MEMO ON TORTURE STOKES ETHICS-VERSUS-FAITH DEBATE - JAY BYBEE
The Salt Lake Tribune by Peggy Fletcher Stack, Pamela Manson.
Dan Burk doesn't see how anyone with a conscience could tolerate, let alone defend, the use of torture -- even in extreme cases.
But Burk, a law professor at the University of Minnesota, was especially incensed to discover that just such a defense was launched by a member of his own LDS faith.
Jay Bybee, a devout Mormon who in 2002 was head of the Justice Department's Office of Legal Counsel, signed an August memorandum that year that said certain interrogation techniques could be used legally as long as the pain involved was less than that accompanying "serious physical injury, such as organ failure, impairment of bodily function or even death."
If the intent is to gain information, not just to cause harm, the memo reasoned, these techniques fall outside the legal definition of torture forbidden by international law.
The controversial memo, since disavowed by the White House, has sparked a lively Internet debate among LDS lawyers about whether Bybee violated his professional and religious ethics while writing it.
Burk started the conversation last month when he posted a stinging critique on http://www.timesandseasons.org, which has frequent comments by lawyers who are members of The Church of Jesus Christ of Latter-day Saints.
"I cannot believe that the practice of torture is acceptable to anyone who claims to be a disciple of Jesus Christ," wrote Burk. "At what point does a Latter-Day Saint governmental official have, like Mormon of old, the moral obligation to resign his position rather than participate in the conduct of his superiors?"
Burk's incendiary comment produced more than 100 responses, with pro and con arguments built on everything from New Testament mandates and Book of Mormon stories to the philosophers Immanuel Kant and John Stuart Mill.
Fred Gedicks, a Brigham Young University law professor who has known Bybee for 30 years, doesn't necessarily agree with the memo's conclusions, but he believes the bloggers misunderstand Bybee's motives. The timing of the memo indicates it was aimed at dealings with al-Qaida in the aftermath of Sept. 11 and the Afghanistan war, he said.
The anti-torture comments mirror earlier discussions about the problem of unilateral disarmament, Gedicks says. "It's fine to talk about the teachings of the Savior about peace, but when the other side is not living those teachings, there are real risks by living them unilaterally."
He adds: "I don't think my answers about torture would have been the same as his, but the idea that the memo shouldn't have been written at all is not compartmentalization. It ignores the new reality." Nationally, lawyers have decried the memo as chillingly narrow. While acknowledging his exact assignment is unknown, critics assail Bybee for failing to include ethical, moral and even practical context.
Michael K. Young, George Washington University law professor who is the incoming president of the University of Utah, said he took such a broader approach when he was a deputy legal adviser in the State Department during the first Bush presidency. He not only told government officials what they could do legally, he said, but also told what they should do morally.
"You can often go beyond that and say that while technically one is prepared to do this, there are a whole lot of reasons you don't want to do this, some of them morally based," said Young, who is also LDS.
It is not unethical for a lawyer to ignore the religious or ethical implications when giving advice to clients, says Professor Michael Ariens of St. Mary's University School of Law in San Antonio, Texas. "The real question is, are you sacrificing something in the relationship by ignoring those values? Would advice be better by saying this decision has profound legal and moral consequences?"
For Mormon lawyers the memo is more than theory. It's personal.
Bybee, now a judge on the 9th U.S. Circuit Court of Appeals, earned his undergraduate and law degrees from LDS Church-owned Brigham Young University. He served a two-year mission for the church in Chile.
He's had a fascination with biblical laws, he told Meridian Magazine, an independent LDS online magazine.
"People in the Old Testament were absolutely devoted to the law of Moses and required exact obedience to it," he said. "While we should admire their zeal to follow the rule of law, we nevertheless have to recognize that without understanding the spirit or purpose of the law, there aren't enough rules in the world to make a person be good."
Bybee has declined to comment on the memo. Young says he doesn't pass judgment on Bybee's motives or arguments, but at a BYU conference last year suggested Mormon lawyers would be better off if they connected their professional and religious selves.
"It does matter that we are LDS and academics at the same time," he told a roomful of BYU lawyers in his keynote address.
And that is what many of the Mormon bloggers were looking for, too. They appealed to LDS scriptures to build their arguments.
There's Jesus' admonition that "inasmuch as ye have done it unto the least of these, my brethren, ye have done it unto me," Burk wrote to The Salt Lake Tribune.
The Book of Mormon, which Latter-day Saints believe is the record of an ancient civilization in the Americas, tells of the destruction wrought by "warfare and genocide," Burk wrote. "The record repeatedly warns against the human propensity to develop a taste for violence and atrocity."
Others argue worst-case scenarios. Suppose there is a ticking time bomb set to go off in an orphanage and troops capture the bomber. Wouldn't physical torture be worth it if you get information to abort the tragedy?
"Does the Gospel commit us to a particular ethical approach?" wrote attorney Nate Oman on the timesandseasons blog. "For example, torturing the guy with the information in the ticking-bomb case may well be morally justifiable if we are utilitarians. It is probably not morally justifiable if we are Kantians. Dan seems pretty confident that good Mormons must be Kantians. On the other hand, one can point to fairly utilitarian moral claims in scripture."
Kaimipono David Wenger, a New York City lawyer who regularly participates in the Mormon blog, found himself in the middle of the debate.
"I would personally be uncomfortable writing a memo on how the administration could legally justify torture of people, but I don't think it's against the tenets of our faith," Wenger told the Tribune. "One might believe that the value of ready access to torture-obtained intelligence outweighed the negative."
For Wenger, "it's something you would have to work out with God."
pstack@sltrib.com - pmanson@sltrib.com - Copyright 2004, The Salt Lake Tribune.