Professionalizing Moral Deference

Hatfield, Michael | June 1, 2009

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently stand), which is the August 1, 2002 memo to Alberto Gonzales signed by Jay Bybee and prepared by John Yoo. Without substantive consideration of counterarguments, that memorandum concluded that torture was not illegal—at least not if the President ordered the torture. To many, it seems undeniable that the memorandum was not written in a good-faith effort to constrain any possibly illegal behavior, but rather as a shield against future prosecution.