Document Type
Article
Publication Date
2010
Abstract
The February 19th, 2010 release of a memorandum by the Justice Department clearing former Bush Administration lawyers John Yoo and Jay Bybee of any professional misconduct for their roles in authoring the so-called torture memos may have closed the chapter on the case against Bush Administration lawyers for formal sanctions from the United States government. But the debate about the propriety of the lawyers’ actions and the proper repercussions for them is far from over. The DOJ memorandum has renewed debate in the press and the academy about the now-hypothetical just deserts for the two men, even while Spanish authorities continue to pursue formal international criminal investigations against them. In Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?, Professors Claire Finkelstein and Michael Lewis debate whether the authors of the memoranda concerning enhanced interrogation techniques should be subject to criminal prosecution. Professor Finkelstein opens the debate by making the case that the lawyers could have – and should have – been charged as accomplices to torture. Eschewing debates over the applicability of the Geneva Conventions, Finkelstein argues that domestic law provides federal prosecutors all the tools needed to convict the men and the rule of law demands those prosecutions be pursued. Professor Lewis counters that while a case could be made for prosecution for erroneous legal advice in some circumstances, it cannot be made here because the techniques outlined in the memoranda do not clearly constitute torture. Lewis highlights the lack of legal authority defining torture, the careful circumscription of what was authorized in fact, and the safeguards employed by U.S. interrogators. Accordingly, he concludes that Yoo and Bybee cannot be held liable as accomplices to torture even if their conclusions were later rejected.
Keywords
Legal Ethics, Constitutional Law, Criminal Law and Procedure, Federal Courts, Human Rights Law, International Law, Terrorism and Democracy
Publication Title
University of Pennsylvania Law Review
Repository Citation
Finkelstein, Claire Oakes and Lewis, Michael, "Should Bush Administration Lawyers Be Prosecuted for Authorizing Torture?" (2010). All Faculty Scholarship. 994.
https://scholarship.law.upenn.edu/faculty_scholarship/994
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Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Criminology and Criminal Justice Commons, Defense and Security Studies Commons, Ethics and Political Philosophy Commons, Human Rights Law Commons, International Law Commons, Jurisprudence Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, National Security Law Commons, Politics and Social Change Commons
Publication Citation
158 U. Pa. L. Rev. Pennumbra 195 (2010).