June 5, 2006

Moral responsibility and the law

Dan Kahan on the moral responsibility of lawyers in relation to the torture memos as given in his commencement speech at Yale Law School:

A little over a decade ago, a brilliant 25 year-old was standing where you are. Less than a decade later, after serving as a Supreme Court Law Clerk and as professor at an elite law school, he found himself serving as Deputy Assistant Attorney General in the Office of Legal Counsel. At the behest of White House lawyers who were battling internal opposition from career military officers and lawyers, he wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But I think a large part of the credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago. He too clerked for a Supreme Court Justice and then served on the faculty of a major U.S. law school. In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo. This was well before the Abu Ghraib prisoner abuse scandal came to light, at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.This lawyer, Jack Goldsmith, was ultimately pushed out of OLC and is now languishing at an obscure law school in Cambridge, Massachusetts. When he got there, by the way, a portion of that institution's faculty, unaware of the role he had played in overturning the Torture Memo, and later in temporarily suspending the then still-secret NSA warrantless domestic surveillance policy, refused to even acknowledge him in the halls. Well, some of the lawyers trained at that school also played a sad role in the Torture Memo. Now that Goldsmith is there, I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it's much less likely any of you ever will either. This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself. Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.
The applied aspect of the law that Kahan talks about, which makes it inseparable from the morality of its conclusions is what I find most intriguing about the law. But, ironically, it is the amorality of economics, particularly microeconomics that I find most attractive. If only the real world were as simple as price theory models, then I could have the best of both worlds.