17 Jan John Yoo, Unfazed
In case you missed it, Yoo had this op-ed in yesterday’s Philadelphia Inquirer. The Padilla claim seems no more than a piece of lint on his suit, from the tone of the piece, which would seem to defeat up front the largely symbolic (declaratory) objective of the action.
Yoo appears never to have let his guard down on the righteousness of his service, and this piece is firmly in that vein (and at some level it’s probably served him well). Those who question Padilla’s detention as an enemy combatant are simply “wrong”. Worse, the lawfare of which this is an example will make the nation more susceptible to another Pearl Harbor or 9/11. And then there is the question of how the great doers of history would have fared in the context of a similar legal culture:
Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief).
But wasn’t it the case that officials were more exposed to liability in the days before judicially crafted immunity doctrines? See for instance Little v. Barreme, in which a ship commander was held personally liable for violating a statute, that of course in the days before litigation liability insurance. And leaving aside the questionable suggested equivalence between the Emancipation Proclamation and this Administration’s use of executive power, I have to think Lincoln would have done exactly as he did, because he was a leader. This crowd has none other than themselves to blame for law’s comeback as a constraint on executive power, in any case.
“And leaving aside the questionable suggested equivalence between the Emancipation Proclamation and this Administration’s use of executive power, I have to think Lincoln would have done exactly as he did, because he was a leader.” Isn’t Yoo’s point that expansive claims of executive power are the norm in times of conflict, civil or international, and that such power is not tradionally checked by civil law suits (esp. by convicted terrorists). Lincoln of course “obeyed all laws but one” in suspending habeas, and probably pushed exectuive power further than any other U.S. president. Yoo’s point, which he could have done a better job stating, is probably this — the attacks on me are not a function of some structural argument about separation of power. This isn’t a legal argument over who gets power in times of war. If it was, then the same arguments thrown my way would have to be leveled against Lincoln because, look, we both favor deference to executive power in times of conflict. Rather, these cirtisisms are differences in policy — i.e., what is done with exectuive power — and are better resolved through the political process. If you want different choices, vote for somebody else …
Professor Yoo apparently is perfectly convinced that he has done nothing wrong, legally, ethically or politically. Whether or not that is true I will leave for another discussion. As to whether or not lawyers can or should be held accountable at law for advice, however, I encourage you to review the blog entries at Balkinization by David Luban and by Scott Horton, to which Professor Heller provided links in his blog entry on this site just prior to this one. Says Luban: ” . . . it is worth noting that ethics standards forbid lawyers from from counseling or assisting clients in conduct the lawyer knows is illegal. Of course, John Yoo claims that he “knew” nothing of the sort, and continues to defend not only the good faith, but the legal validity of his widely-castigated opinions. How much to credit assertions of good faith would be a task for a fact-finder.) 2. Government lawyers too? Well, yes. To take the best-known precedent, after World War II the United States prosecuted German government lawyers in the second round of Nuremberg trials. Scott Horton has . . . .elaborated in his essay “Through a Mirror Darkly: Applying the Geneva Conventions to… Read more »
The first charge in the United States v. Altstoetter case, which was the conspiracy to commit war crimes, was dismissed on jurisdictional grounds.
The second and third charges, war crimes and crimes against humanity, are rather vague. As the accused were not charged with each incident separately, it seems a little hard to argue that they were convicted merely for supplying advice, when they were accused of actually ordering the crimes themselves.
I really don’t consider it a strong precedent for bad legal advice itself being a war crime.
And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the thoughts that these rules were “quaint” and “obsolete,” they reflected the “outmoded notions of chivalric warfare.” This was cited as an aggravating factor justifying a sentence of death against Keitel.”
Keitel signed the Commissar Order, and other orders involving the execution of the captured. That alone was sufficient for his conviction and execution.
What else can a person who counseled torture say?
Best,
Ben
I agree with NewStream and disagree with Kaufman that this is now essentially a political question. Yoo acts confidently because he knows he has little to fear from any present administration–Republican or Democrat. He will not be prosecuted and he has little to fear in any civil suit because of the political considerations of the case–he says he was acting to defend the Republic, so he’s effectively untouchable. For now. I agree with Kaufman and disagree with NewStream that, as a normative matter, the issue of Yoo’s culpability and punishment should not be a political question, but a legal one. And Yoo will have much to worry about from other governments more invested in international law than ours, and from future generations of Americans who are not as likely to give a free pass to torturers and their enablers like Yoo as our current leaders are (both parties). So he shouldn’t rest too easy. And the idea that any U.S. government official or judge would give precedential value in a case like Yoo’s to a case we prosecuted against Nazis is ludicrous. It is a purely political issue, although it should not be and may not be forever.