I’ve written extensively about the “torture memos,” including calling for John Yoo’s disbarment. So when I received an email about an upcoming panel discussion at American University’s Washington College of Law, I knew it was one I should attend: The Torture Memos: Lawyers, Ethics, and the Rule of Law. The panel was not designed as a debate about the interrogation tactics (although, of course, that did come up, from both sides). Rather, it was a discussion about the ethical obligations of attorneys in government in general, and at the Office of Legal Counsel in particular. Including discussing (but not necessarily answering) questions such as “who watches the watchers”.

Participants in the panel included:

The panel was moderated by Stephen Vladeck, Professor of Law at American University Washington College of Law, and included a keynote by Senator Sheldon Whitehouse.

The makeup of the panel is compelling. The Alliance for Justice created the short documentary Tortured Law, which expresses their point of view that those in charge need to be held accountable (give the movie a look; it’s only 10 minutes long). Stuart Taylor has written and spoken to the opposite extreme - nothing wrong was done by the OLC, and digging into it doesn’t serve any useful purpose (interestingly, he stated that those who went outside the bounds of the OLC guidance are fair game for prosecution). Prof. Luban has testified in favor of investigation into the ethics and responsibilities of the OLC attorneys. And Dan Levin was not only head of the OLC for a while during this period, he wrote the memo that replaced the withdrawn Yoo/Bybee torture-statute interpretation (it was indicated by one person that this was the first time he’s spoken on this subject outside Congressional testimony).

Prof. Vladeck did a nice job moderating the discussion, expressing no obvious bias, giving all parties equal time, and directing questions to each.

There was a surprising consensus that further investigation is warranted and would be useful - if it could be done in a non-witchhunt fashion (there’s the rub, as I’ve written about it my previous opinions). Prof. Luban used the example of the South African “Truth and Reconciliation” panels. Nan Aron pushed for a full independent-counsel-level investigation into the entire process. Stuart Taylor felt that the upcoming DoJ Office of Professional Responsibility report (which has been delayed over and over for a year now) will be enough to put the matter to rest. Perhaps the most startling opinion on this was from Dan. Levin:

...said this morning that “I personally am not opposed to criminal investigation of my conduct and others during the period in question.” Levin was referring to the period between 2002 and 2006, when the Office of Legal Counsel was producing memos justifying the use of “extreme” interrogation tactics on detainees in U.S. custody which many legal experts now say amounted to torture.

...

Later in the discussion, Levin also said that a truth commission that would investigate and reveal how the lawyers in his office reached their conclusions “would be useful.” Sen. Patrick Leahy (D-Vt.) has proposed such a commission, but so far apparently does not have majority support for the idea in Congress.

If you have the time to spend on it, there’s a video of the entire 3 hour session at the WCL website. The introduction is given by William Yeomans, a Law Fellow at WCL, and formerly Chief Counsel to Sen. Kennedy on the Senate Judiciary Committee.

I don’t know that any questions were really settled at this panel. I think I left it with more questions than I had going in. But it was a good panel, giving voice to opinions across the spectrum, and having people of all opinions agreeing that there are open issues with the ethical implications of what happened at OLC, and a belief that talking about it and exploring it are good things, not bad things, if they can be done for the purpose of learning from the event. How to do that without it being either retribution or theater is the big unanswered question.