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An ethics riddle in the notorious ‘torture memo’

By Diane Karpman

Diane Karpman
Karpman

Ethics issues dominate the media. Although some stories may initially seem to be cast in a partisan light, they are worth exploring because they raise issues that exist to some extent in everyone’s practice. 

At his Senate confirmation hearings, attorney general nominee Alberto Gonzales told us in his opening statement that he does not condone torture. There had been some real concern, because Gonzales was a central figure in creating the “torture memo” of August 2002, which characterized the Geneva Conventions as “quaint and archaic.” That memo was quietly repudiated on the DOJ home page one week before the hearings.

Military lawyers, the FBI and the Red Cross have all rejected the memo of August 2002.  Several high-ranking members of the military also denounced the Gonzales nomination, because of his involvement in the torture memo. Many believed that the memo led to the interrogation techniques employed in Guantanamo Bay and at Abu Ghraib.

A New York Times editorial, “Legal Breach: The Government’s Attorneys and Abu Ghraib” (Dec. 30, 2004), suggested the key problem. “Once charged with giving unvarnished advice, . . . the Bush Administration’s legal counsels have been turned into the sort of cynical corporate lawyers who figure out how to make something illegal seem kosher — or at least how to minimize the danger of being held to account.”

In explaining his position, Gonzales relied on the proverbial ethics riddle, “Who is the client?” This conundrum is often considered by insurance defense attorneys and government lawyers. Selective client determination allows for considerable ethics maneuverability. He suggested that because the “White House” was the client, the memo’s narrow definition of torture was permissible. He implied that if the “nation” were the client, the definition would be different.

According to the memo, if the interrogator only sought information and did not intend to hurt the prisoner, then whatever happened was not technically “torture.” It may seem that hearings were the reason for the DOJ’s repudiation of the memo, but others suspect that the real reason is that the government didn’t want to provide a potential defense for Saddam Hussein.

“Tainted” is how certain pundits described lawyers involved in the torture memo. Some labeled it as a “career breaker.” That myopic position fails to recognize that representation of clients does not constitute endorsement of their political, social or moral beliefs (ABA Model Rule 1.2). Perhaps the legal community only gives the “Teflon blessing” to radical progressive attorneys, whereas other attorneys are forever superglued to their clients’ positions.

Spinning the Geneva Conventions will not prevent the former justice of the Supreme Court of Texas from becoming attorney general. Delicately defining “torture” (reminiscent of the semantic games in President Clinton’s deposition) will not block confirmation. We all know that only truly heinous acts will block the appointment of a nominee.

Now, if Gonzales had paid a nanny under the table, then he would really be in trouble.

Ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.

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