[Richard Painter, guest-blogging, March 28, 2009 at 9:14pm] Trackbacks
What Should We Do Next?:

Although many of my commentators here disagree with me, I still believe there was poor lawyering at various levels that went into the so called torture memos.

It is also clear that efforts to single out particular individuals at OLC for blame do not get to the heart of what happened and why. The question never should have been asked to begin with. Someone high up the chain of command should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture. Otherwise, there should be no memo, period. That is what an ethics officer, if consulted, should have said.

There is plenty of blame to go around here, and at this point I do not see how the blame game will do us any good. It would be particularly disingenuous to look only at the lawyers who signed the memos (we know that the views of a lot of other lawyers both in and outside OLC went into these memos).

A number of commentators have mentioned state bar discipline. There is relatively little case law on discipline for bad legal opinions; in the private sector this is worked out through malpractice suits. In government, lawyers who give wrong answers or answer questions they should have refused to answer are fired or — as is the case here — have to deal with adverse public opinion. I suggest in my book some proposals for how we might improve the quality of lawyering at OLC going forward. One is to involve more career lawyers at OLC in opinion writing, as is the practice at the Department of State. The present administration I hope will take this issue seriously by doing what it can to put its own house in order.

Disciplinary action at the state level furthermore could set a bad precedent. Once state bar associations go down that route, I fear where it would lead. I certainly would not want to be a lawyer for the present Administration coming from a Red State if the state bar happens to be controlled by people who listen to Rush on the radio.

The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere.

Finally, law professors should address this subject with constructive suggestions for change, not with invective. Of particular concern are highhanded efforts to squelch free speech on campuses by saying for example that a lawyer who worked on one of these memos should not be invited to speak or to teach. This type of thing puts the former OLC lawyers on the moral high ground in a battle over campus political correctness — a sideshow — when the real focus should be on what went wrong in the United States government and why.