Torturing Law to Death

JURIST Contributing Editor Nancy Rapoport of the William S. Boyd School of Law, University of Nevada Las Vegas, says that the apparent willingness of US Department of Justice officials - all the way up to and including former Attorney General Alberto Gonzales - to authorize harsh interrogation techniques in support of government policy raises the question of whether we are training generations of law students to parse legal language so carefully that they lose sight of the effect of their interpretations on human lives....



The recent New York Times revelation that the Justice Department authorized the CIA to interrogate suspects by waterboarding them or keeping them in 50-degree rooms has shown us just how far we're willing to go in "interpreting" the law. In one corner, we have the very real threat of terrorism, committed by those who don't hesitate to murder innocents in brutal ways; in the other corner, we have some lawyers (including the former Attorney General) secretly approving the types of activities that do "shock the conscience" of most people.

What concerns me is how far we're willing to bend what is "legal" so that we can perform acts that likely fit outside the normal definition of "legal." Are we training generations of law students to parse language so carefully that they lose sight of the effect of their linguistic cavils?

Law school teaches students that words matter, and that the smartest lawyers win by using words more creatively than do their opponents. The smartest lawyers come up with the most original types of deals in business; they pick apart the drafts of other, less-smart lawyers looking for loopholes in legislation, contracts, and pleadings; and they use their wordsmithing to eke out their clients' best positions. In much the same way that scientists use their brains to invent new uses for nuclear power or space exploration, lawyers use their brains to invent new ways of interpreting language that often isn't very clear.

Scientists discover things because they can — they have an innate need to take the discovered world and built upon it. Lawyers parse words because they can — we've trained them to split hairs, to distinguish between two cases that can look almost identical on the surface. What policymakers choose to do with new scientific discoveries takes those discoveries into the realm of good or evil (and I use those words deliberately). What policymakers do with legal prestidigitation also can be used for good or for evil.

What we don't train law students to do is to understand that there are people behind these laws. Every time we insist on dispassionate answers in class, we chip away at the students' vague understanding that people enter into contracts, people are the subjects of lawsuits, and people are governed by laws. We spend so much time teaching students how to deduce rules of law that we reduce people's lives to words on a page.

What would have happened if the Attorney General had asked himself how he would have reacted to the "non-torture" of physical persuasion that fell just short of organ failure? Would he still have believed that authorizing such activities made the United States more secure? I have known an officer who survived torture in Vietnam, and I have watched Return With Honor, the story of the U.S. captives there (including his story). Their goal under torture was to provide useless information, knowing that their physical and mental pain would cause them to confess something.

We also don't train law students to understand the pressure that they'll get from their social settings — the need to please their bosses and their clients, and the cognitive dissonance that they'll face when they're asked to do something that would normally go against their normal code of ethics. We don't warn them that it's far too easy to justify bad conduct by inching so slowly over the line of what is right that they don't see themselves on the wrong side until it's too late. What's worse is that we don't teach them that they must say no to some of the things that clients may want to do. We say that they "may" say no, under the rules of ethics, when the client wants to do something that the lawyer finds abhorrent. We say that they must say "no" when the client wants to do something clearly illegal. We don't teach them that they will find ways to justify illegal behavior without realizing they're doing it—and that we're giving them the very tools that they'll need to justify that behavior.

There has to be a middle ground between teaching students pure law, which eliminates the need to think of the humans that it affects, and paralyzing them with the knowledge that everything they do has the risk of making someone's life into a living hell. That middle ground has to start with an understanding that the theory that they learn in school doesn't stay pure theory in real life, once they become lawyers. The words that they parse can make the difference between saving lives and destroying them.


Nancy B. Rapoport is the Gordon & Silver, Ltd. Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas.


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Academic Commentary is JURIST's platform for legal academics, offering perspectives by law professors on national and international legal developments. JURIST Forum welcomes submissions (about 1000 words in length - no footnotes, please), inquiries and comments at academiccommentary@jurist.org

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