01 May 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.
As I posted over at Balkinization, I would suggest you read Jordan Paust, Beyond the Law, or invite him to post here from the University of Houston as he would significantly differ with Kevin and Marty’s analysis. I would also say that the point being made here does not go far enough. “The Tribunal rejected that argument, concluding that the letter was not, in fact, simply a legal opinion: This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice… it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking (1095).” The role of an OLC opinion in our government as the statement of law binding on the Executive is a significant aspect of the Yoo case that makes this not merely an opinion up or an opinion down but an operational document (an act) to further the conspiracy to torture.… Read more »
Kevin, First off, let me say that I completely agree with your analysis of the Justice case. It is certainly true that none of the defendants there was convicted for giving legal advice. My question to you is this – isn’t it rather clear, under contemporary international criminal law, that a lawyer could indeed be convicted for giving legal advice, if the prosecution charges joint criminal enterprise? In other words, if a prosecutor would be able to prove that there was a joint criminal enterprise with the common criminal purpose of torturing suspected terrorists for information, and that Yoo substantially contributed to this joint criminal enterprise by writing official legal opinions which enabled torture while being aware that they would be used for such purposes, that would make Yoo culpable not for some separate war crime of writing criminal legal opinions, but for the actual crimes of torture perpetrated by somebody else. So, a criminal conviction would require more than just proving that the legal advice given by Yoo was manifestly unreasonable. It would also require proving the elements of JCE. For my part, at least, JCE is a rather apt description of what has actually happened, and I don’t… Read more »
If Kissinger has never been brought to the dock for engaging in a joint criminal enterprise it seems unlkely that either Bybee or Yoo will be. In fact, if history is any guide, we might someday see Bybee or Yoo sit on the Supreme Court! Recall that it was William Rehnquist who, as an assistant attorney general under Richard Nixon, “came up with the argument that the law mandated presidents to deploy troops ‘in conflict with foreign powers at their own initiative'” (Stanley Kurnow). It’s clear that Rehnquist’s career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of both Yoo’s and Bybee’s infamous Memos, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia. In fact there’s a deep connection between the two administrations in this regard, as Bruce Shapiro made clear several years ago: ‘The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed… Read more »
We should always stress in going into this that the point of this exercise is not to compare John Yoo and his colleagues with the Nazis, but rather to distill the operating international law principles governing lawyers who dispense advice to governments in a war setting. (It’s worth a passing note that the Justice Case distinguishes itself from several other Nuremberg cases in that many of the defendants were career justice employees who were late-comers to the party, i.e., became party members after the Machtergreifung, when party membership was obligatory for those holding higher government posts). We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described — namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode. Aside from the unwarranted flattery, this is a very good post– with good criticism — that does a solid job of summarizing some important details of the Altstoetter case. It’s regretable that much of the material from the case is difficult to access and research, and that… Read more »
Incidentally, I’d like to reiterate Brian Tamanaha’s question (at Balkinization): “John Yoo is getting all the heat for the Torture Memo. But Jay Bybee was the boss. The memo was issued in his name, and he signed it. So why is Yoo up against the bullseye, while Bybee mostly gets a free pass?”
On the last post, Bybee is not getting a free pass from me.
Best,
Ben
Marko,
I’d write a lengthy response, but one is not necessary — I completely agree with you. I don’t find the idea that an international tribunal would convict Yoo problematic at all, for precisely the reasons you mention.
Professor Heller, Thanks to you and Marty Lederman for your posts (as well as for some interesting comments by Scott Horton, David Luban and others on the Balkinization thread). After reading your book proposal a while back on Opinio Juris, I was really surprised that you hadn’t weighed in with a view on United States v. Alstoetter and so I am glad that you have. I want to say in advance that you have one purchaser for your book (and I want mine signed to “non liquet”!) That said, I had a question, if you will indulge me. You write: the Tribunal’s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact. Marty seizes on this to suggest that: Yoo, Addington and their crew did believe (i) that their ultimate view about the preclusive constitutional prerogatives of the Commander in Chief is the correct reading of the Constitution (albeit one that others are unlikely to embrace); and, mostly for that reason, (ii) that it is appropriate to apply numerous… Read more »
Coming from contract law – even if a subjective test is held that subjective view has to be held in good faith. And the question I am seeing in this post is whether the process of cutting out dissenting views, firing Dan Levin after the first revised torture memo and before the second one, the quiet trips suggest to me the careful putting together of a fraud – not good faith analysis.
I have heard it said that as lawyers are use to the attorney client privilege they expect persons to tell them the truth and for themselves to proceed on that truth to defend their client.
Because of this, one difficulty for lawyers may be to imagine people lying to them. The Clinton Monica Lewinsky example of how people could be so credulous to Clinton’s denials is an example.
Having been in the corporate world for a while, it is perfectly foreseeacble to me that people are saying all kinds of things that they want us to hear to make us think that there is nothing here. That is their interest in not being prosecuted.
Best,
Ben
Non Liquet, Thanks for the kinds words. I will happily sign your book (especially because that means I will have finished it). With regard to your question, I believe that this is one of the few areas in which the law does require subjective knowledge of illegality. The judgment in the Justice Case does not say so explicitly, but the Tribunal pointed out again and again that the defendants knew their policies violated international law, so I think it’s a reasonable inference. I would also argue that international law continues to require actual knowledge of illegality. Element 1 of the Rome Statute’s war crime of denying a fair trial (Art. 8(2)(a)(vi)), for example, provides that “The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949.” The default intent and knowledge requirement in Article 30 applies to that element, which means that the perpetrator must have known that the trial did not include all of the guarantees defined in the Geneva Conventions and intended to deprive the defendant of the non-included guarantees. A mistake regarding those guarantees thus negatives the… Read more »