My criticism of legal arguments justifying torture seems to have created much controversy this week. I recognize that citation to international law and the views of a former head of the Office of Legal Counsel does not conclusively establish the case against torture. Neither do the views of Senator John McCain, a man who experienced torture in Vietnam, nor the views of the Presiding Bishop of the Episcopal Church who wrote to Senator McCain.
One commentator asks me to differentiate between prohibiting torture and prohibiting consumption of broccoli. In an earlier era, President George H. W. Bush might have found this analogy amusing because he publicly stated that he disliked it when his mother made him eat broccoli. In light of what has happened in recent years, the matter should be viewed more seriously.
This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.
Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.
In an earlier post I expressed some reservations about legislating certain aspects of personal morality (sex, alcohol, etc.). I worry that having too much law can encourage disrespect for the law. I fail to see why this is a reason not to have a law against torture. Simply because we do not have a law against everything, must we live in a society without laws against anything?
Finally, I did not take sides in any of my posts in the dispute currently afflicting the Episcopal Church. I did say that there are more important matters – such as the torture issue discussed in Bishop Griswold’s letter to John McCain -- than the personal life of the Bishop of New Hampshire. I hope that churches, and our government, will focus on these more pressing matters, of which there are many.
I also don’t think anybody is interested in listening to Episcopalians argue about sex. When, however, an argument about sex spills over into an argument about money and real property, there is a subject about which passions truly run high. The resulting litigation over breakaway parishes, currently going on in Virginia and in many other states, involves Civil War era statutes on disposition of church property, trust law, canon law, church-state issues, corporate governance law and other fascinating questions. This litigation will entertain law professors and other bystanders, although I hope the Church does not bankrupt itself in the process.