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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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

Mark Everett Fuller

The Preamble to the Alabama Rules of Professional Conduct states, inter alia, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, of the administration of justice, and of the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

In multiple instances, Mark Everett Fuller has failed to adhere to these – and many other – standards of conduct.

Mark Everett Fuller was nominated by President George W. Bush on August 1, 2002 to the U.S. District Court in Alabama and was confirmed by the U.S. Senate on November 14, 2002. Since taking the bench, Judge Fuller has breached various rules of professional conduct, most notably in his handling of the prosecution of former Alabama Governor Don Siegelman. Judge Fuller should be investigated by the Alabama State Bar Office of Legal Counsel to answer for his violations of the Alabama Rules of Professional Conduct. The following analysis establishes the factual basis needed to file a grievance against Judge Fuller. Due to the complexity of the case, I have quoted extensively from the work of Scott Horton to establish a factual basis for Judge Fuller’s violations.

Personal Information:

  • Name: Hon. Mark Everett Fuller
  • Firm: U. S. District Court
  • Address: One Church Street
    Montgomery , AL 36104-0000
  • Phone: (334) 954-3640
  • Fax: (334) 954-3649
  • Date Admitted: September 27, 1985
  • Law School: Alabama, University of

Grievance Information: Alabama

Allegations:

Judge Fuller improperly failed to recuse himself from the prosecution of Don Siegelman

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article Mark Fuller and the Siegelman Case, Mr. Horton provides background for review of this matter:

In 2002, Don Siegelman lost the governorship of Alabama to Bob Riley by 3,000 votes, raising suspicions of electronic vote tampering. According to an affidavit 1

[Footnote] 1. The affidavit was prepared to serve a limited-purpose challenge to the role of Terry Butts, who appeared as a lawyer in the Scrushy/Siegelman case, had previously worked for Governor Riley.

by lifelong Republican Dana Jill Simpson, on November 18, 2002, soon after Siegelman’s defeat, a conference call was held among Bob Riley’s senior aides, and during the call William Canary, a prominent Alabama Republican, said “not to worry about Don Siegelman” because “his girls”— meaning two U.S. attorneys, Alice Martin and Canary’s wife Leura, both of whom subsequently indicted Siegelman—would “take care” of the governor; furthermore, Karl Rove was described as “pursuing” Siegelman with help from U.S. attorneys in Alabama. (Time has a thorough article on the issue, with a response from Canary.)

In November 2003, one year after Siegelman’s defeat, the Mobile Press-Register published a poll showing that in the event of a rematch between Riley and Siegelman, Siegelman would prevail. 2

[Footnote] 2. Bill Barrow, “Riley’s Ratings are Low: Governor Would Trail Moore, Siegelman in 2006 Race,” Mobile Press-Register, Nov. 16, 2003, p. 6..

I spoke with sources within the Alabama GOP who told me that this poll set off alarm bells and was cause for a number of meetings and discussions about how to deal with the “Siegelman problem.” Before long, I believe, a solution to that problem manifested itself in the form of an indictment.

The Tuscaloosa Case
In May 2004, Alice Martin brought the case on claims that Governor Siegelman, with two other men, had been involved in an effort to rig bids on a state project in Tuscaloosa. After a series of recusals, the case came before the Chief Judge of the Northern District, U.W. Clemon, in Birmingham. As reported in the Montgomery Advertiser, Martin was opposed to Clemon handling the case and attempted to force his recusal. Clemon, however, rejected the Justice Department’s request that he step aside. He also refused to allow the defense to portray the proceedings as a “political conspiracy,” but also expressed skepticism that the government had enough evidence to make out a case of conspiracy, which was the principal count. In my analysis of the case, I found that Clemon asked penetrating questions of the prosecutors, and when their answers reinforced his suspicions, he demanded that they present a prime facie showing of their case before allowing the matter to proceed. When they were unable to do this, Judge Clemon dismissed the conspiracy case with prejudice, and with that, the first effort to prosecute Siegelman imploded in October 2004.

Enter Mark Fuller
But there was more to come. In October 2005, federal prosecutors indicted Siegelman on new corruption charges in Montgomery, Alabama, a different judicial district distinct from the Northern Alabama district in which Clemon had previously dismissed similar charges without prejudice. In theory, federal judges are assigned to cases at random. But according to a well-placed Alabama GOP source who wishes to remain anonymous, some senior figures in the Alabama GOP appear to have known from the start that this case was going to be handled by a man they counted a friend, namely, George W. Bush–appointee Mark Fuller. Regardless of whether the GOP had the power to influence case assignments, Mark Everett Fuller was in fact assigned as judge who presided over the grand jury proceedings in this second effort to prosecute Siegelman.

* * *

Mark Fuller and the Siegelman Case, Scott Horton, July 31, 2007

Mr. Horton further describes the personal animosity held by Judge Fuller for Mr. Siegelman which should also have resulted in Judge Fuller’s recusal in this matter:

Fuller’s tenure as District Attorney for Alabama’s 12th Judicial Circuit lasted from 1997, when he was appointed by Republican Governor Fob James, through 2002, when, based on recommendations from Alabama Republican Senators Richard Shelby and Jefferson Sessions, he was nominated by President George W. Bush for a federal judgeship in the Middle District of Alabama in Montgomery. Fuller was confirmed in November 2002.

A routine state audit of Fuller’s office for the period from October 1999 to April 2001, found that “there were a few incidents of insufficient or incomplete documentation of disbursements” at the office. (A copy of the audit report can be found here.) State auditors recognized that Fuller, as district attorney, had very broad discretion in budget, so they did nothing to challenge these payments.

Fuller’s replacement Gary McAliley, however, 1

[Footnote] 1. Someone with direct knowledge of the situation told me that McAliley was Fuller’s “nemesis.” Whether this was true at the time, it is true that McAliley soon became a thorn in Fuller’s side.

appointed by then-Governor Don Siegelman, started another audit and began to investigate Fuller for salary spiking–the practice of making extraordinary payments to a person who is on the verge of retirement–in this case, presumably, because an Alabama rule for determining state pensions counts an employee’s earnings for the highest three years of the last 10 years of work. The McAliley audit concluded that Fuller allowed his chief investigator Bruce DeVane an extra $70,000 in 2000-–close to twice DeVane’s annual 1999 salary—to “compensate him for working nights and weekends on developing policies and procedures manuals for the district attorney’s office.”

[Image of a photo of Fuller at a 2005 law clerk reception appears in original post.]

The Retirement Systems of Alabama (RSA), which administers pension payments to former state employees, determined that the payments to DeVane were irregular and decided not to take them into account in calculating DeVane’s retirement benefits. DeVane went to court to force their hand. His star witness: Mark Fuller, now a federal judge in Montgomery. Fuller testified that he could legally pay DeVane any salary he wished and expressed the view that the state was bound to support his decision.

The following editorial, in the RSA’s newsletter Advisor in September 2003, described the case as the RSA saw it:

In December of last year, Judge Fuller appeared before the ERS Board wanting to “spike the retirement benefit” for a former employee, Mr. Bruce DeVane. When Judge Fuller was District Attorney for Pike County, he had given Mr. DeVane an 89% pay increase from $80,301 to $152,014 for one year only. If this additional payment were considered regular salary, his retirement income would have been increased by $1,000 per month or $330,000 over his expected lifetime. The Board rightfully denied the benefit spike. The Montgomery Advertiser editorial of December 5, 2002, congratulated the Board in standing tall to prevent a “ . . . back loading of salaries to boost pensions . . . .”

On February 22, 2006, the Enterprise Ledger summarized the case as follows: 2

[Footnote] 2. Kim Lewis, “Salary ‘Spiking’ Case,” Enterprise Ledger, Feb. 22, 2006. Reproduced in the Retirement Systems of Alabama Advisor, Vol. 31 No. 9, March 2006. [End Footnote.]

A former investigator for Coffee and Pike counties has not given up claims that the state owes him an additional $14,000 a year in retirement. Even though a Montgomery County judge dismissed Bruce DeVane’s case against the Retirement Systems of Alabama, DeVane’s attorney is hopeful the Alabama Court of Civil Appeals will reverse the judge’s decision.

In a civil lawsuit that took nearly two years to settle, Judge Eugene Reese, upheld a decision by RSA to spare Alabama taxpayers and deny DeVane’s claims to what RSA refers to as “extraordinary compensation.” During the January 2004 bench trial, DeVane’s former boss, U.S. District Judge Mark Fuller, who was district attorney for Coffee and Pike counties at that time, testified on behalf of DeVane. As DeVane’s boss, Fuller claims he could legally pay DeVane any salary he deemed suitable . . . .

Indeed, RSA lawyers had argued successfully that the jump in DeVane’s salary constituted an “extraordinary” circumstance that did not merit attention in calculating DeVane’s overall retirement pay. D.A. Gary McAliley, who did not return calls requesting comment, testified that the payments were, as a matter of operating procedure within his office, extraordinary. The state court sided with the RSA and McAiley, rejecting the views put forth by Fuller.

The head of the RSA is David G. Bronner—a highly regarded figure in Alabama’s state administration who oversees billions in pension funds. Bronner did not respond to my requests for comment, but he did publish a column on the matter, entitled “Sarcasm: Justice in Bama,” in the August 2007 Advisor. In the piece, he draws a connection between the DeVane case and the fact that Fuller later refused to grant the RSA the ability sue Enron in Alabama state court. He wrote:

I do not like U.S. District Judge Fuller nor does he like me. The RSA had to go through the entire state court system to prevent Judge Fuller’s buddy from ripping off the RSA. Shortly thereafter, Judge Fuller tried to sandbag the RSA by preventing our claim (by doing nothing) against the ultimate crook–Enron! Fortunately, the RSA prevailed on both issues.

In 2002, in the wake of the audit, Fuller simply said that the criticism of him was “politically motivated.” See also New District Attorney Named, December 23, 2002

But think about that for a moment. Fuller, an Alabama Republican stalwart, leaves for the federal bench—then finds his work as District Attorney under investigation by his replacement Gary McAliley. Fuller’s federal position was secure but his reputation was bruised, and he responded to his critics by insisting he left the D.A.’s office in “sound financial condition.” But he also let it be known that he felt that he was under political attack—by a recent Siegelman appointee. Given that, ask yourself: why would Fuller, a man with very good reason to have a grudge against Siegelman’s entire operation, not recuse himself from judging Siegelman?

To me, it looks like there was a score to settle.

Judge Fuller: A Siegelman Grudge Match? by Scott Horton, August 2, 2007.

Indeed it does. Judge Fuller’s personal animosity is further described by reporter Laura McGann at TPMMuckraker:

Dana Jill Simpson wasn’t just worried about Rove’s involvement in Gov. Don Siegelman’s (D-AL) case. She also testified that she heard about a behind-the-scenes arrangement to ensure which judge would get the case — a judge sure to “hang” Siegelman.

Simpson said that Gov. Bob Riley’s (R) son, Rob Riley, told her in a 2005 conversation — one where Riley also said that Rove was pushing to have the Justice Department investigate Siegelman — that Judge Mark Fuller would get the case because Fuller, an active Republican, had a beef with Siegelman over an audit.

We’ve posted the portion of the interview where Simpson discusses Fuller here.

Q And did he talk to you about Mark Fuller’s politics or political work?

[Simpson] He did.

Q What did you talk about in that regard?

[Simpson] I asked him — he made a statement that Fuller would hang Don Siegelman. And I asked him how he knew that, if he got him in his court. And he said that Fuller was — had been on the Executive Republican Committee at Alabama — in Alabama before he been a judge and he also told me about a backlogging case, which is what you call the salary spike. He called it the “backlogging.”

Q And did [Riley] say any more about what Don Siegelman had to do with those audits that put Mark Fuller out?

[Simpson] He said that Don Siegelman had caused Fuller to get audited. That’s what Fuller thought. He hated him for that.

Republican Lawyer Interview with House Judiciary Panel Released by Laura McGann, October 10, 2007.

Mr. Horton describes additional acts of misconduct by Judge Fuller in his handling of the Siegelman matter:

When the jury retired, half of the members favored acquittal, and the other half, who according to subsequent statements felt they were doing what Judge Fuller wanted them to do, supported conviction. The jury initially deadlocked, sending the judge a note stating that they could not resolve the case. The judge responded by suggesting that he would be prepared to hold them indefinitely, including over the upcoming holiday. An anonymous source supplied defense counsel with evidence that some jurors were engaged in inappropriate conduct, among other things reading press accounts of the case and discussing how to pressure other jurors into a conviction with outside evidence.

Two emails in particular, which I was able to obtain from pleadings filed with the court, indicate that outside materials were being downloaded from the Internet and used by these jurors in an effort to pressure their wavering peers:

Exhibit 23:
“….judge really helping w/jurors…
still having difficulties with #30
…any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.
[first name of Juror B]

Exhibit 24:
“I can’t see anything we miss’d. u?
articles usent outstanding! gov & pastor up s—t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
…they missed before, but we won’t
…also, keepworking on 30…
will update u on other meeting.
[first name of Juror B]

Normally such evidence would result in dismissal of the jury and an order directing a new trial, but not here. Fuller refused to subpoena the email records in question, to question the jurors about the allegations of improper conduct, or to allow counsel to do the same. When the defendants sought to notify the Internet service providers so that the records could be preserved, the motion was summarily denied. Then Fuller, acting to protect the “sanctity of the jury,” adjourned the case for one year before sentencing—long enough for most Internet service providers to automatically dispose of emails maintained on their servers.

Judge Fuller and the Trial of Don Siegelman by Scott Horton, August 3, 2007.

Mr. Horton also reports on a motion filed by Don Siegelman’s attorneys to recuse Judge Fuller from hearing the case due to his conflicts on interest:

The recusal motion rested upon details about Fuller’s personal business interests. On February 22, 2007, defense attorneys obtained information that Judge Fuller held a controlling 43.75% interest in government contractor Doss Aviation, Inc. After investigating these claims for over a month, the attorneys filed a motion for Fuller’s recusal on April 18, 2007. The motion stated that Fuller’s total stake in Doss Aviation was worth between $1-5 million, and that Fuller’s income from his stock for 2004 was between $100,001 and $1 million dollars.

In other words, Judge Fuller likely made more from his business income, derived from U.S. Government contracts, than as a judge. Fuller is shown on one filing as President of the principal business, Doss Aviation, and his address is shown as One Church Street, Montgomery, Alabama, the address of the Frank M. Johnson Federal Courthouse, in which his chambers are located.

[Image in original not reprinted here.]

Doss Aviation, Inc. (motto: “Total Quality Service Isn’t Expensive, It’s Priceless”) and its subsidiary, Aureus International, hold contracts with a number of government agencies. Quoting from defense counsel’s motion for recusal (emphasis in the original):

Doss Aviation, Inc. has been awarded numerous federal military contracts from the United States government worth over $258,000,000, including but not limited to: An , August 2002 contract with the Air Force for $30,474,875 for Helicopter Maintenance, a November 2003 contract with the Navy for $5,190,960 for aircraft refueling, a February 2006 contract with the Air Force for over $178,000,000 for training pilots and navigators, and a March 2006 contract with the Air Force for $4,990,541.28 for training at the United States Air Force Academy. The February 2006 contract with the Air Force for over $178,000,000 is for 10 ½ years, but is renewable from year to year . . .

An Enterprise Ledger article dated April 3, 2005, states that “FBI agents, military and civilian pilots and medical professionals all over the world wear (Aureus International) products which are cut, sewn, inspected, bagged and shipped from its home in Enterprise.”

Doss Aviation and its subsidiaries also held contracts with the FBI. This is problematic when one considers that FBI agents were present at Siegelman’s trial, and that Fuller took the extraordinary step of inviting them to sit at counsel’s table throughout trial. Moreover, while the case was pending, Doss Aviation received a $178 million contract from the federal government.

The Public Integrity Section of the Department of Justice intervened, saying almost nothing about the merits of the motion, but attacking the professional integrity and motives of its adversaries. Here’s an excerpt from the government’s response:

[section title] II. The Petition is the Latest Implementation of Defendant Scrushy’s Bad Faith Strategy to Attack the Integrity of the Judicial Process

As discussed above, the United States submits that the defendant’s Petition is a meritless attack on the District Judge who presided over his conviction by a jury. In light of federal courts’ warnings, cited above, to avoid bad faith manipulations and forum-shopping, the United States notes the following indicators of defendant’s bad faith throughout these proceedings.

Even a quick review and judicial notice of the media accounts surrounding this litigation makes evident that the Petition is just another part of an ongoing and considered strategy of attacking every aspect of the judicial process . . . Immediately after the trial, counsel for defendants Siegelman and Scrushy falsely attacked the conduct of the jury . . .

This, of course, fails to address the legal merits of the motion, merely beating up on opposing counsel.

Judge Fuller denied the motion for recusal. His decision raises three issues:

First, Fuller suggests that he is merely a shareholder in an enterprise. In fact, Fuller’s 43.75% interest in a company with a handful of shareholders makes him the controlling shareholder in a tightly held business.

Second, Fuller derides as a “rather fanciful theory” that he would be influenced by the fact that his business interests derive almost entirely from Government contracts, including from the litigant before the court. It seems that Fuller would have us believe that the process of issuing these contracts is divorced from the political world in Washington. That’s absurd: an examination of press statements surrounding contracts awarded to Doss Aviation shows that Fuller’s political mentor, Representative Terry Everett, is regularly cited in connection with the contract awards. Moreover, the entire process of Department of Defense contract awards is now notoriously politicized through “earmarking” and similar processes that effectively allow legislators to steer lucrative contracts into the hands of their political friends. 1

[Footnote] 1. Case in point: immediately after Fuller’s sentencing of Don Siegelman, Siegelman’s Republican successor Bob Riley disappointed his G.O.P. supporters in Cullman County by canceling his appearance at a dinner there and making a sudden and unexpected trip to Washington. Riley stated that he was going to meet with officials at the Department of the Air Force with respect to an important new contract for Alabama—but Riley also met with Senator Jefferson Sessions and two White House aides. He may have missed dinner in Alabama, but that doesn’t mean he missed out on pork.

Third, Fuller states that he “made several rulings in favor” of the defense. I looked through the record, attempting to find the rulings to which Fuller is alluding, and I can’t find them. It is true that Fuller endorsed rulings that were made by the assigned magistrate-judge on some points, but a review of the record will show that Fuller was relentless in his support for the prosecution and his rejection of defense claims.

At the Edge of Judicial Ethics
The recusal motion points to the difficulties of a federal judge continuing to hold active business interests with entities that litigate before them. Usually, judges divest themselves of such interests and place their holdings in a blind trust. But the evidence offered here raises serious question as to the amount of distance Fuller has put between himself and the business interests that provide the bulk of his income. And in this case there has been at least one clear-cut breach. “Fuller’s designation of his judicial chambers as his address in connection with corporate registrations,” said Nan Aron of the Washington-based judicial oversight organization Alliance for Justice, “clearly runs afoul of the rules, as does his retention of any office, including as agent for service of process.”

Two more cases show a curious attitude towards recusal. First, notwithstanding his former membership in the Executive Committee of the Alabama Republican Party, Fuller participated in the resolution of a highly contentious litigation involving interests of the Executive Committee in a case entitled Gustafson v. Johns decided in May 2006.

Second, there is a case now pending in the Middle District that was initially assigned to Fuller, involving a government contract for the procurement and modification of two Russian helicopters. In the middle of the case sits Maverick Aviation, Inc., of Enterprise, Alabama—the same town from which Fuller hails and where his business operations, which would appear to be similar in scope to those of Maverick Aviation, are sited. From the facts described in several accounts, the company would appear to be a direct competitor with Doss Aviation. Fuller, however, handled this case for several months before his recusal was sought and obtained. The recusal order has been placed under seal, making it impossible to learn what conflicts the parties saw in the matter, nor why Judge Fuller felt free to handle the case for some time before withdrawing. It could be legitimate, or it could be a coverup, and there is no way to find out with the seal in place. 2

[Footnote] 2. Sean Reilly, “Bribery Case Involves Russian Copters, Classified Info,” Mobile Press Register, Mar. 7, 2007, p. 01A.

A judge has the responsibility to raise conflict issues on his own initiative—to disclose them to the parties appearing before him, and, when appropriate, to drop out of a case. Judge Fuller, on the other hand, as a committed senior Republican and part-owner of a large business that survives on government contracts, has presided over cases that relate to his personal interests. And that raises questions about the kind of justice he dispensed in the Siegelman case.

The Pork Barrel World of Judge Mark Fuller by Scott Horton, August 6, 2007.

Mr. Horton discussed whether Judge Fuller’s involvement in the Siegelman case was proper with legal ethicist Professor David Luban, the author of the author of Legal Ethics and Human Dignity:

1. Judge Fuller is a Republican, and before coming to the bench he worked on a number of Republican campaigns. He served as a member of the Alabama Republican Executive Committee at a time when Don Siegelman was a Democratic state office holder. Was it proper for Fuller to sit as a judge in the Siegelman prosecution?

There’s a well-accepted legal standard for when a judge should disqualify himself from a case: the judge should bow out when his impartiality can reasonably be questioned. That’s the standard in both the judicial code of ethics and in federal law. The point is to maintain confidence in the fairness and integrity of the legal system. Keeping that in mind, the bare fact that Judge Fuller is a Republican clearly isn’t enough to raise questions. Most judges belong to one party or the other, and a lot got their job on the bench because they were active party members. We expect that they can put mere party sympathy aside when they try cases. But on these facts, Judge Fuller was a lot more than just an active party member. He was a electoral strategist, an executive committee member, and an anti-Siegelman campaigner. How can a reasonable person fail to have doubts about his impartiality? If you’ve spent years organizing the “Beat the Yankees” Club, you should not be umpiring a Yankees game–even if you think you can call the game honestly.

2. In addition to his political engagement, a Siegelman appointee questioned some extraordinary payments Fuller made while he was a district attorney. There was a litigation in which Fuller testified, and the court ruled against him and for the state retirement agency. Fuller was quoted as stating that this was “politically motivated.” Does this raise any questions?

If Judge Fuller complained that it was “politically motivated,” it sounds like he might be blaming Siegelman for it. Without knowing the context it’s hard to tell whether the judge was complaining only about the appointee, or the governor as well. If the latter, it means that the judge had expressed a grudge against Siegelman and obviously should not be trying his case.

3. Judge Fuller appears to derive most of his income from a closely-held business in which he remains the controlling shareholder. The business is almost entirely involved with government contracts, with the Department of Defense and Department of Justice as contractors. What is your reaction when you look at the recusal motion, in which this was set out in some detail, the Justice Department’s response, and Judge Fuller’s ruling?

Generally, the standards for recusal motions are tough, to discourage parties from judge-shopping. I started reading these papers with that viewpoint—namely that the defendant had an almost impossible case to make. But the more I read the papers, the more I was persuaded that this actually was one of those rare cases where the burden was met. Remember: the legal standard is whether you can reasonably question the judge’s impartiality. If so, the law requires the judge to disqualify himself. This is not a run-of-the-mill criminal case where a judge’s commercial side-dealings with the government would not raise a question about pro-government bias. This one is a politically charged case involving a former governor in which political leaders in Washington, D.C., who ultimately exercise tremendous control over the process of military procurement contracts, are likely to take great interest. Given the amount of money Judge Fuller’s company gets from government contracts, any reasonable person would question how impartial he could be. He should not have taken this case, and with a recusal motion made, he had no option but to drop out.

What amazes me about these facts is that they combine past political activism against the governor, a possible grudge against the governor, and the judge’s company’s financial dependence on the government’s good graces. If they’re right (I don’t have any independent knowledge of that), any one by itself would raise reasonable questions about the judge’s ability to be impartial. Taken together, we have a perfect storm. Under these circumstances, impartiality would take superhuman self-control, and we don’t expect judges to be superhuman. The recusal standard is designed so that we don’t have to expect it.

4. You read the Justice Department’s papers, which were filed both by the U.S. Attorney’s office in Montgomery and by the Public Integrity Section at the Department of Justice in Washington, D.C.

I was troubled by the papers filed by the Department of Justice. Half the argument is an ad hominem attack on their adversary’s attorneys for daring to question the government’s fairness. Without offering any evidence, it accuses them of bad faith, and it’s loaded with insulting adjectives. The motion makes it look like the government is blowing smoke to deflect attention away from the real issue.

But rhetorical overkill isn’t the main problem. The most troubling problem is that the Justice Department’s Professional Integrity Section joined this response. That was a real lapse of professional judgment. PIN (as it’s called) is in charge of policing public officials. That includes judges as well as elected officials. Under some circumstances, PIN could be called on to make an independent after-the-fact assessment of Judge Fuller’s conduct. By signing onto the Justice Department’s submission at this point, before there’s been a hearing on the recusal motion, the Public Integrity Section makes it virtually impossible for it to do its oversight job later, because it’s already staked out a position on the case before hearing all sides of the argument.

An Interview with Legal Ethicist David Luban Regarding Judge Mark Fuller by Scott Horton, August 7, 2007.

Mr. Horton details additional improper conduct of Judge Fuller:

Back in October 2002, Brown filed a FOIA request, Brown v. Ashcroft, to compel the Justice Department to release documents relating to the case. The case was bounced down to Montgomery and assigned to Mark Everett Fuller. Shortly after the suit was filed, Justice responded, releasing over 1,000 documents, and then seeking summary judgment on the grounds that the relief that Brown was seeking had been granted.

Two years later, Fuller disposed of this case acting sua sponte. He struck the names of Alice Martin and John Ashcroft from the caption and then dismissed the case for “failure to state a claim,” concluding that Brown’s letters of request had been too vague.

Fuller’s conduct is bizarre. There was nothing vague about the letters, and indeed, the Justice Department found them in order and processed the request. It appears to me that Fuller was spinning, trying to clean up the record in a way that would eliminate Alice Martin’s name from public visibility. He had become a far more engaged defender of the Gonzales Justice Department than the department was of its own interests. And that’s also the posture he adopted at the Siegelman trial. Is this the way an impartial federal judge handles a matter?

The Alice Martin Perjury Inquiry by Scott Horton, September 8, 2007.

And the allegations of unethical – as well as criminal – conduct by Judge Fuller are not limited to the Siegelman case. As reported by Mr. Horton:

I have received a copy of an affidavit (8.7Mb PDF) filed by a Missouri attorney in 2003 which details a number of charges of unethical and criminal conduct against Judge Mark Fuller. The attorney sought Fuller’s removal from a high-profile litigation which related to a prominent Republican who was close to both the current President Bush and his father.

The attorney, Paul Benton Weeks, had been involved as counsel for plaintiffs in a civil action called Murray v. Scott & Sevier, which had originally been filed in Kansas and was later transferred to Montgomery and assigned to Judge Fuller. Weeks, reached by telephone this morning, advised me that he did a routine background check to discover what kind of judge he was up before. “I was astonished by what I found,” Weeks said. Immediately after the papers were filed, Weeks said that Fuller was removed as the judge handling the case.

In the affidavit, Weeks accuses Fuller of engaging in criminal conduct both before and after he came on to the bench. The charges include perjury, criminal conspiracy, a criminal attempt to defraud the Retirement System of Alabama, misuse of office as a District Attorney, and an obstruction of his background check by the FBI in connection with the review of his appointment by President Bush to the bench. (I faxed a copy of the affidavit to Fuller’s office and also left a message asking for comment, but received no reply; if Fuller does reply I’ll update this post.)

Weeks’s allegations were transmitted to Noel Hillman, the head of the Public Integrity Section at the Department of Justice, among other recipients. Hillman’s office has responsibility to conduct investigations into allegations concerning wrongdoing by federal judges.

This means that at the time that Fuller was presiding over the prosecution of former Alabama Governor Don E. Siegelman, a prosecution brought by Noel Hillman’s Public Integrity Section, he was or should have been the subject of an investigation by the Public Integrity Section. [Italics in original] * * *

Weeks’s allegations are focused on Fuller’s conduct in connection with “salary spiking” involving two of his employees in the District Attorney’s office. Fuller’s testimony, which Weeks says was contradictory and which changed materially in the course of the matter, was disbelieved both by the RSA and by an Alabama court handling the matter. Weeks calls Fuller’s statements under oath perjured. * * *

Weeks’s affidavit reflects interviews with Fuller’s successor in the district attorney’s office and with senior officials at the RSA, who confirm the allegations against Fuller. “Judge McAliley then said that he had met with RSA officials and that every member on the RSA board believed Mark Fuller had lied and that Fuller had lied under oath.” [Italics in original.]

Weeks notes that after the affidavit was transmitted to the Justice Department, no individual from Noel Hillman’s group ever contacted him to follow up on any of the allegations or to request any of the documentation that was cited in the affidavit.

* * *

2003 Affidavit Raises More Serious Questions About Siegelman Judge, by Scott Horton, October 16, 2007.

Rules Violated:

  1. RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
  2. RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL
  3. RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
  4. RULE 8.4 MISCONDUCT

Text and comments of the Alabama Rules of Professional Conduct violated by Mr. Fuller

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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