In Robert Bolt’s play, Man for All Seasons, Sir Thomas More is condemned to death for denying the legitimacy of the king’s divorce. The only witness against him is Richard Rich, an ambitious young lawyer who, by false swearing, dooms More and damns his own soul for all eternity. As More struggles to understand why, he learns that Rich has just been appointed Attorney-General for Wales. “For Wales?” he asks the young man. “Why Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales?”
I think of Richard Rich each time I read of another lawyer who has disgraced himself for power or preferment. Indeed, I have invented the “Richard Rich Society” in my mind for just such people. Their numbers include the Justice Department lawyers who authorized the kidnapping, torture, indefinite detention, and assassination of alleged terrorists by the Bush and Obama administrations. Others abetted these lawyers, or shielded them from exposure or prosecution. No one today would ask if these disgraceful lawyers fear the wrath of a righteous God. However, it is not too much to ask what they will tell their children when asked: “Daddy, what did you do in the war against terrorism?”
Their practiced answer, of course, will be “I kept America safe from terrorists.” However, history books will tell a different story, and the children will learn how their fathers twisted the law to give CIA agents and military guards legal cover so that they might kidnap and torture often innocent “enemies,” and hold them without trial for more than a decade in CIA and military prisons, including Guantanamo – the American Devils Island.
John Yoo (Yale Law, ’92), is a charter member of the Richard Rich Society. He is the very model of a modern Richard Rich. At the CIA’s request, Yoo wrote secret memos assuring CIA agents that they had legal authority to use “extraordinary techniques” when interrogating prisoners. These memos were secret, of course, because they could not have withstood the light of day. CIA officials jokingly referred to them as “get out of jail free cards” because they were meant to give American war criminals a new legal defense: “I’m not a war criminal because my lawyer said I could do it.”
Yoo also wrote memos justifying the creation of military tribunals that would not be bound by the ordinary rules of evidence – something officials don’t do unless they intend to introduce evidence obtained by illegal means.
The memos were a “bad idea and even worse advice,” Dean Chris Edley (Harvard Law, ’78) conceded when he defended Yoo’s return to his tenured position at Boalt Hall, but they couldn’t be deemed criminal unless a court so ruled. And because President Barack Obama (Harvard Law, ‘91), would not allow the torturers to be prosecuted, there was nothing to prevent Yoo from returning to the classroom.
To prosecute Yoo, Edley said, would also criminalize a philosophical dispute over the scope of the president’s powers. Yoo and his fellow lawyers were just advocates; President Bush and his aides were “the deciders.” “We did not take a policy position,” Yoo claimed. “All we did was give advice, as lawyers do, on what would be a defense if you got into trouble.” Of course, Dean Edley should have known from his own years in the White House that these memos were not amoral exercises. They were insurance policies, meant to shield brutal interrogators from prosecution by undermining the definition of war crimes. That is why military lawyers, were excluded from the drafting process. They knew what the laws of war required, and what kinds of reprisals that torturing enemy soldiers would provoke.
If Yoo were only giving abstract advice, his memos would have been more informative, more balanced, and less tendentious. Yoo would have also acknowledged, as every law student knows, that the Supreme Court had rejected his assertions of unlimited presidential power in the famous case of Youngstown Sheet & Tube Co. v. Sawyer (1952). And, if they were playing it straight, Yoo and his OLC colleagues would have mentioned the Convention against Torture and its implementing statute in their early memos.
But the politicians for whom they worked did not want dispassionate, evenhanded, comprehensive legal advice based on fair readings of precedent. Like Henry VIII, they wanted legal-sounding justifications for what Sir Thomas More would have recognized as immoral, criminal acts. Precedent was clear, of course. American courts had sent a Japanese soldier, a Texas sheriff, and Chicago policeman to prison for the near drowning of prisoners. But to Vice President Cheney, Bush’s Cromwell, Yoo’s reading of the law did not have to reflect precedent; it just had to cast doubt on settled law. And Yoo was just the quibbler to do it.
To Dean Edley, the academic Everyman, Professor Yoo was shielded from the moral judgment of Boalt Hall by “academic freedom,” a portable privilege that he took with him when he joined the Justice Department. That freedom “would be meaningless,” the dean reasoned, if it could not protect a tenured professor from being fired for participating in a criminal conspiracy to promote torture, kidnapping, and indefinite detention. Lawyers don’t conspire to facilitate war crimes, Edley reasoned; they just give immaculate advice.
As a result of Yoo’s “advice,” and Obama’s refusal to prosecute, government kidnappers, torturers, and assassins now enjoy de facto immunity from criminal prosecution. So, too, do the politicians and lawyers who enabled them. And if this “’advice” fails to persuade the American public, the Justice Department and Congress can undertake investigations at a glacial pace until the statute of limitations runs out.
Like John Yoo, other members of President Bush’s torture team have prospered from their lack of moral and legal scruples. David S. Addington (Duke Law, ’81), who was the driving force behind the torture memos and warrantless wiretapping on an industrial scale, is now a vice president for research at the Heritage Foundation. Attorney General Michael B. Mukasey (Yale Law,’67), was hired by Debevoise and Plimpton, despite his vociferous defense of waterboarding, indefinite detention, warrantless wiretapping, and the “my lawyer said I could do it” defense. John A. Rizzo (G.W. Law, ’75), now works for Steptoe and Johnson, the Defense industry lobbyists, despite his years approving secret prisons and torture as the CIA’s top lawyer. Former Attorney General Alberto Gonzales (Harvard Law ’82), who championed military tribunals, the Patriot Act, and torture, and advocated denying habeas corpus relief to prisoners, had more trouble gaining employment, but finally was hired by Texas Tech in 2009 and Belmont University Law School in 2011. Meanwhile, Jay Bybee (Brigham Young Law, ’77), who signed Yoo’s first torture memo, was rewarded a seat on the U.S. Court of Appeals for the 9th Circuit.
Like Richard Rich, none of these “can do” lawyers fears for his soul. But one has to ask, do they fear the judgment of history, or of their children?
Christopher H. Pyle, author of Getting Away with Torture: Secret Government, War Crimes, and the Rule of Law (2009), teaches constitutional law at Mount Holyoke College in South Hadley, MA. In 1970, as a former captain in Army intelligence, he disclosed the Army’s spying on civilians. He then worked for Senator Frank Church’s select committee to end the spying. He can be reached at firstname.lastname@example.org.