the chilling facts upon which OLC was required to render a complex and difficult legal opinion..."

These aren't the kind of "circumstances" that the rules of professional conduct require considering: they are exactly the considerations an ethical code must *ignore*. Yoo conflates the exigency of circumstances with their substantive press by misleadingly citing _Atty. Grievance Comm'n of Md. v. Kemp_, 641 A.2d 510, 514 (Md. 1994) for considering "the facts and circumstances of [Yoo's] case" in assessing ethical obligations when the _Kemp_ court held:

"Whether the representation the lawyer gives is incompetent or is merely careless or negligent depends upon what reasonably is necessary in the circumstances, i.e. the facts and circumstances of the particular case. Moreover, in determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include:
"the relative complexity of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question."

Yoo's (and Margolis's) treatment of groupthink as a relevant circumstance would make succumbing to wartime hysteria a potential excuse for distorting the law, but neither Yoo nor Margolis have provided authority for that outrageous contention.

Stephen R. Diamond
http://kanBARoo.blogspot.com

[Sanpete]

Stephen,

Yoo, though his lawyer, does raise the pressure of circumstances as an issue, but you'll notice the quote and the rest of that section doesn't claim the pressure had any particular effect, or any effect at all. It rather insinuates that it could have had effects on the quality or bias of Yoo's work, without ever saying it did. (The potential bias suggested is to not say no just to be on the safe side when experts advised doing so would increase the danger, but to say yes when possible in good faith.)

I don't see anything in what you quote or elsewhere that suggests Yoo or Margolis see groupthink as a defense. The main basis for the claim the circumstances must be considered is the commentary for the DC Rules of Professional Conduct, Scope [3], which does seem clear on that. (The part you quote from Kemp is particularly relevant to the fact that because of the highly secret nature of his work Yoo had a limited number of lawyers he could confer with, which might affect the thoroughness or quality of legal work.)

[Sanpete]

Stephen,

Your post about CYA letters linked to above raises issues I've been wondering about and would love to see addressed more fully, by those you mention or others who, unlike me, have some expertise in these matters. I'll post some thoughts I have on why OPR didn't take the approach you suggest, whether CYA letters are dishonest, and maybe some other points at the link.

[Stephen R. Diamond]

My point here isn't that Yoo's lawyer admitted Yoo's bias; of course he avoided that mis-step. Rather, that Yoo admits the relevance of Andrew's situational factors.

While the attorney's comment doesn't quite constitute a legally binding admission by Yoo, one also must wonder why Yoo would think the OPR should look into the ideological pressures felt by Yoo because they were *thrust* into the American *mindset*, if Yoo makes no claim of being affected by such pressures, which have the character of ideological press, not just time pressures. [Another question that hasn't been to my knowledge discussed is whether rushing an official legal opinion is _ever_ justified.]

I'll try to respond today to your posting at my link above.

[Sanpete]

Yes, Yoo asserts the relevance of situational factors. But he doesn't admit their relevance is primarily psychological, as in the Milgram experiments. He asserts their relevance as rational, in that it's rational to act differently in different circumstances, and limiting as to amount of deliberation, consultation, research, etc.