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 ‘A New Kind of Warfare’,” in Karen J. Greenberg, ed., The Torture Debate in America (Cambridge UP 2006). The lawyers wrote memos and orders stripping Geneva Convention protections from Russian troops on the Eastern Front, and legitimizing the “night and fog” disappearance of political suspects. Two government lawyers, Rudolf Lehmann, Chief of the Legal Department of the High Command of the German Armed Forces, and Franz Schlegelberger, Acting Reich Minister of Justice, were convicted for their roles in writing the Night and Fog decree and orders removing captives from court-martial jurisdiction. (Lehmann’s case is reported in the High Command Case, U.S. v. Wilhem von Leeb et al., Judgment, XI Trials of War Criminals before the Nuernberg Military Tribunals 690-95, while Schlegelberger’s is in the better-known Justice Case.)
This may sound like ancient history, but it seems significant that in the past the U.S. threw the book at government lawyers for conduct that is awfully close to the allegations in this lawsuit.”
Scott Horton states:
“In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said “the basic building blocks of civilization”? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?
These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.
For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.
. . . .
The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, “not farmers or factory workers,” they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were “recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.” That is to say, they were customary international law. Further, the United States charged, this decree “would probably cause the death of human beings,” grounding a charge of homicidal intent.
After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years’ imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.
. . . .
Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. 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.”
Another article worth a look at is Ethical Issues Raised by the OLC Torture Memorandum by Kathleen Clark in JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 1:455).
She notes
“The Bybee Memorandum purported to provide objective legal advice to government decision makers. Nevertheless, its assertions about the state of the law are so inaccurate that they seem to be arguments about what the
authors (or the intended recipients) wanted the law to be rather than assessments of what the law actually is.”
and
“The substantive inaccuracies in the Bybee Memorandum are so serious that they implicate the legal ethics obligations of its authors.”
. . . .
In advising a client, the lawyer’s role is not simply
to spin out creative legal arguments. It is to offer her assessment of the law as objectively as possible. The lawyer must not simply tell the client what the
client wants to hear, but instead must tell the client her best assessment of what the law requires or allows. Similarly, Rule 1.4(b) requires a lawyer to
explain the law adequately to her client, so that the client can make informed decisions about the representation.”
. . . .
The Bybee Memorandum purports to offer legal advice. Its authors, Jay Bybee and John Yoo, had an obligation to be candid with their client, the executive branch. The constituent who requested the Bybee Memorandum,
then White House Counsel Alberto Gonzales, may have wanted a particular answer to his questions about the torture statute. But the OLC lawyers had a professional obligation to give accurate legal advice to their client, whether or not the client’s constituent wanted to hear it. Based on the available facts, it appears that Bybee and Yoo failed to give candid legal advice, violating D.C.
Rule 2.1, and that they failed to inform their client about the state of the law of torture, violating D.C. Rule 1.4. Because of the secrecy surrounding the Bush administration’s torture policy, we do not know exactly what techniques have been used against prisoners, or whether CIA interrogators or managers were informed of the
Bybee Memorandum. With Congress controlled by the President’s party and no Independent Counsel statute in place, it is unclear how or when the facts
surrounding the torture policy will be revealed.57
If bar disciplinary authorities investigate Yoo and Bybee, these two attorneys will have an opportunity to explain or defend their actions. In that
setting, they might assert that the ethical obligations of candor and adequately informing their client did not apply because the Bybee Memorandum was never intended as legal advice in the traditional sense. In fact, David Luban and other scholars have speculated that this Bybee Memorandum was not intended as legal advice at all, but instead as an immunizing document, to ensure that CIA officials who engage in torture would not be prosecuted for that conduct.”
. . .
But if the authors of the Bybee Memorandum intended to immunize torturers in this way, they might have violated a different ethical rule, D.C. Rule 1.2(e), which prohibits an attorney from assisting a client’s criminal
conduct.59 So even if their memorandum successfully immunizes torturers from criminal prosecution, it might jeopardize its authors’ licenses to practice
law.
. . . .
Not all government lawyers accepted the patently inaccurate claims of the Bybee Memorandum. Career military lawyers who were involved in developing Defense Department interrogation policy objected to the Bybee
Memorandum, and they went up the chain of command to register their objections.70 The contrast between the career military lawyers, who objected to the Bybee Memorandum, and most of the politically appointed lawyers, who championed it, is quite striking, and it is worthy of more detailed study as more facts become public.”
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.