Efforts to hold the torture memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers' views of the situation in ways that appear unfathomable to outsiders. Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack widespread political support, as onlookers view such efforts through their own perceptual frameworks and partisan commitments.
Who should face accountability for the mistreatment of prisoners in the war on terror? Five years ago, the scope of prisoner abuse at Abu Ghraib was first revealed; this year, the Justice Department admitted that a single suspect was waterboarded one hundred and eighty-three times. (1) Some at the bottom of the political hierarchy have already been convicted for their participation in prisoner abuse. (2) Those closer to the top of the political hierarchy also find their actions subject to scrutiny, as the Department of Justice's Office of Professional Responsibility is carrying out an investigation into the professional conduct of the lawyers who authored the memos permitting "enhanced interrogation." (3)
This article argues that efforts to hold the memo authors professionally accountable for their advice will face two difficulties. First, it will likely be difficult to prove that the memos were written in bad faith. While legal scholars and other lawyers agree nearly universally that the memos represent bad legal advice, bad advice does not necessarily equate to bad-faith advice. The existence of perceptual filters and deep partisan identification may have shaped the lawyers' views of the situation in ways that appear unfathomable to outsiders. (4) Second, even if the Office of Professional Responsibility finds evidence of professional misconduct, there is a risk that efforts to hold the memo authors accountable will lack widespread support, as those efforts may be viewed by partisan opponents as lacking political legitimacy. (5) Onlookers will also view such efforts through their own perceptual frameworks and partisan commitments, and may therefore not agree that the memo authors' conduct deserves to be punished. In particular, this article argues that between 2005 and 2009 there was a redefinition of cultural commitments associated with partisan identity. In 2004 there was still a broad anti-torture American identity, but that identity became fragmented by 2008, with support for torture breaking along partisan lines. In time, cultural commitments may again shift to allow a united American identity that condemns torture. Until that happens, however, it is likely that accountability efforts will further entrench partisan animosity.
THE TORTURE MEMOS
The conventional narrative of the torture memos is that they represent the worst sort of venality--that the lawyers in the Office of Legal Counsel (OLC) were willing to sacrifice professional ideals of independence in favor of providing legal cover to blatantly illegal acts that the Bush administration wished to undertake. (6) Legal complaints center around two areas: the weak legal analysis of the Yoo/Bybee memo that was later with drawn, and the lack of factual support for other memos authorizing specific techniques. Moral complaints suggest that the lawyers were complicit in a policy of torture and abuse. (7)
There is little debate that the withdrawn memo's legal analysis is extraordinarily weak--its analysis was "widely regarded as preposterous," (8) even spectacularly bizarre. (9) The memo was criticized for defining torture "by lifting language from a Medicare statute on medical emergencies," "ignor[ing] inconvenient Supreme Court precedents," and "flatly misrepresent[ing] what sources said." (10) It was described as "almost a parody of textualism, in which words alone are considered, having no regard for the context of their usage." (11) Because the analysis was so bad, many assumed that the memo was written in bad faith: "One of these expectations is that the law will be interpreted in good faith, with an eye toward recovering the substantive meaning of a statute, treaty, or line of cases. Violating this expectation is the essence of the unethical conduct of lawyers like You and Bybee." (12)
Other memos, which gave a more detailed authorization of specific interrogation techniques, were criticized for their lack of factual support rather than deficiencies in legal analysis. (13) In one case, the CIA had asked for an opinion as to whether specific interrogation practices such as sleep deprivation, waterboarding, stress positions, and related techniques could be legally undertaken. (14) The OLC agreed on the legal standard: the techniques were impermissible if they were "specifically intended to inflict severe physical or mental pain or suffering...." (15) The OLC did not analyze whether such techniques would be reasonably viewed as inflicting such pain. Instead, as critics point out, the OLC memos defer to the CIA's assurance that their use of such techniques was not intended to cause severe pain or suffering. The memo accepted as a factual predicate that detainees would be "evaluated by medical and psychological professionals" who would ensure that "the detainee's physical condition [was] such that these interventions would not have lasting effect, and his psychological state [was] strong enough that no severe psychological harm would result." (16) Once that factual predicate was accepted, it was a short step to the legal conclusion that the techniques were not specifically intended to cause severe pain or suffering. The memos did not analyze whether outsiders would view such assurances as reasonable in light of what was known about the effects of such techniques.
Professor Brian Tamanaha finds this factual acceptance to violate the lawyer's duty, concluding that the OLC:
[I]ssued a legal opinion sanctioning the legality of these interrogation practices based entirely upon the promise of the potential criminal suspects that they would not violate the law when engaging in these practices.... [T]here was no independent or reliable factual basis to support the legal opinion. Without such a factual basis, the legal opinion simply could not be issued in good faith. (17) III. PERCEPTUAL FILTERS
But does either bad legal analysis or reliance on self-serving factual assumptions necessarily equate to bad-faith legal practice? In a recent article, (18) I argued that cognitive bias and associated blind spots may better explain such lapses. Both the unsupported legal claims of the Yoo/Bybee memo and the reliance of the "techniques memo" on the CIA's own self-serving assessment seem to fit in with classic bias blind spot research. (19) If the memo authors were trying to provide legal cover for a pre-ordained result, they did a very bad job of it--if the lawyers truly acted in bad faith, why would they not manufacture the appearance of more reliable data, rather than openly relying on self-serving assessments? It seems more likely that the authors were simply blind to how the rest of the world would view their analysis, and that they never thought to question the accuracy or reliability of the CIA's assessment. If they saw no reason to question the accuracy of the CIA's assurances, they would not expect others to do so either.
Social scientists have long known that people interpret facts and events in ways that conform to their prior expectations and allegiances. In 1954, a study of a Princeton-Dartmouth football game revealed that Princeton and Dartmouth fans viewed the game very differently. (20) Princeton fans were more likely to notice Dartmouth rule infractions, and vice versa. Fans were also likely to interpret those rule violations differently, believing that the other team's infractions were more likely to have been intentional than those of their own team. These differences in attention and interpretation have been referred to as a "perceptual filter." (21) Perceptual filters also exist in the political realm. A study of Bosnian
Serb, Muslim, and neutral observers showed that each group viewed media coverage of the 1994 Sarajevo market bombing very differently and formed different conclusions about who was responsible for the bombing. (22) Other studies showed similar effects in U.S. Presidential election coverage (23) and the Israeli/Palestinian conflict. (24) These differences are more than simply differences of opinion--they...