Legal Obligations: The Proper Role of White House Lawyers

An opinion issued on Aug. 1, 2002, by Assistant Attorney General Jay S. Bybee of the Department of Justice’s Office of Legal Counsel held that the federal statute that makes it a crime to commit torture outside the United States should not be read to “apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” The opinion further concluded that if the statute did criminalize interrogations ordered by the president, it was unconstitutional. The memorandum, which has become known as the “torture memo,” figures prominently in the ongoing public debate about whether there should be prosecutions of Department of Justice officials or a truth commission to investigate the treatment of detainees by U.S. officials. But as important as the memorandum is to any consideration of the past, it is at least as relevant to any consideration of how to ensure that in the future, the Department of Justice and the executive branch as a whole honor the rule of law and the U.S. Constitution