In 2002, the CIA’s “acting” general counsel, John Rizzo, asked lawyers at the Justice Department to render a legal opinion. The question? Could 10 specific “enhanced interrogation” techniques, including sleep deprivation, prolonged “stress positions,” and “waterboarding,” or water torture, as it used to be known, be legally used against certain “high-value” detainees in Bush’s nascent “war on terror?”
The response came on August 1, 2002, in the first of the now-infamous “torture memos” from Jay Bybee, the Ninth Circuit judge and former head of the Justice Department's Office of Legal Counsel, and his henchman, John Yoo, now a law professor at, of all places, Berkeley, California.
Wow. Seven sets of air quotes in two paragraphs. Can there really be any doubt that we have descended into the netherworld of Orwellian double-speak?
Obfuscating euphemisms aside, why did Rizzo ask for this legal opinion in the first place? What is the purpose of such an opinion? And should the authors of those opinions, specifically Bybee and Yoo, be held accountable for what they wrote?
Let’s figure it out.
In common law countries, such as the United States and Great Britain, a legal opinion generally refers to written legal advice from a lawyer or government law officer on a particular question of law. In the United States, legal opinions are commonly rendered at the close of business transactions -- mergers, acquisitions, and the like -- when legal counsel for one party delivers its opinion to the other party as to the viability and legality of the transaction in question.
Was the acquired company duly incorporated, with valid existence and good standing? Did it properly exercise the corporate power to carry out its business? Was all necessary corporate action taken to consummate the transaction? Were all necessary government approvals obtained, and was there any outstanding litigation that might stand in the way of the transaction?
It can most easily be thought of as an assurance or warranty by the seller to the buyer. For example, if Google was purchasing a start-up company that had developed new search engine technology, the legal opinion would be written by the target company’s law firm, and would talk about how the target company actually owned the technology in question, how there was no outstanding intellectual property litigation challenging that ownership, how all employees and agents of the target company were bound by enforceable non-disclosure agreements preventing the dissemination of that technology, and how the necessary approval of all owners of the company had been obtained.
If it’s not in the legal opinion, caveat emptor, baby.
So, why are thousands of these legal opinions rendered every single day? They require a lot of lawyer time, which means lots of money. Seriously, the guy who said talk is cheap must never have paid attorney’s fees. So what’s the point?
I mean, the rendering of these opinions is almost always a condition to the deal going through. No opinion, no deal.
Well, I can tell you it’s not for all the times when the opinions are correct. When that happens, everyone is happy. No, these opinions are written for the times when they’re wrong. When it turns out that the target company stole the search engine from a competitor, and Google spent millions of dollars for nothing. When that happens, Google can pull the opinion letter -- y’know, the one with the nice, fancy letterhead from the big law firm -- out of its files and sue the target company’s legal counsel for malpractice.
It’s a way of giving the buyer access to a potentially deep pocket in the event things go wrong. From the law firm’s point of view, it winds up insuring those aspects of the deal that make it into the legal opinion letter. Because of this, partners of law firms tend to take opinion letters very, very seriously.
I took one case to trial based on a legal opinion. The underlying transaction was a commercial real estate deal gone south (of course). In the legal opinion, counsel for the developer assured my client, the rich bank, that the developer had dotted all the necessary i’s and crossed all the necessary t’s.
One of those i’s -- or was it a t? -- was that the developer’s wife had signed a guaranty. Why was this important? So that the developer couldn’t shield his assets -- most often his house and other real estate -- from the bank by transferring them to his wife.
Well, in my case the developer wound up dying, the development project cratered, and the bank went after his personal assets, including those held by his wife.
Her defense? She’d never seen the guaranty before, much less signed it. And you know what? She was right. It seems the developer forged her name, allegedly without telling her.
I’m shocked, shocked, Mr. Madoff.
So what’s a rich bank to do? Pull out that opinion letter, the one the lawyer probably signed based on his client’s assurances, and sue the real estate lawyer for malpractice. Which is exactly what we did. And won.
Watching the poor guy after the jury came back, I felt kinda sorry for him. Not his fault, really. He was just left holding the bag.
Still, it illustrates the principle that a legal opinion, while not a full-blown guarantee, still represents a warranty and assurance by the attorney delivering it. A warranty and assurance the attorney must stand behind, and may ultimately be held accountable for.
That’s in the private sector, where the stakes are high and so are the fees. In the public sector, i.e. the government, legal opinions serve a somewhat different function. Whether rendered by the Department of Justice itself, or by one of the regulating agencies, such as the FCC or FDA, a government agency’s legal opinion is designed to clarify an arguably uncertain rule of law. So, for example, a group of radio stations might petition the FCC, the Federal Communications Commission, to issue guidance on how to implement HD radio stations in urban areas. Where the applicable statutes and regulations are unclear, and where no court has ruled on the issue, the FCC might issue a legal opinion, advisory in nature, to give some guidance to the radio stations.
And by advisory, I mean just that. The opinion is typically not binding, nor does it serve as a guarantee that a subsequent court looking at the same issue will rule the same way. To be sure, courts often look to such advisory opinions for guidance. The agencies are, after all, day-to-day players in the industries they regulate, with expertise far beyond that of most courts. But although persuasive, the advisory opinions remain distinctly non-binding in nature. Courts can, and often do, disagree with an agency interpretation.
Nor does the opinion insulate anyone from liability based on reliance. In the example above, the radio stations could still be held accountable for actions subsequently found to be in violation of federal law, even if the FCC had told them that those same actions were appropriate. Good-faith reliance on such an opinion, however, goes a long way to mitigating any penalties or fines that might later be imposed.
Significantly, in the event it turns out that the FCC, or FDA, or any other alphabet agency, was wrong in its interpretation of the law, neither the agency itself nor the lawyers involved in creating the advisory legal opinion are liable, individually or collectively, for their misinterpretation. If it turns out the FCC was wrong, the radio stations would ordinarily just be out of luck.
So private legal opinions are rendered in response to a request for specific assurances that a particular action is legal, the conclusions of the opinion are pre-determined and dictate whether a course of action (i.e., a business deal) will be consummated, and the attorney rendering the opinion may, and often is, held accountable in the event the opinion is wrong. In stark contrast, public legal opinions are rendered in response to a request for an independent opinion about an uncertain point of law. The outcome is not pre-determined, the opinion is non-binding, does not insulate those acting in reliance thereupon from liability, and does not lead to accountability on the part of counsel.
Whew, to quote Halle Berry, that was a mouthful. But it finally brings me to the recent furor over the Bush administration’s torture memos.
You know, where the CIA started using “enhanced interrogation” techniques in early 2002, in plain violation of international treaties and law, then when it realized what it was doing might have been illegal, asked the Justice Department for a CYA memo or two.
Why did the CIA start using these “enhanced interrogation” techniques in the first place? Good question. From all accounts, the “high value” detainees had already provided all the intelligence they had under ordinary interrogation. But when the Bush administration decided to create an Iraq-al-Quaeda connection as a casus belli for the Iraq war, new intelligence had to be extracted from these guys.
How best to extract confessions, implications, and other propaganda from an unwilling witness?
So what we have is a request to a couple of attorneys for a legal opinion that a particular course of action -- in this case an ongoing torture program -- is legal. The conclusion -- torture is legal when Dick Cheney does it -- is foregone and predetermined. Those relying on the memos are freed from blame based on that reliance.
Hmmmm. Sounds a lot more like a private legal opinion than a public one. An advisory opinion from an agency is supposed to be independent, dispassionate, and beyond the influence of political concerns. Here, the conclusions were dictated in advance by the Bush administration’s overriding, near-Oedipal, need to take out Saddam Hussein.
And the funny thing is that the lawyers writing the memos and the thugs relying on them were all on the same team. All doing Cheney’s bidding.
So should Jay Bybee and John Yoo be held accountable? Hell, yes. They weren’t carrying out their duties on behalf of an independent Justice Department. They were knowingly acting as agents of a renegade administration gone beyond the bounds of internationally accepted law. Holding them accountable for those despicable memos will no more “chill” future government attorneys from doing their jobs than impeaching Rob Blagojevich will hinder future governors from making legitimate political appointments.
Should we pursue the higher-ups, Cheney, Bush, et al? I think yes, but my opinion there is based solely on my feelings, not on the underlying principles of how a legal opinion works. So take that opinion for what it’s worth.
But as near as I can tell, the only defense Bybee and Yoo have is that they were “only following orders.”
Didn’t work for the Nazis. Shouldn’t work here.