Ethical Issues Raised by the OLC Torture Memorandum

In the fall of 2001, the Bush administration was looking for a place to imprison and interrogate alleged al Qaeda members away from the prying eyes of other countries and insulated from the supervision of United States courts. The Defense Department believed that the Naval Base at Guantánamo Bay, Cuba might work, so it asked the Justice Department’s Office of Legal Counsel (OLC) whether federal courts would entertain habeas corpus petitions filed by prisoners at Guantánamo, or whether they would dismiss such petitions as beyond their jurisdiction. On December 28, 2001, OLC responded with a thorough and balanced analysis of how the federal courts were likely to resolve the jurisdictional question. The memorandum prepared by OLC explained the arguments against such jurisdiction, but it also explored possible strengths in the opposing position. The memorandum predicted that federal courts would not exercise jurisdiction but explained the risk of a contrary ruling. Acting in reliance on this memorandum, the government started imprisoning and interrogating alleged al Qaeda members at Guantánamo the following month, cognizant of the risk that a federal court might find habeas jurisdiction.

Lead Author

Kathleen Clark
Professor Kathleen Clark, a 2010–11 Israel Treiman Faculty Fellow, teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. Professor Clark co-authored a Washington Post op-ed about the Justice Department torture memo, and later expanded that analysis into Congressional testimony and a law review article. That article has been featured in two legal ethics casebooks and a public administration anthology, and was cited in a Justice Department Office of Professional Responsibility report about the torture memo. Professor Clark created and taught for 13 years a course on governmental ethics as part of the Congressional & Administrative Law Program. She also created a course on comparative whistleblowing, which she taught at Utrecht University. A member of the American Law Institute (ALI), she is an advisor to the ALI’s Project on Principles of Government Ethics, a consultant to the Administrative Conference of the United States, and past chair of the National Security Law Section of the Association of American Law Schools. Before joining the law faculty, she clerked for the Hon. Judge Harold H. Greene, U.S. District Court for the District of Columbia, and was counsel to the U.S. Senate Judiciary Committee, where she worked on issues of white collar crime.
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