Practice, Theory, and the War on Terror

This Essay considers whether lawyers should offer legal advice that clients request and will pay for, even when giving that advice might facilitate wrongful behavior. As a vehicle for analyzing the issue, this Essay discusses memoranda written for the Administration of President George W. Bush by Deputy Assistant Attorney General John Yoo, who advised that the physically and psychologically abusive interrogation of enemy combatants in Afghanistan was, or might be, legally justifiable. This Essay is neither intended to critique or defend the legal analysis underlying the so-called ¿torture memos,¿ nor to serve as a referendum on Yoo¿s political views. Rather, this Essay analyzes Yoo¿s particular role as a lawyer and what effect it should have had on how he conducted his work.