The Situation of John Yoo and the Torture Memos

Situationist friend Andrew Perlman recently published a terrific editorial in The National Law Journal on the situation of John Yoo, “The ‘Torture Memos’: Lessons for all of us.” Here are a few excerpts.

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It is easy to believe that John Yoo wrote his widely discredited “torture memos” because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo’s compliance shouldn’t excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings.

We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man’s repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions.

Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience . . . . [For a related list, see Zimbardo’s Situationist post here.]

Notably, the conditions that produced obedience in Milgram’s experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos.

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Of course, none of this justifies Yoo’s conduct or excuses him in any way. Indeed, Jack Goldsmith, the subsequent head of the OLC, rescinded some of Yoo’s memos and successfully resisted the same pressures that Yoo faced. Nevertheless, by trying to understand why Yoo would have offered fundamentally wrong legal advice, we can gain insights into why other lawyers in more commonplace professional settings might offer similarly bad advice to powerful figures, whether they are White House officials, important law firm partners or corporate executives. Our obedience might take the form of following a client’s request to bury a discoverable “smoking gun” document or offering evidence that we know is false, but the forces at work are ultimately the same

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To read all of Professor Perlman’s article, click here. In addition, we recommend his forthcoming law review article, “Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology” (forthcoming 36 Hofstra Law Review, 2007, available on SSRN), the abstract of which we have pasted below.

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This Article explores the lessons that we can learn from social psychology regarding a lawyer’s willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people’s behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result is that subordinate lawyers will find it difficult to resist a superior’s commands in circumstances that should produce forceful dissent. Finally, the Article proposes several changes to existing law in light of these insights, including giving lawyers the benefit of whistleblower protection, strengthening a lawyer’s duty to report the misconduct of other lawyers, and enhancing a subordinate lawyer’s responsibilities upon receiving arguably unethical instructions from a superiors.

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To watch a fascinating 4-minute interview by Bill Moyers of Jack Goldsmith about the situation of the DOJ decision making, click on the video below.

To view a 45-minute video in which Jack Goldsmith discusses the surprising role of lawyers in the war on terror, click on the following video.

Vodpod videos no longer available.

For a sample of related posts, see the series by Situationist contributor Sung Hui Kim, “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?, Part I, Part II, and Part III, and the post by Situationist contributor David Yosifon, “On the Ethical Obligations of Lawyers.”

Finally, to listen to a fascinating set of This American Life stories of “the Bush Administration, its unique style of asserting presidential authority, and its quest to redefine the limits of presidential power” generally, click here.

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