Laura Pomeranian is a lawyer specializing in immigration matters. One day she is visited by an old client, Solomon Tovarich, whose family Pomeranian has helped over the years. The following conversation takes place: "Laura," says Solomon, "my best friend Mischa's family is visiting from Ukraine. His brother and sister-in-law and their beautiful daughter Elena. And they say things are no better there. Sure, it's better for some than in the old days, but for Jews, it's even worse. Mischa's brother says it's too late for them, but Elena is twenty and wants to emigrate. But with the quotas filled, it's impossible. I was thinking, I'm a widower, my kids are grown, I got a good job, maybe I could marry Elena. She's a beautiful young lady, intelligent. She could stay here, go to college." antoi "You know, Sol, marrying a foreigner to avoid immigration quotas is a serious crime." 

 "I'm aware of that," replies Tovarich. "Why do you think I came to you?

Consider the following alternative responses that Pomeranian Tovarich. For purposes of this problem, assume the legal accuracy of the advice given. 

Scenario #1: "If this is what you really want, my advice to you is to court Elena birthday, and hers. Look for a new apartment together, and furnish it. Even write every minute while she's here on her visitor's visa. Spend holidays with her, your love letters. And she should do the same. She'll have to be convincing about why a young woman like her is falling in love with an old goat like you." "Is all that necessary?" "Only if you want immigration to believe that this is a marriage made of love, not quotas." Scenario #2: "Well, Sol, I'll go through it piece by piece. The key issue is whether your marriage to Elena is one of convenience. That is, are you marrying her for real, or to get her a legal 'status adjustment' that would let her stay in the States? Marrying her so she can live here would be defrauding the Immigration Service." "So what will Immigration do?" asks Tovarich. "Well," says Pomeranian, "immigration applications are now investigated by the USCIS, which is part of Homeland Security. They can't investigate every marriage, and you're not in the ethnic groups they scrutinize most closely, but they do check out a sizable random sample. They do investigate a much higher sample of people who fit their sham marriage 'profile.' I guarantee that with your age difference and the full immigration quota, you fit right into that profile." "Of course, whether your marriage is real or a sham is a question of fact. The USCIS can only look at how the two of you act and what you say to determine the legitimacy of your marriage. For example, if you can prove you spent months in each other's company before you got married, or exchanged long letters of devotion and affection, or were always together on important occasions, that would all tend to show that your marriage is for real." "I'll guarantee you something else: If they do investigate, you'll each be viewed separately, and they'll ask you where you were on various dates you might be expected to remember-July 4, Thanksgiving, your birthday, hers. They'll ask you where you've been in the week just before the interview. They'll ask what kind of toothpaste and soap she uses. If your answers don't match, they'll use it against you and probably see it as fraud. But if it's clear by your answers that you've really spent the time together, it will be very strong evidentiary support for a marriage made in 7 heaven." "Laura, that's very helpful. Every day I'm more in love." 

Questions 

1. Is the first scenario unethical? Ethically, does it differ from the second?

 2. Suppose Tovarich decides to go forward with his plan to marry Elena, and asks Pomeranian for her help in filling out the necessary documents for Elena's legal status. May Laura help him? What else, if anything, should Pomeranian consider before giving herself to this effort? 

3. Suppose the USCIS challenges Tovarich's marriage and the issue turns on his state of mind as to the reason for the marriage. Could Laura represent Solomon before the USCIS? Does it matter whether she prepared the papers originally? Finally, which do you find easier, preparing the documents or defending the couple after- wards? Why? 

 

Problem II 

Consider Professor Newman's article in section 1 below, and the discussion of the "torture memo" in section 2 in addressing these questions. 

1. How similar is the advice in Newman's tax scenario to the advice government De macht let lawyers gave in the torture memo? 

2. Do lawyers have an obligation to advise clients about the moral implications of their actions? abolitans 3. Do government lawyers have a higher duty than private counsel to give disin- terested advice?

 

2. Advising on Torture²

 In the days after September 11, 2001, Americans captured a severely wounded Abu Zubaydah, an important Osama bin Laden lieutenant. By the Spring of 2002, Zubay- dah, still gravely wounded, was taken to a safe house in Thailand by a CIA security team. There, after he was sufficiently recovered, Zubaydah was at first interrogated by FBI agents using standard interviewing techniques. The FBI tried to convince him they knew the details of his participation in terror by showing him a box of blank audiotapes that they said, falsely, contained recordings of his phone calls. While Zubaydah soon began providing information, the CIA agents present believed that he was withholding far more than he told, and took over the inter- rogation. With the CIA in charge, Zubaydah, still weak, was subjected to coercive interrogation techniques including being stripped, held in an icy-cold room with- out bed or blankets, sometimes until he turned blue, and blasted with the earsplit- ting sounds of loud heavy-metal rockers. The FBI objected to both the legality and the utility and of these techniques, but its voice was drowned out. The NEW YORK TIMES reported that three former CIA officials said that their "techniques had been drawn up on the basis of legal guidance from the Justice Department, but were not yet supported by a formal legal opinion." Accordingly

then CIA Director George Tenet requested a legal memo to protect the interroga- act and to ensure-or at least claim-compliance with the United Nations' Con- tors and their superiors from any future prosecution under the 1994 anti-torture vention Against Torture. The Justice Department's Office of Legal Counsel (OLC) was assigned the task of writing the memo. The head of OLC, Jay Bybee, now a federal appeals judge, even- tually signed the August 1, 2002 "torture memo," but the memo was a group effort. OLC staff, particularly John Yoo, now returned to his University of California law professorship, drafted the memo, while then White House Counsel Alberto Gonza- les, his staff, then Attorney General John Ashcroft's staff, and even Vice President Dick Cheney's legal counsel gave input on drafts. Among other things, the memo stated that treatment of prisoners such as Zubaydah was not torture unless it was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Although the Bush administration disavowed the Bybee memo in mid-2004, as late as September 9, 2006, President Bush maintained that the Zubaydah interro- gation was legal: "These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations," Mr. Bush said. Moreover, he said, "the Department of Justice reviewed the authorized methods extensively and determined them to be lawful." Was the Bybee torture memo a matter of lawyers giving the clients-here, the CIA and, indeed, the President-the advice they wanted to hear, to the denigration of reasonable interpretations of law? Did the memo involve "willful blindness" to the facts, or to the law governing torture? Or were the memos honest advice within the bounds of colorable claims of law? In 2004, NEW YORK TIMES legal affairs reporter Adam Liptak interviewed several former high-ranking government lawyers about the "torture memo" to test "the ethical and moral limits of what lawyers can and should do in advising their clients." "When a government is. . . faced with options," Harvard Professor Charles Fried, a former solicitor general under Reagan, told Liptak, "surely one of the questions it asks only one of them is, what does the law require? Another question is, is it effective? Another is, is it moral? Those are not the same questions." The lawyer, said Fried, should be answering the first question. Walter Dellinger, who was in charge of the OLC under Clinton, told Liptak that the OLC's job traditionally had been to provide disinterested advice. And Philip Lac- Novara, who served in the Nixon administration and was also a Watergate prosecutor, told Liptak that "If you set loose very smart and very energetic lawyers and tell them their task is to justify the unjustifiable, they will do it," he said. Obviously, the torture memos raise a host of important questions. One, of course, is whether the authors may slant their opinion to what the recipient wants to hear, or whether they must provide the "disinterested" advice that Walter Dellinger advocated. Another is whether government lawyers should take into account that on some level they represent the public. The Liptak article quoting Dellinger references FDR's Attorney General, Francis Biddle, who opposed the internment of American citizens of Japanese ancestry during World War II, though Biddle was overruled. In late 1973, with the Watergate investigation exploding around President Nixon, both Attorney General Elliot Richardson and Deputy AG William D. Ruckelshaus refused Nixon's order to fire special prosecutor Archibald Cox and were as a result themselves summarily fired. But in this situation, may the OLC take into account- as Alberto Gonzales and John Yoo have argued of national security and the war on terrorism?