John Yoo and the Justice Case — Post at Balkinization
Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:
Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:
Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.
I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.
I hope readers will check out the entire post, along with Marty’s excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.