Starting to notice but not quite there.


At The Nation, Professor Stephen Gillers is correct when he writes in The Torture Memo that:

The press tends to overlook the lawyers when scandal breaks, focusing instead on their clients. That’s understandable, but in public and commercial life no serious move is possible (no corporate maneuver, no new financial instrument, no war, no severe interrogation tactic) without legal approval. Even if the advice proves wrong, the client, if sued or indicted, can claim reliance on counsel.

When lawyers in private practice mess up, they face serious jeopardy. They can be fired, sued for malpractice, disbarred or prosecuted. Yoo and Bybee face no such risks. The President won’t protest. He got what he wanted. And while a state disciplinary body can investigate, that is unlikely without Justice Department help.

I disagree that the involvement of the Department of Justice is required to instigate an investigation of Mr. Yoo, Mr. Bybee or any other unethical attorney in the service of the federal government. As I note here , anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C. Mr. Gillers continues:

In his book The Terror Presidency, [Bybee’s successor, Jack] Goldsmith, now a Harvard law professor, writes that the torture memos had “no foundation” in any “source of law” and rested on “one-sided legal arguments.”

* * *

How could two really smart guys authorize torture using “one-sided legal arguments” that have “no foundation” in law? How could they be guilty of a “stunning failure of lawyerly craft”? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President’s authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

* * *

So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not “consistent with the professional standards that apply to Department of Justice attorneys.” [H. Marshall] Jarrett[, counsel for the Justice Department’s Office of Professional Responsibility,] must hold the lawyers accountable if he means to restore OLC’s reputation and vindicate the rule of law.

I agree with Mr. Gillers’ characterization of these attorney’s actions but must again strongly disagree that it is Mr. Jarrett that must hold anybody accountable. To repeat myself: anybody, from any state, can file an ethics complaint against any attorney practicing anywhere in the 50 states and Washington, D.C.

In his response at Balkinization to Boalt (Cal Berkeley) School of Law Dean Chris Edleyn’s defense of John Yoo, Scott Horton explains in more detail why John Yoo should be held to account :

[T]he facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

Dean Edley then states that the ethical accountability and legal liability of the legal advisor cannot be compared to those of the policy maker. This statement rests on a false understanding of the facts. But it also reflects a misconception of the established law. Indeed, Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is “yes.” The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance.

This principle was established by the United States in one of the most dramatic of the post-World War II proceedings, United States v. Altstoetter, the “lawyers’ case.” Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo. There are three major principles relevant to John Yoo’s case that appear from the charge, accepted by the Tribunal. First, the case dealt with persons under detention in wartime (not POWs, in fact most of the cases in question addressed persons not entitled to POW or comparable protections). Second, it had to be reasonably foreseeable that the advice dispensed would result in serious physical or mental harm or death to a number of the persons under detention. Third, the advice given was erroneous. In fact several of the lawyers in Altstoetter were able to articulate far better defenses for their erroneous legal advice that John Yoo had, but the standard did not require it to be “outrageously” false, just incorrect.

Each of these criteria is satisfied with respect to Yoo’s advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. * * *

However, my point here is not to make the prosecutor’s case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability . * * * (Emphasis supplied).

Also at Balkinization, Professor John Balkin asks whether John Yoo and Jay Bybee violated the canons of professional ethics. In drawing his conclusion, Professor Balkin considered, among others, the Gillers and Horton arguments that I highlighted above, and wrote:

My own conclusion is that Yoo and Bybee did violate their professional obligations to the President as constitutional actor, and to the country as a whole. The reason is a combination of their outrageous theory of presidential dictatorship and their all too eager assistance in what appears to be a conspiracy to commit war crimes. But I do not pretend that the question is at all an easy one.

Note that even if I am right that Yoo violated the canons of professional ethics, he has not been sanctioned by any court or professional organization, much less convicted of any crime by a domestic court or international tribunal. This is important to keep in mind in the debate over whether the University of California should discipline or investigate him.

While I also do not pretend that the question of whether these attorneys violated the canons of professional ethics is an easy one, I am confident that the answer to the question is ultimately yes. And if the answer is yes, then the question becomes what can you and I do to hold these attorneys accountable for their actions in addition to lobbying Congress, writing blog posts and comments, praying and waiting?

Consider first this from Mr. Horton in his response to Dean Edley:

A final aspect of Dean Edley’s memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. * * *

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer’s first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning — He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. * * * (Emphasis supplied).

And also this from Mr. Horton from April 3, 2008:

It’s also time for the organized bar to act decisively. So far bar organizations have denounced the torture memoranda and issued learned reports and articles. But I’m still haunted by a question a student put to me following a presentation I made at Columbia University on Tuesday evening. “If the bar is so serious about this,” the student said, “then explain to me how it’s possible that John Yoo and his confederates haven’t been disbarred.” I started to answer about the complexity of the disbarrment process, but I stopped. The student was right. If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes.

* * *

Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency. (Emphasis supplied.)

I noted in response to this post then, and reiterate today, that appealing to this Congress is insufficient and that it is now for direct action by you, the citizen/activist. Each of you can file a grievance against each and every one of these attorneys whether you live in the same or a different state and whether you are personally involved in the matter or are just an interested citizen. By doing so, you can force these bar associations to investigate these matters. Take action: file a grievance.

And remember, it’s not just Yoo and Bybee. There’s Alberto Gonzales, Harriet E. Miers, Kyle D. Sampson, Senator Lisa Murkowski, Judge Mark Everett Fuller and many others.

E.M.

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7 Responses

  1. […] Perhaps Alex Jones and the NLG should file grievances. No Comments so far Leave a comment RSS feed for comments on this post. TrackBack URI Leave a comment Line and paragraph breaks automatic, e-mail address never displayed, HTML allowed: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong> […]

  2. The platform we use over there doesn’t seem to do trackbacks, but I’ve got a post on Youngstown and the timing of the 2003 memo at Left in Alabama.

    http://www.leftinalabama.com/showDiary.do?diaryId=1578

  3. Hey, E.M. I found this today in case you haven’t read it yet:

    http://www.informationclearinghouse.info/article19766.htm

  4. Hi, again, E.M. Have you read Rove’s letter to Abrams yet?

    http://corner.nationalreview.com/post/?q=YmY4YTBmMDg3NDljYWY0NTViNmMxNzgwOGUzZTk1NGI=

  5. Hey Mel,

    I just finished reading it tonight. As others have noted, I agree that he’s clearly fishing for any information he can find before he has to testify under oath.

    Thanks for the links.

    E.M.

  6. I’m reading the House Judiciary report on Political prosecutions right now (see link below) and already Conyers says, “There is extensive evidence that the prosecution of former Governor Don Siegelman was directed or promoted by Washington officials, likely including former White House Deputy Chief of Staff and Advisor to the President Karl Rove, and that political considerations influenced the design to bring charges.”

    http://judiciary.house.gov/Media/PDFS/SelProsReport080417.pdf

  7. Thanks. I’ve seen some excerpts on this. So far, none of what I’ve seen from the report is anything new. The real news seems to be that those with the power and authority to actually do something about this mess are finally seeing what’s happening.

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