104 Nw. L. Rev. Colloquy 1 (2009-2010)

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Copyright 2009 by Northwestern University School of Law                     Vol. 104
Northwestern University Law Review Colloquy







PROFESSIONALIZING MORAL DEFERENCE



                                                               Michael Hatfield*




                              I. THE TORTURE MEMO

     As I write this Essay, legal memoranda about torture, once again, are
headline news.1 This Essay considers these memoranda. However, this Es-
say does not address the legality of torture or the legal limits of interroga-
tion or even if lawyers who provide bad advice on these issues should be
punished.2 Instead, this Essay uses what has come to light about the tor-
ture memoranda to consider broader issues about the contemporary state of
becoming and being an American lawyer. With new memoranda being re-
leased, for the sake of convenience, this Essay refers only to the best-known
example (at least as things currently stand), which is the August 1, 2002
memo to Alberto Gonzales signed by Jay Bybee and prepared by John
Yoo.3 Without substantive consideration of counterarguments, that memo-
randum concluded that torture was not illegal-at least not if the President
ordered the torture.4 To many, it seems undeniable that the memorandum



     Professor of Law, Texas Tech University School of Law. J.D., New York University School of
Law. I would like to thank Professor Thomas C. Hilde (University of Maryland Institute for Philosophy
and Public Policy and editor of ON TORTURE (2009)) for his editorial, professional, and personal sup-
port, as well as The Heinrich B11 Foundation of the German Green Party and The George Washington
University for their support of the symposium On Torture, where I presented an earlier version of this
Essay. I also would like to thank my symposium co-participants from whom I learned so much, espe-
cially Chinese human rights activist and Woodrow Wilson Visiting Fellow Dimon Liu; Professor David
Luban, Georgetown University Law Center; Aryeh Neier, Open Society Institute; Santiago Canton, Ex-
ecutive Secretary of the Inter-American Commisson on Human Rights; Professor Andrew Zimmerman,
The George Washington University; Professor Britter Arredondo, The George Washington University;
Professor Stephanie Athey, Lassell College; and Professor Rebecca Witmann, University of Toronto.
   I See Mark Mazzetti & Scott Shane, Interrogation Memos Detail Harsh Tactics by the C.LA.,
NYTIMES.COM, Apr. 16, 2009,
http://www.nytimes.com/2009/04/17/us/politics/17detain.html?pagewanted=print (link).
   2 Cf., e.g., Peter Finn, Holder Urged to Probe Allegations of Torture, WASHINGTONPOST.COM, Mar.
18, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/03/17/AR2009031702639.html
(chronicling the ACLU's efforts to convince the Attorney General to launch a criminal investigation into
the conduct of the Bush administration) (link).
   3 Memorandum from Jay S. Bybee, Assistant Att'y Gen., to Alberto R. Gonzales, Counsel to the
President  (Aug.   1,   2002)   [hereinafter the   Torture  Memo],    available  at
http://fll.findlaw.com/news.findlaw.com/nytimes/docs/doj/bybee80l02mem.pdf (link). See Paul M.
Barrett, A Young Lawyer Helps Chart Shift in Foreign Policy, WALL ST. J., Sept. 12, 2005, at Al.
   4 The Torture Memo, supra note 3, at 1-2, 33-39, 46.

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