19 Geo. J. Legal Ethics 225 (2006)
Legal Advice as Moral Perspective

handle is hein.journals/geojlege19 and id is 235 raw text is: Legal Advice as Moral Perspective

ROBERT K. VISCHER*
I. INTRODUCTION
Even from an American public conditioned not to expect many signs of
integrity from the legal profession,' news that attorneys from the Department of
Justice's Office of Legal Counsel (OLC) provided an aggressive legal analysis
facilitating the torture of suspected terrorists unleashed a torrent of condemnation
and hand-wringing. Following closely on the heels of the photographs depicting
abuse at Iraq's Abu Ghraib prison, a steady stream of leaked OLC memoranda
painted a picture of government lawyers engaged in jurisprudential gymnastics in
an effort to validate the sort of practices that had sparked worldwide revulsion.
The White House eventually released many of the memoranda in hopes of
minimizing the political fallout, but the attention to the conduct of the attorneys
involved only intensified.2 Americans may have grown accustomed to tales of
attorney dishonesty, self-aggrandizement, and incivility, but twisting the common-
sense definition of torture and constructing blanket claims of immunity from
international and domestic torture prohibitions struck many as beyond the pale.
The critics spanned the political spectrum,3 reflecting a degree of consensual
outrage not often witnessed in an era defined largely by the red-blue divide4 on
issues of public import. The Senate was moved to reaffirm by acclamation that
the United States shall not engage in torture or cruel, inhuman or degrading
treatment.5 One journalist, having read the OLC's legal analysis of torture,
compared it to the advice of a mob lawyer to a mafia don on how to skirt the law
and stay out of prison.,6 Other descriptions thrown at the memoranda in question
* Associate Professor, University of St. Thomas School of Law. Thanks to Christopher Borgen, Mary Daly,
Rick Garnett, Bruce Green, Michael Perino, Bob Rodes, Tom Shaffer, Greg Sisk, Susan Stabile, Brian
Tamanaha, Brad Wendel, and Timothy Zick for helpful comments on earlier drafts of this article. Thanks also to
participants in faculty colloquia at Notre Dame Law School, Villanova Law School, and St. John's University
School of Law.
1. See DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE 3-8 (2000).
2. Press Briefing by White House Counsel Judge Alberto Gonzales (June 22, 2004), http://www.whitehouse.
gov/news/releases/2004/06/20040622-14.html (transcript of press conference at which White House Counsel
Judge Alberto Gonzales produced copies of several memoranda) [hereinafter Gonzales Press Briefing].
3. Lincoln Caplan, Lawyers' Standards in Free Fall, L.A. TIMES, July 20, 2004, at B 13 (noting that liberals
have condemned [the torture memorandum's] near recklessness and conservatives its lack of refinement).
4. On the television networks' electoral maps, states won by George W. Bush were colored red, and states
won by Al Gore were colored blue. See David Brooks, One Nation, Slightly Divisible, ATLANTIC MONTHLY, Dec.
2001, at 53.
5. Pauline Jelinek, Senate Reaffirms U.S. Opposition to Torture, Hous. CHRON., June 17, 2004, at 3.
6. Anthony Lewis, Making Torture Legal, N.Y. REV. BOOKS, July 15, 2004.

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