Employment of Kyle D. Sampson reflects poorly on Hunton & Williams, LLP, No.3

Updated March 10, 2009 to reflect Mr. Sampson’s leave of absence from Hunton & Williams.

Cross-posted at the Oxdown Gazette, Firedoglake‘s new diary blog.

My third e-mail to Ms. Field:

Andrea Bear Field
DC Office Managing Partner
Hunton & Williams

cc: Kyle D. Sampson , Partner
Hunton & Williams

Dear Ms. Field,

On behalf of The Grievance Project, I would appreciate Hunton & Williams‘s response to the following items:

1. The most recent United States Department of Justice Office of Professional Responsibility and Office of the Inspector General report, An Investigation into the Removal of Nine U.S. Attorneys in 2006, which describes* additional allegations of unethical conduct by Hunton & Williams partner Kyle D. Sampson.

Professor Marty Lederman succinctly summarizes this matter at Balkinization:

The basic thrust of the Report, as I understand it, is that Kyle Sampson was acting in cahoots with the White House Counsel’s Office to fire disfavored U.S. Attorneys — at least some for possibly impermissible reasons — and that AG Gonzales and others at DOJ therefore left the entire project up to Sampson, stepping in merely to rubberstamp whatever decisions he reached in accord with the Counsel’s Office.

Is this type of conduct typical at Hunton & Williams? If not, why does Hunton & Williams continue to condone and encourage this type of conduct through its partnership with Mr. Sampson?

2. The appointment of Nora Dannehy as Special Prosecutor to review this matter, including your partner’s apparently central involvement in this scandal.

Update: The Wall Street Journal’s Dan Slater has published a profile of Ms. Dannehy. (h/t emptywheel)

3. Like the previous report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, this most recent report again confirms my opinion that Mr. Sampson committed numerous violations of the rules of professional conduct of both Utah and D.C that raise a substantial question as to his honesty, trustworthiness and fitness to practice law. Has Hunton & Williams reviewed whether Mr. Sampson’s conduct violated the Utah and D.C. Rules of Professional Conduct? If so, what was the conclusion of that review? If not, why not?

Thank you for your attention to this matter.

E.M./The Grievance Project

*Section C of the DOJ OPR/OIG report:

As discussed above, Sampson was the person most responsible for creating the removal plan, selecting the U.S. Attorneys to be removed, and implementing the plan. Yet, after the controversy over the removals erupted, Sampson attempted to downplay his role, describing himself as the “aggregator” and denying responsibility for placing several of the U.S. Attorneys on the list.

We concluded that from start to finish Sampson mishandled the removal process. And, as discussed above, he inappropriately advocated bypassing the Senate confirmation process for replacing U.S. Attorneys through a strategy of “gum[ming] this to death” and “run[ning] out the clock” while appearing to act in good faith.

We were also troubled by Sampson’s claims that he did not recall the reasons for many of the removals or who had recommended that certain U.S. Attorneys be removed. For example, while Sampson said he did not place Iglesias on the list at the request of the White House, his recollection on this issue was varying and vague. We question why Sampson could not recall the precise reason why he placed Iglesias on the removal list, given the relatively short passage of time since the incident, and the fact that Iglesias’s name alone was added, for the first time, to the November 2006 list. Moreover, other misleading after-the-fact explanations for why Iglesias was placed on the list caused us to further doubt the candor of Sampson’s explanations. In the end, we question whether Sampson provided us the full story about Iglesias’s placement on the list, as well as the reasons for other U.S. Attorney removals.

As discussed in the sections that follow, we also concluded that Sampson made various misleading statements about the U.S. Attorney removals to the White House, Congress, and other Department officials.

1. Misleading Statements to the White House

Sampson’s misleading statements about the U.S. Attorney removals began as the selection process was unfolding. He misrepresented to the White House how the selections occurred. In an e-mail to Harriet Miers in January 2006 forwarding a list of names to the White House, Sampson wrote, “I list
these folks based on my review” of the EARS evaluations, and “my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and the Criminal Division.” Sampson thus created the general impression that the EARS evaluations and his “interviews” of senior Department officials, including officials in the Criminal Division, formed the basis of his identification of specific U.S. Attorneys for removal.

However, Sampson admitted to us that he did not remember speaking to anyone in the Criminal Division about the performance of U.S. Attorneys, except “only in the most general terms.” He also acknowledged that he never reviewed any EARS evaluations. He told us that it would have been better if he had stated in the e-mail to Miers that it was based on his understanding of somebody else’s understanding of the reviews of the offices. [Footnote] 202[.] We believe that Sampson’s misleading statements to Miers gave the impression that the Department had engaged in a far more systematic and structured evaluation process to determine which U.S. Attorneys should be removed.

2. Misleading Statements to Congress

Sampson similarly misled congressional staff in his January 12, 2007, briefing that the removals were based on EARS evaluations. At this meeting, Sampson and Acting Assistant Attorney General for the Office of Legislative Affairs Richard Hertling briefed staff for Senators Patrick Leahy and Dianne Feinstein about the removals. Sampson told the Senators’ staffs that the Department had been engaged in a process to identify underperforming U.S. Attorneys and that the process included a review of the EARS evaluations. The two staff members for the Senators told us that Sampson initially explained that the terminations were based on the EARS evaluations, but backtracked when Feinstein’s counsel pressed him for copies. According to both staff members, Sampson then explained that some of the removals were based on EARS evaluations, and some on other factors such as caseloads and responsiveness to Department policy initiatives.

According to Hertling, who said he knew little about the controversy at the time, Sampson attempted to impress upon the congressional staff that the removals were the result of a process the Department undertook to identify U.S. Attorneys who were the “weakest performers,” and that the process included a review of EARS evaluations. Hertling told us that one of the things that stuck in his mind was Sampson’s “specific reference” to EARS evaluations as a basis for identifying these particular U.S. Attorneys for termination.

However, Sampson claimed to us that he mentioned the EARS evaluations only in connection with Ryan’s removal. He said that he doubted he would have suggested that the other removals were based on the EARS evaluations because “that wouldn’t have been accurate.” Yet, based upon the recollection of the other witnesses at the briefing, including Hertling, we believe that Sampson misled the congressional staff that EARS evaluations played a more significant role in the Department’s decision-making process than they actually did.

Second, Sampson included misleading statements in the Department’s response to a February 8, 2007, letter from several Senators asking for information about the circumstances of Cummins’s resignation and Griffin’s appointment. Sampson, who drafted the response and circulated it in the Department and the White House for comment, had the final sign-off on the language in the response.

The response, which was sent on February 23, 2007, contained three misleading statements. The first was the statement that “it was well-known, as early as December 2004, that Mr. Cummins intended to leave . . . .” As we noted in Chapter Five, we found evidence that in drafting the response Sampson discovered a small news item in a free weekly Arkansas tabloid reporting that Cummins might begin exploring career options before the expiration of President Bush’s second term. However, Cummins told us he did not intend to resign at that time and was not looking for other employment. We also found no evidence that anyone at the Department was aware of the article until February 2007.

The second misleading statement in the Department’s response was that “the decision to have Mr. Griffin replace Mr. Cummins was first contemplated in spring or summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was made on or about December 15 . . .” This statement is directly contradicted by the January 9, 2006, e-mail Sampson sent to Miers in which Griffin is listed as a replacement for Cummins. The second part of the statement, that the final decision to appoint Griffin was made around December 15, is also misleading. As noted in Chapter Five, Sampson informed Goodling on August 18, 2006, that the Attorney General would appoint Griffin Interim U.S. Attorney following Griffin’s return to the Department.

The third misleading statement in the Department’s response was that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.” This statement is contradicted by Sampson’s e-mail on December 19, 2006, to Associate White House Counsel Christopher Oprison in which Sampson wrote, “I’m not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.” While Sampson later explained this e-mail by stating that he “assumed” but did not know that Rove was involved in the decision to appoint Griffin, we found this explanation unpersuasive and belied by the evidence.

3. Misleading Department Officials

Sampson also misled Department officials and allowed them to mislead others about several aspects of the U.S. Attorney removals.

First, in mid-December 2006 after media reports began questioning the circumstances of Griffin’s appointment, Sampson drafted talking points for the Department’s Office of Public Affairs to use to respond to media inquiries. In these talking points, Sampson wrote that “Griffin was appointed Interim U.S. Attorney because of the timing of Cummins’s resignation.”

In fact, as Sampson knew, Cummins had been removed so that Griffin could take his place. The Department’s talking points left the misleading impression that Griffin was appointed as Interim U.S. Attorney because of the unexpected timing of Cummins’s resignation, when in fact Cummins was told to resign to create a position for Griffin.

Second and more important, Sampson’s failure to disclose what he knew about the White House’s involvement in the removals caused McNulty and Principal Associate Deputy Attorney General William Moschella to provide inaccurate testimony to Congress. Both McNulty and Moschella testified that based on what they knew at the time, the White House was not involved in the removals until October 2006 and at that point became involved only to sign off on the process.

Sampson was present at staff preparation sessions before both McNulty’s and Moschella’s congressional testimony where the group discussed what they should say in their testimony. Several other participants told us that the question about the White House’s involvement was raised during at least one of McNulty’s preparation sessions, and McNulty indicated that he would tell Congress that the White House was involved to sign off on the process because U.S. Attorneys are Presidential appointments. This was a misleading statement about the extent and timing of the White House’s role, which Sampson knew. However, Sampson did not correct McNulty’s mistaken belief or inform him of the full extent of the White House’s involvement.

Consequently, in a closed briefing session on February 14, 2007, McNulty told members of the Senate Judiciary Committee that the U.S. Attorney removal process began within the Department in September or October of 2006, and that the Department sent a list to the White House Counsel’s office in October and asked if they objected to the names. Similarly, Moschella testified incorrectly before a House Judiciary Subcommittee on March 6, 2007, based on what he had learned during the preparation sessions and from McNulty’s testimony, that the process to remove the U.S. Attorneys began in early October 2006 and that the White House eventually became involved in the removals, but only to sign off on the proposal because the U.S. Attorneys were Presidential appointees.

When we interviewed Sampson, he rationalized his not correcting the misimpression left at the preparation sessions by arguing that there were two separate phases of the process – the earlier “thinking” phase and the later “action” phase, and he said he was focused on the later action phase during the preparation sessions. We found Sampson’s testimony on this point not credible. Sampson sent three separate lists of U.S. Attorneys for removal to the White House for consideration before the fall of 2006. We believe that Sampson should have been more forthcoming at the preparation sessions about the White House’s involvement to ensure that McNulty and Moschella were aware of the facts and did not mislead Congress. Sampson’s failure to do so resulted in inaccurate and misleading testimony about a critical aspect of the controversy.

We concluded that Sampson engaged in misconduct by making misleading statements and failing to disclose important information to the White House, members of Congress, congressional staff, and Department officials concerning the reasons for the removals of the U.S. Attorneys and the extent of White House involvement in the removal process.

[Footnote] 202[:] However, even that would have been inaccurate because, as we noted in each of the U.S. Attorney chapters, with the exception of Ryan’s March 2006 EARS evaluation (which had not yet taken place), each of the EARS evaluations of the removed U.S. Attorneys was largely positive.

Report, pp. 346-351.

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Professor John Yoo and The Justice Case

Paul Kiel reported yesterday at TPMMuckraker that

the House Judiciary Committee authorized a subpoena for David Addington, Vice President Cheney’s Chief of Staff, to testify about the administration’s torture policy

And now the AP reports that John Yoo, probably the most infamous of the infamous characters that walked the halls of the Justice Department during the Bush administration, has agreed to testify as well without compulsion. That’s a departure from his original position, when he said that he could not testify about his role in authorizing the use of torture because he had not received the green light from the DoJ.

The AP adds: “Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee.”

Melissa, both at Left in Alabama as well as at her own Writechic Press, adds this:

Since our own Rep. Artur Davis is on the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, God willing and the creek don’t rise, he’ll be there when torture lawyer John Yoo is questioned.

That’s right! An anonymous source has told The Raw Story that John Yoo, a former Justice Department lawyer who wrote the Torture Memos will testify before the House Judiciary Committee. The memos which gave carte blanche to human rights violations and laughed in the face of the Geneva Conventions have now been repudiated at DoJ though damned if the U.S. Attorney General will hold the Republican Freak Show accountable which is just another form of corruption (to throw Mukasey’s words in his face). Here’s a link to the committee members in case you want to suggest questions.

Davis’ presence will be a refreshing switch from the obsequious, Bush-booty kissing that Sen. Jeff Sessions does. Tear Yoo up, Artur, for all the citizens of Alabama who know torture is wrong and are mad about Yoo.

In the comments to my post on Professor John Yoo, Melissa asks “What questions can we send to Rep. Artur Davis?” Although I have complete faith that Rep. Davis will be well-prepared to properly examine Prof. Yoo, I would suggest that any examination include discussion of The Justice Case. As Professor Marty Lederman, lecturer Keith Jon Heller, Professor Scott Horton and others have discussed the Justice Case in far more detail and expertise than I have and can, I would note that much of this discussion has revolved around Professor’s Yoo’s potential criminal liability. From my standpoint, unsurprisingly, I would address (and have addressed here) Professor Yoo’s ethical obligations.

In introducing a guest post at Balkinization by Kevin Jon Heller, Senior Lecturer, University of Auckland Faculty of Law, Professor Marty Lederman writes:

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

2. Such evidence of the lawyers’ belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the “correctness” of the conclusions contained in the torture memos.

* * *

When, if ever, such “aspirational” constitutional interpretation by executive actors is appropriate — and whether it must be done openly, and with full candor — are very important and difficult questions. For now, my point is merely to describe what I think was going on here, in order better to understand why actual criminal prosecution is almost unthinkable.

3. * * * And, surely, the most prominent and substantial historical precedent here is the Justice Case in the Nuremberg tribunals, in which the U.S. itself led the prosecution of several Nazi Ministry of Justice officials — government lawyers — for their involvement in the execution of the infamous “Nacht und Nebel,” or “Night and Fog,” decrees. The Justice Case is often invoked as an historical analogy for the criminal culpability of Bush Administration lawyers. Like many others, therefore, I have been wondering whether that is in fact a fair analogy. What was it, exactly, that the U.S. prosecutors claimed the German lawyers did to deserve criminal punishment? Was it, for instance (as some have suggested), that the lawyers advised German officials that the “Nacht und Nebel” decrees were lawful under German domestic law, while failing to also tell their government clients that the decrees would nevertheless violate the laws of war and constitute crimes against humanity? If so, then perhaps the Justice Case might have a lot to say about our current situation, because John Yoo, et al., in effect advised the President that he could authorize torture and like conduct under domestic law, and further informed him that he could, at least as a matter of domestic law, simply ignore the laws of war.

All of which is a long-winded way of introducing the important work of a guest blogger, Kevin Jon Heller of the University of Auckland (and Opinio Juris), who is actually undertaking a comprehensive and very important new study of what, exactly, the prosecution’s theories of culpability were at Nuremberg, especially in the Justice Case. In a forthcoming post, Kevin argues that the Justice Case might have less to teach us about the possibility of criminal culpability of Bush Administration lawyers than has previously been suggested. I don’t know for certain whether Kevin’s account is subject to serious debate or question, since I haven’t yet been through the primary materials myself. But I do know that Kevin has looked more closely at this question than any other recent scholar, and that his very important work will be the starting place for any further discussion about the Nuremberg tribunals and the torture memos.

With that introduction, Mr. Heller provides a detailed analysis of The Justice Case:

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.

Before delving into the details of the case, it is important to note that reading NMT judgments can be an exercise in frustration, because they are far less legally precise than the judgments issued by modern international tribunals. In particular, the Tribunals rarely specify the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. The latter flaw is particularly troublesome when trying to apply the legal principles articulated in the Justice Case to Yoo’s situation, because –- as explained below -– none of the defendants in the case were acting simply as legal advisors to the Ministry of Justice. As a result, we can only speculate whether the Tribunal would have convicted any of the relevant defendants if they had held a position of authority similar to Yoo’s.

The Justice Case itself, which was held in Nuremberg between March and December 1947, involved 16 defendants who were associated in various capacities with the criminal-justice system in Nazi Germany. Some were judges and prosecutors in the Nazis’ infamous Special Courts and People’s Courts; others were officials in the Reich Ministry of Justice. The crux of the prosecution’s case, according to Telford Taylor, the NMT’s Chief Prosecutor, was that the defendants were guilty of “judicial murder and other atrocities, which they committed by destroying law and justice in Germany and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.” Particularly relevant to Yoo’s situation is Paragraph 13 of the Indictment, which alleged that the Ministry defendants were criminally responsible for their involvement in the execution of Hitler infamous “Nacht und Nebel” decree (for background on the decree, see Scott Horton’s post here ):

The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.

The Tribunal had little difficulty concluding that the Night and Fog decree had “no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations” (1131). The primary issue, then, was which of the defendants could be held criminally responsible for the war crimes and crimes against humanity committed pursuant to the decree. According to the Tribunal, such individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense” (1093).

Three of the defendants in the Justice Case held positions in the Ministry of Justice that involved, among other things, giving legal advice to the Reich Minister: Wolfgang Mettgenberg, who was Representative of the Chief of the Criminal Legislation and Administration Division; Guenther Joel, who was Legal Adviser for criminal prosecutions; and Wilhelm von Ammon, who was Ministerial Counsellor of the Criminal Legislation and Administration Division. All three were convicted of war crimes and crimes against humanity and sentenced to 10 years imprisonment.

There is, however, a fundamental problem with citing these convictions as precedent for prosecuting John Yoo or other Bush Administration attorneys who “merely” advised that certain conduct was lawful: namely, that Mettgenberg, Joel, and van Ammon were not only legal advisors to the Reich Minister. On the contrary, all three men possessed considerable political authority, as well -– and repeatedly used that authority to actually enforce the Night and Fog decrees.

At this point, Mr. Heller discusses the details of Mettgenberg, Joel, and Von Ammon. These details can be found at the Balkinzation post here.

As these examples indicate, Mettgenberg, Joel, and von Ammon did not simply advise their political superiors that they could legally authorize the commission of actions that qualified as war crimes and crimes against humanity under international law. The defendants personally authorized the commission of those crimes. In other words, Mettgenberg, Joel, and von Ammon were among the political superiors who made the discretionary decisions that were necessary to implement the Night and Fog decree. It is thus difficult to argue that their convictions stand for the proposition that, to quote Scott Horton again, “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.” On the contrary, the Tribunal never -– literally never -– singled out a specific legal opinion offered by any of the Ministry defendants as being even partly responsible for their convictions.

Indeed, the only specific discussion of legal advice in the Justice Case seems to imply that “merely” giving such advice, no matter how erroneous or damaging, does not give rise to criminal responsibility.

* * *

To be sure, the Tribunal does not specifically say that a legal opinion could never give rise to criminal responsibility. Nevertheless, the quoted passage appears to draw a very clear distinction between offering an erroneous legal opinion, which is not criminal, and choosing to implement an illegal government policy, which is.

Does all of this mean that the Justice Case completely exonerates government lawyers who advise their political superiors that war crimes or crimes against humanity are lawful? That is a difficult question. It is certainly possible that the Tribunal would have been willing to convict one of the defendants in the Justice Case for giving such advice to the Reich Minister, particularly if that advice had been a necessary precondition for the creation and enforcement of policies that qualified as war crimes and/or crimes against humanity. Nothing in the judgment itself, however, directly supports that conclusion. Moreover, at a bare minimum, I think the Tribunal would have required the prosecution to prove that the defendant gave the legal advice knowing that the actions he approved actually violated international law. That requirement is implied, I believe, in the Tribunal’s repeated insistence regarding the Night and Fog decree that “[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out, knew that its enforcement violated the international law of war” (1038).

The Justice Case , in short, provides far less support for prosecuting government lawyers like Yoo than scholars have assumed, at least insofar as their role in promoting torture and illegal detentions was actually limited to providing legal advice. At most -– and I believe that the argument is unacceptably speculative -– 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. Whether Yoo would be a criminal under that standard, I leave for others who know far more about his actions to decide.

BIBLIOGRAPHIC NOTE: all citations are to III TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (William S. Hein & Co. ed. 1997)

In the comments section to this post, Professor Scott Horton adds this comment:

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 the case record itself is rather rambling. But Kevin has done a good job of assembling and summarizing key parts of it.

I agree with Kevin that the evidence relating to the Nacht- und Nebelerlass defendants (NNE), especially von Ammon, is key for this point. Of course in the case of Altstoetter proper, the conviction did in fact turn specifically on three letters. But Kevin is correct that the defendants were all involved in the Justice Ministry’s actual administration of the program. We need to be much more careful in distinguishing what the Justice Ministry’s role was in this program. And I don’t agree with him as to the role of the legal opinions. The NNE was a counterinsurgency program designed to give military and occupation security authorities the power to apprehend civilians believed to be engaged in behind-the-lines attacks on Axis troops the authority to “disappear” persons without the need to go through the legal formalities that international law at the time would have required of an occupying power dealing with civilians. The internal records from the High Command (OKW) show that attacks on soldiers by civilians behind the lines of the East Front (especially in occupied Soviet territory) were the immediate inspiration. The original memoranda talk about a new kind of enemy which was fully disguised within the civilian population and was ideologically motivated and driven. These conclusions are correct — as CPSU documents reveal the party’s organization of such a terror campaign against German soldiers. As the proposal emerged from OKW, military and security authority was to be plenary and to rest on executive war-making notions. Von Ammon objected that this approach was a violation of the principle of legality, and he and his colleagues insisted that a process of adjudication be introduced; he also noted the need to arrange for wills, for the custody of children of the “disappeared” and the like. This was the role of the legal administration with respect to NNE. As Detlev Vagts has pointed out, the bulk of von Ammon’s proposals were ameliorative in nature.

The NNE program, and the court’s treatment of it in Altstoetter, has frequently been cited as the first international law authority on the concept of “disappearings,” which is a more modern crime against humanity. But an essential element of “disappearings” is that the person is treated outside the established legal regime (either that provided by the criminal justice system or the laws of armed conflict). The thrust of von Ammon’s position was to recognize this and to insist that a substitute judicial process be provided. This contrasts rather sharply with views articulated by the Bush Administration with respect to the “extraordinary renditions” program, for instance.

But his clearest offense was providing the legal rationale for evasion of the requirements of international law, for instance by providing for the projection of German domestic law into occupied territory. (Even on this point, note that von Ammon was very concerned about the operation of the special judicial process in occupied territory; he wanted the detainees to be transferred to Reich territory.)

The tribunal’s view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon’s mistakes on legal interpretation side-by-side with Yoo’s, the comparison would be very much in von Ammon’s favor, I think. That’s largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today.

Still, I am not trying to curry any sympathy for von Ammon — just the contrary, I think he got off lightly with his seven years served — but to make the point that the administration of the Justice Ministry’s plans was not the largest failing.

On the other hand, it did constitute an overt act in a sense in which the mere rendering of an opinion may not, also a significant point.

The bigger issues here are the JCE issues, which go to the notion introduced in the charge of “foreseeable” damage, among other things.

Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.

The other striking parallel with the facts surrounding the NNE, which came out only with the examination of the records of the international law department at OKW at the close of the process, is that the German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration’s detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a “new kind of warfare” in which the principal foe, and the foe in the cross-hairs of the NNE, was terrorist in nature.

Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo’s response was consistently that he could “fix the problem” by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion.

However, what we need now is to get to the bottom of all these carefully obscured dealings. It’s clear that will never happen before the Bush Administration leaves office, but after it’s gone, getting a clear picture of the lawyers’ dealings should be a priority.

Whether or not Professor Yoo committed a crime and, if he did, whether he will ever be prosecuted either here in the United States or in some other country, it is clear to me that Professor Yoo violated his ethical obligations and should at least lose the right to practice law. In my post stating why Professor Yoo should be investigated for violation of his obligations under the Pennsylvania and D.C. Rules of professional conduct , I quote with approval this post from Professor David Luban:

Of course it’s clear to [Professor] Marty [Lederman] that an OLC lawyer who goes to a party and tries to impress the admiring guests by blabbing about the hush-hush FISA opinion he is working on at the office has violated an ethical obligation – the obligation of confidentiality. And it’s clear that if the lawyer writes an opinion without doing the legal research, his negligence violates the ethical obligation of competence, because, in the words of the D.C. Rules of Professional Conduct , “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I can’t believe that Marty thinks the basic rules of lawyer’s ethics are irrelevant just because the lawyer works for the Office of Legal Counsel. You might want to quibble about labeling all these rules “ethical obligations,” because Rules of Conduct don’t always have to do with ethics in the moralist’s sense. Sometimes they are just a regulatory code. But in the examples I gave, the ethical dimension is undoubtedly there: the rule against betraying confidences and taking the pains reasonably necessary for doing your job are regulatory rules with an ethical basis.

Now it happens that one of these rules is labeled “Advisor.” It reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

“Independent” professional judgment means “independent of the client,” as the first comment to the rule makes clear: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront….However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” And “candid” advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it’s a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, “should resolve in favor of his client doubts as to the bounds of the law.” But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.” Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say “no.” But lawyers who say yes to whatever the client wants (“Dr. Yes” was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere , lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

Marty thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem , “hear the other side.”

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

* * *

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. As I have written in Legal Ethics and Human Dignity , the lawyer-client consultation is the primary point of intersection between “The Law” and the people it governs, the point at which the law in books becomes the law in action. Most law is outside the courts, not in it; and most legal “decisions” take place in conversations between lawyers and their clients – conversations that never leave the office. This is a familiar law-and-society theme – but familiar as it is, we often forget it.

Marty errs, if I’m right, in thinking that the constitutional tremendousness of what the OLC does puts it on a plane above ordinary legal practice. But it’s a mistake, in my opinion, to get swept up in the higher ecstasies of Constitutional Law and the Thrones, Powers, and Dominations who occupy Constitutional Law Heaven – the Justices, the clerks, the theorists (sorry, Jack!), and the high priests in the OLC and the Solicitor General’s office. The law, as the Book of Deuteronomy says, “is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’” The law is very near. It’s what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you’ve gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root’s cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It’s perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. I’ve suggested that the more genuine violation is of the rule requiring candid and independent advice. But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.

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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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John Yoo

Personal Information:

  • Name: John Yoo
  • Bar: Pennsylvania
  • ID No.: 69500
  • Status: Active

To file a grievance against Mr. Yoo in either or both Pennsylvania and Washington, D.C., print and complete the official Pennsylvania and Washington, D.C., Complaint Forms, print and attach this page to the Complaint Form and send to the address noted on the forms.

Grievance Information: Pennsylvania

Grievance Information: Washington, D.C.

Allegations:

John Yoo provided advice to his client that violated his ethical obligations to provide independent, professional and competent advice in authoring and issuing the “Torture Memo” in March of 2003. This advice provided violated both the Pennsylvania Rules of Professional Conduct (large .pdf file) and the D.C. Rules of Professional Conduct (effective January 1, 1991 through January 31, 2007), including the following rules:

Pennsylvania:

  • Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
  • Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer: (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
  • Rule 1.13 Organization as Client: (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization.
  • Rule 1.16 Declining or Terminating Representation: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law….
  • Rule 2.1 Advisor: In representing a client, a lawyer should shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
  • Rule 3.1 Meritorious Claims and Contentions: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
  • Rule 4.1 Truthfulness in Statements to Others: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
  • Rule 5.4 Professional Independence Of A Lawyer: (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
  • Rule 8.5. Disciplinary Authority; Choice of Law: (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Washington, D.C.:

  • Rule 1.1 — Competence (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. (b) A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters.
  • Rule 1.16 – Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) The representation will result in violation of the Rules of Professional Conduct or other law….
  • Rule 2.1 – Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.
  • Rule 3.1 – Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or for the respondent in a proceeding that could result in involuntary institutionalization, shall, if the client elects to go to trial or to a contested fact-finding hearing, nevertheless so defend the proceeding as to require that the government carry its burden of proof.
  • Rule 3.3 – Candor Toward the Tribunal (a) A lawyer shall not knowingly: … (2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.
  • Rule 4.1 – Truthfulness in Statements to Others In the course of representing a client, a lawyer shall not knowingly: (a) Make a false statement of material fact or law to a third person; or (b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
  • Rule 5.4 – Professional Independence of a Lawyer … (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Mr. Yoo’s conduct is not the typical conduct that is a violation of the applicable rules of professional conduct, such as stealing from a trust account, failing to communicate with a client or a violating advertising rules. Professor David Luban explains:

Now it happens that one of these rules is labeled “Advisor.” It reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

“Independent” professional judgment means “independent of the client,” as the first comment to the rule makes clear: “Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront….However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.” And “candid” advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it’s a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, “should resolve in favor of his client doubts as to the bounds of the law.” But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.” Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say “no.” But lawyers who say yes to whatever the client wants (“Dr. Yes” was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere, lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

[Professor] Marty [Lederman] thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem , “hear the other side.”

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

Marty is a constitutional lawyer, and an extraordinarily good one. If I were to venture a diagnosis, I think that fact makes him suspicious that ethics rules – mere ethics rules – miss the special, exalted status of constitutional lawyering at the upper reaches of government. He thinks that ethics rules don’t capture the refracted sunbeams of the Faithful Execution Clause.

Constitutional law, in the eyes of many, is the Holy of Holies in American law. It’s up there in the Empyrean. Ethics rules, by contrast, are the lowliest of the low. They are court rules rather than statutes, they are state rather than federal, and they govern a million people rather than 300 million. They are also, to be perfectly frank, very dull. Constitutional law is exciting and charismatic. It’s the province of The Supreme Court of the United States. Legal ethics is the province of grubby little grievance committees. It’s what you cram for before you take the multistate professional responsibility exam. (As one of my students remarked some years back, the MPRE is like the written part of the driver’s test.)

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. (Emphasis supplied.) * * *

* * * The law, as the Book of Deuteronomy says, “is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’” The law is very near. It’s what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you’ve gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root’s cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It’s perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. (Emphasis supplied.)

When analyzing whether Mr. Yoo’s conduct comports with applicable Rules, including both the violations described by Professor Luban above the additional violations noted below, it is important to note that his statements of denial are not to be taken at face value in making a determination. Specifically, Rule 1.0 Terminology of the Pennsylvania Rules of Professional Conduct and the D.C. Rules of Professional Conduct: Terminology provide that whether someone ‘believes’ something or whether someone ‘knows’ something is to be inferred from the circumstances and whether the conduct, belief or knowledge of the attorney is ‘reasonable’ or not is based on the “reasonably prudent and competent lawyer”, requires “that the circumstances are such that the belief is reasonable” and “denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question”.

The basic facts of Mr. Yoo’s authorship of The Torture Memo were reported on April 2, 2008, by Dan Eggen and Josh White of The Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

* * *

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq .

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.

“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

* * *

The document is similar, although much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.

In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos “stood out” for “the unusual lack of care and sobriety in their legal analysis.”

The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

* * *

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”

“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”

Yoo’s 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action in domestic and international courts.

After a rebellion by military lawyers, then-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.

Largely because of Yoo’s memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo’s March memo and did not know about the group’s final report for more than a year, officials said.

Thomas J. Romig, who was then the Army’s judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found “downright offensive.”

* * *

In a 2004 memo for the Navy inspector general’s office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president’s authority is virtually unlimited.

Mora wrote that he spoke with Yoo at the Pentagon on Feb. 6, 2003, and that Yoo “glibly” defended his own memo. “Asked whether the President could order the application of torture, Mr. Yoo responded, ‘Yes,’ ” Mora wrote. Yoo denies saying that.

Glenn Greenwald explains further,on April 2, 2008, how Mr. Yoo’s conduct violated the canons of professional conduct:

Yet again, the ACLU has performed the function which Congress and the media are intended to perform but do not. As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years, numerous documents relating to the Bush administration’s torture regime that have long been baselessly kept secret were released yesterday, including an 81-page memorandum (.pdf) issued in 2003 by then-Deputy Assistant Attorney General John Yoo (currently a Berkeley Law Professor) which asserted that the President’s war powers entitle him to ignore multiple laws which criminalized the use of torture:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.

As Jane Mayer reported two years ago in The New Yorker — in which she quoted former Navy General Counsel Alberto Mora as saying that “the memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority” — it was precisely Yoo’s torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).

It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:

(1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we’re now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture — actions which then directly lead to the systematic commission of torture — doesn’t make one a war criminal in the U.S., what does?

* * *

Yoo wasn’t just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn’t remove one from the realm of respectability and mainstream seriousness — if not result in war crimes prosecution — then nothing does.

* * *

(4) Since the Nuremberg Trials, “war criminals” include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it. Ironically, the Bush administration itself argued in the 2006 case of Hamdan — when they sought to prosecute as a “war criminal” a Guantanamo detainee whom they allege was a driver for Osama bin Laden — that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.

That legal question was unresolved in that case, but Justices Thomas and Scalia both sided with the administration and Thomas wrote (emphasis added):

“[T]he experience of our wars,” Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the “Regulations Governing the Trial of War Criminals” provided that “participation in a common plan or conspiracy to accomplish” various offenses against the law of war was cognizable before military commissions).

* * *

The fact that a lawyer does something in his capacity as a lawyer does not mean it’s proper, legitimate or legal. The fact that an argument is packaged in lawyerly wrapping doesn’t mean it’s reasonable or offered in good faith. All sorts of lawyers — from those representing crime families to those representing terrorists — have been convicted of crimes because they concealed and/or promoted their clients’ illegal acts. Lawyers aren’t any more immune from the rule of law than anyone else.

Harper‘s Scott Horton makes the point in much the same way:

These memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

Along those lines, Marcy Wheeler and Slate’s Emily Bazelon both demonstrate how un-lawyerly Yoo’s opinions were. Yoo wasn’t acting as a lawyer in order legally to analyze questions surrounding interrogation powers. He was acting with the intent to enable illegal torture and used the law as his instrument to authorize criminality.

Professor Marty Lederman explains that Mr. Yoo’s authorship of the Torture Memo was contrary to established federal law and protocol:

I’ve now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee — can authorize cutting out a tongue and poking out an eye — nothwithstanding a statute that would prohibit that very conduct?

* * *

An OLC legal conclusion does establish the official views of the Executive branch unless overruled by the President, the Attorney General, or OLC itself (as Jack Goldsmith did in the last week of 2003). Therefore, it’s a very solemn function for the Office to have. Actually, by law the function has been assigned to the Attorney General ever since the Judiciary Act of 1789; but in recent decades, the AG has delegated the opinion-rendering function to OLC.

Well, not to OLC, exactly, but to an officer of the United States, the “Assistant Attorney General, Office of Legal Counsel.”

On Friday, March 14th, 2003, that officer was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. John Yoo did not have the legal authority to issue this opinion . . . unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office.

* * *

This [the issuance of the March 14, 2003 OLC Opinion under the name of John Yoo] was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms — so that an unconfirmed, rogue deputy in OLC can’t just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.

Professor Marty Lederman also notes that “[i]n late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the “unusual lack of care and sobriety in [its] legal analysis” — it “seemed more an exercise of sheer power than reasoned analysis” — and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo.

Writing about Philippe Sands’s article “The Green Light” in Vanity Fair, which as he notes is a teaser for Sands’ forthcoming book The Torture Team, Scott Horton notes, on April 2, 2008 in his article The Green Light that Mr. Yoo’s conduct does not meet the threshold required by the ‘Adviser’ rules described by Professor Luban, as noted above:

We’ve all heard ad nauseam the Administration’s official torture narrative. This is a different kind of war, they argue. Each invocation of “different” is to a clear point: the Administration wishes to pursue its war unfettered by the laws of war. Unfettered, indeed, by any form or notion of law. But Sands’s work is important because he has looked carefully at the chronology: what came first, the decision to use torture techniques, or the legal rationale for them?

Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.

Sands notes the focal role that the torture lawyers saw for the Attorney General’s opinion power. It was, as Harvard law professor Jack Goldsmith suggested in a recent book, a device that could be used to give a sort of pardon in advance for persons undertaking criminal acts.

And of course, the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law.

* * *

Of course they missed some things along the way. The legal analyses were so poorly crafted–making the sorts of sophomoric arguments that would land a law student a failing grade on an examination, that Justice was forced to rescind them. (Emphasis supplied.)

* * *

They also missed the established precedent I have cited repeatedly here, namely United States v. Altstoetter, under the rule of which the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity.

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 for additional actions that violate the ‘Adviser’ rules, by failing to even address applicable and established law, let alone distinguish or otherwise explain how it is not relevant:

[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).

In addition to the points addressed by Scott Horton above, Phillipe Sands elaborates on Mr. Yoo’s conduct in his article The Green Light. In this case, the issue is Mr. Yoo’s independence. As confirmed by Mr. Feith to Mr. Sands, the purpose of these documents was to permit conduct that was criminal and otherwise forbidden by the Constitution, the Geneva Conventions and federal statutes.

Relating to this was a second document, one that had been the subject of media speculation for some weeks. The authors of this document, a legal opinion dated August 1, 2002, were two lawyers in the Justice Department’s Office of Legal Counsel: Jay Bybee, who is now a federal judge, and John Yoo, who now teaches law at Berkeley. Later it would become known that they were assisted in the drafting by David Addington, then the vice president’s lawyer and now his chief of staff. The Yoo-Bybee Memo declared that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that mental torture required “suffering not just at the moment of infliction but … lasting psychological harm.” Interrogations that did not reach these thresholds—far less stringent than those set by international law—were allowed. Although findings that issue from the Office of Legal Counsel at Justice typically carry great weight, at the press conference Gonzales went out of his way to decouple the Yoo-Bybee Memo from anything that might have taken place at Guantánamo. The two lawyers had been asked, in effect, to stargaze, he said. Their memo simply explored “the limits of the legal landscape.” It included “irrelevant and unnecessary” discussion and never made it into the hands of the president or of soldiers in the field. The memo did not, said Gonzales, “reflect the policies that the administration ultimately adopted.”

* * *

In the administration’s account there was no connection between the decision on Geneva and the new interrogation rules later approved by Rumsfeld for Detainee 063; its position on Geneva was dictated purely by the law itself. I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” he shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated. As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke. What was the difference for the purpose of interrogation?, I asked. Feith answered with a certain satisfaction, “It turns out, none. But that’s the point.”

That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.

* * *

Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo, interrogation issues had arisen in other quarters. In March 2002 a man named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in Pakistan. C.I.A. director George Tenet wanted to interrogate him aggressively but worried about the risk of criminal prosecution. He had to await the completion of legal opinions by the Justice Department, a task that had been entrusted by Alberto Gonzales to Jay Bybee and John Yoo. “It took until August to get clear guidance on what Agency officers could legally do,” Tenet later wrote. The “clear guidance” came on August 1, 2002, in memos written by Bybee and Yoo, with input from Addington. The first memo was addressed to Gonzales, redefining torture and abandoning the definition set by the 1984 torture convention. This was the Yoo-Bybee Memo made public by Gonzales nearly two years later, in the wake of Abu Ghraib. Nothing in the memo suggested that its use was limited to the C.I.A.; it referred broadly to “the conduct of interrogations outside of the United States.” Gonzales would later contend that this policy memo did “not reflect the policies the administration ultimately adopted,” but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld. The second memo, requested by John Rizzo, a senior lawyer at the C.I.A., has never been made public. It spells out the specific techniques in detail. Dunlavey and his subordinates at Guantánamo never saw these memos and were not aware of their contents.

The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves.

At The Nation, Professor Stephen Gillers adds in The Torture Memo that Mr. Yoo was neither independent nor competent in rendering his legal advice on torture:

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.

Finally, 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 writes:

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.

Mr. Yoo has engaged in conduct that is not independent, not competent and not reasonable. His conduct, including but not limited to the facts and analysis described above, is a violation of the rules of professional conduct of both Pennsylvania and California and more than amply demonstrates that he is unfit to practice law. Take action: file a grievance.

Text and comments of the Pennsylvania and Washington, D.C., Rules of Professional Conduct violated by Mr. Yoo

The immorality of torture leads – inevitably – to prosecutorial misconduct

At Balkinization, Professor David Luban discusses how the adoption of a torture regimen results in this additional unintended consequence: government lawyers are systematically violating “ethics rule[s] forbidding them from speaking with parties who have legal representation without obtaining consent of the party’s lawyer.” Professor Luban explains in greater detail:

This is the “no-contact rule” in the ethics codes. Under existing law, contact forbidden to lawyers is forbidden to their agents and investigators as well. Rather clearly, the Clean Team were doing investigations on behalf of the prosecution, and in fact the Times story [link] quotes a government official who confirms the role that prosecutors played in guiding the Clean Team.

All the Guantanamo detainees are represented by lawyers handling their habeas corpus and Detainee Treatment Act cases. And the Clean Team re-interrogations are poster children for exactly the evil that the no-contact rule was designed to remedy: getting a represented party to make admissions that he would never make if his lawyer had the opportunity to advise him.

* * * [I]n 1998, Congress passed the McDade Amendment, which requires federal prosecutors to abide by state ethics rules, including the no-contact rule. * * * Military lawyers aren’t covered by the McDade Amendement [sic], but their own ethics codes contain the no-contact rule, and require them to follow state bar rules. [Link here to the adopted rules of professional conduct for all 50 states plus Washington, D.C.]

The ABA’s version of the no-contact rule reads: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (State and military rules are similar.)

In the Guantanamo cases, three questions occur. First, is the subject of the representation the same? The Clean Team wants witnesses to talk about 9/11 and who was involved; the habeas lawyers are challenging the legality of their imprisonment. These are not identical legal issues, but the overlap is obvious: both have to do with who the detainee is, who he knows, and what the nature of his involvement with Al Qaeda is, if any. It’s hard to believe that the Clean Team interrogations are not about “the subject of the representation.”

Second, are the prosecutors authorized by law to question represented persons without the consent of their lawyers? As far as I know, no such law exists (do readers have information to the contrary?) And third, were the Gitmo prosecutors authorized to send out the Clean Team by a court order of the military commissions? If so, has it been made public? Revealed to defense counsel? Was there an adversarial hearing over whether such a court order would be proper? I’m fairly confident that the answer to the last set of questions is no. Put it all together, and it looks like the activities of the Clean Team stem from unclean prosecution tactics.

So what rationale do these government lawyers use to justify their actions? Professor Luban explains:

[T]he government does not consider the detainees’ lawyers to actually represent them, because the habeas and DTA lawyers were not assigned by the military commissions Appointing Authority. In an e-mail to me, [Charles] Swift[, who represents Salim Hamdan,] posed the question this way: “When is an attorney not an attorney?” Answer: when the government wants to pretend that the attorney’s client is unrepresented, in order to send the Clean Team in to get information that will avoid all the unpleasantness that torture raises in regimes that purport to respect the rule of law. * * *

Professor Luban correctly concludes:

Admittedly, in the grand scheme of things prosecutorial violations of the no-contact rule don’t have nearly the significance of all the other things wrong with Guantanamo and the military commissions. But the Clean Team and its investigations are part of something that goes much deeper than infractions of the ethics rules: dealing with tortured evidence in a legal system that purports to be civilized. * * *

* * * For years, critics have predicted that – along with all its other evils – torture would make it harder to bring terrorist criminals to justice. Those chickens are now coming home to roost. Small wonder if prosecutors have to cheat on their professional ethics to try to make the stain go away.

The damages caused by the arrogance, recklessness and incompetence of the Bush administration and its lawyers continue to increase. Had enough? File a grievance.

E.M.

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