Government lawyers, Ticking bomb scenario, Legality of torture, Waterboarding, John Yoo
Legal Ethics and Professional Responsibility | Military, War, and Peace | National Security Law
This article discusses the ethical responsibilities of the lawyers who advise executive branch officials on the lawfulness of actions taken in the name of national security. To even talk about this subject assumes that there is some distinction between a government that does all within its power to protect its citizens, and one that does all within its lawful power. If there are good normative reasons to care about maintaining this distinction, then we have the key to understanding the ethical responsibilities of government lawyers. The Bush administration took the position that the role of lawyers is to get out of the way in circumstances of a threat to national security, and not do anything to interfere with the most aggressive possible government response. The author's argument is not based on the horrific nature of torture as an ordinary moral matter. In fact, one of the arguments here is that supporters of the administration's policies have made a conceptual mistake by attempting to establish the moral permissibility of torture in some cases, those resembling the hypothetical "ticking bomb" scenario. The problem with this argument is not only that the ticking bomb case is wildly unrealistic, but that the legality of torture is distinct from the morality of torture, and it is the job of lawyers to advise on the former, not the latter.
Wendel, W. Bradley, "Executive Branch Lawyers in a Time of Terror: The 2008 F.W. Wickwire Memorial Lecture" (2008). Cornell Law Faculty Publications. Paper 485.
Published in: Dalhousie Law Journal, vol. 31, no. 2 (Fall 2008).