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

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John Ashcroft: Jamie Gorelick cannot be trusted – or can she?

Describing the political situation he faced prior to providing testimony to the 9/11 Commission, former Attorney General John Ashcroft writes in Never Again – Securing America and Restoring Justice:

One member [of the 9/11 Commission] in particular had a definite conflict of interest. Jamie Gorelick served as deputy attorney general under Attorney General Janet Reno during the Clinton administration. A bright, articulate woman who left the Justice Department in 1997, Gorelick was working in the private sector prior to being tapped by Democrats to serve on the 9/11 Commission. According to media reports, her name had been on the short list of potential candidates for attorney general had Vice President Al Gore won the presidential election in 2000. Even most Republicans considered her a logical choice to be included on the Commission. But Jamie Gorelick knew something the other members of the Commission either didn’t know or had chosen to ignore.

In 1995, Jamie Gorelick wrote a memo in which the Justice Department reinforced and heightened “the wall” inhibiting communication between the criminal investigation and intelligence officers investigating terrorists. The idea of “the wall” originally followed the enactment of the Foreign Intelligence Surveillance Act of 1978. The deputy attorney general’s memo raised the wall higher than the law required. The wall impeded our law enforcement and intelligence agents from sharing vital information that might have led them to the hijackers before the terrorist attacks of 9/11. Knowing this, one might wonder how Jamie Gorelick could fairly serve on the Commission. The answer was simple: her memo was classified. Few people knew that Jamie Gorelick had actually caused information not to be shared between intelligence and law enforcement agents.

Never Again, p. 236-237.

So Jamie Gorelick, single handedly, was to blame for the FBI’s and CIA’s failure to prevent the 9/11 attacks. And not only did Gorelick make the decision that prevented the FBI and CIA from protecting the United States, she did it knowing full well the dangers this nation was facing. Ashcroft continues:

Clearly, the deputy attorney general understood that potential terrorist groups existed within the United States, maintaining connections with other terrorist groups abroad. Yet she felt compelled to raise the wall higher.

Because the counter intelligence investigation will involve the use of surveillance techniques authorized under the Foreign Intelligence Surveillance Act (FISA) against targets that, in some instances, had been subject to surveillance under Title III, and because it will involve some of the same sources and targets as the criminal investigation, we believe the it is prudent to establish a set of instructions that will clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation.

In theory, the memo’s enhancement of “the wall” was supposed to help avoid legal challenges to terror prosecutions. But with the simple phrase “which go beyond what is legally required,” the memo acknowledged that this enhancement of the wall was not necessary. I do not believe that Deputy Attorney General Gorelick comprehended the danger of maintaining and elevating the wall.

Never Again, p. 238.

In his testimony to the Commission, Ashcroft stated:

But the simple fact of September 11 is this: we did not know an attack was coming because for nearly a decade our government had blinded itself to its enemies. Our agents were isolated by government-imposed walls, handcuffed by government-imposed restrictions, and starved for basic information technology.

Never Again, p. 244.

And if he hadn’t yet made it clear that Jamie Gorelick was to blame for the 9/11 attacks, he drives the point home:

The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents. Government [i.e., Jamie Gorelick] erected this wall. Government [i.e., Jamie Gorelick] buttressed this wall. And before September 11, government [i.e., the FBI and CIA] was blinded by this wall.

Never Again, p. 245.

However, since the time of Ashcroft’s 9/11 testimony and the publication of Never Again, Jamie Gorelick has seemingly both vastly improved her judgment and also rehabilitated her reputation because the Jamie Gorelick that authored the “single greatest structural cause for September 11” and served on the 9/11 Commission in spite of a “definite conflict of interest” is the same Jamie Gorelick who is now lobbying for the enactment of the Bush administration’s plan for telecom immunity on behalf of the telecom industry. Apparently, she can now be trusted.

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It’s not paranoia if they ARE out to get you

The Washington Post’s Dan Eggen reported yesterday that

A federal grand jury in Alexandria has issued a subpoena seeking information about the confidential sources of a newspaper journalist who wrote in a 2006 book about alleged CIA efforts to infiltrate Iran’s nuclear program.

The Jan. 24 subpoena ordered the reporter, James Risen of the New York Times, to appear before the grand jury next Thursday, said David N. Kelley, Risen’s attorney. Kelley, a former U.S. attorney in New York, said Risen plans to resist the order.

Glenn Greenwald then correctly described Attorney General Michael Mukasey’s involvement and the dangers presented by this tactic:

Although there are still facts missing — such as whether this Subpoena was actually approved by Mukasey rather than Gonzales — it’s hard to avoid the conclusion that the Grand Jury Subpoena was done at least with Mukasey’s assent. It seems rather clearly to signify the intent of his Justice Department to more aggressively pursue reporters who disclose information embarrassing to the President.

It’s hard to overstate how threatening this behavior is. The Bush administration has erected an unprecedented wall of secrecy around everything it does. Beyond illegal spying, if one looks at the instances where we learned of lawbreaking and other forms of lawless radicalism — CIA black sites, rendition programs, torture, Abu Ghraib, pre-war distortion of intelligence, destruction of CIA torture videos — it is, in every case, the by-product of two forces: government whistleblowers and reporters willing to expose it.

Grand Jury Subpoenas such as the one issued to Risen have as their principal purpose shutting off that avenue of learning about government wrongdoing — the sole remaining avenue for a country plagued by a supine, slothful, vapid press and an indescribably submissive Congress. Mukasey has quickly demonstrated that he has no interest in investigating and pursuing lawbreaking by high government officials, but now, he (or at least the DOJ he leads) seems to be demonstrating something even worse: a burgeoning interest in investigating and pursuing those who expose such governmental lawbreaking and turning those whistleblowers and investigative journalists into criminals.

This is yet another example of this administration improperly using the force of law, i.e., investigation, prosecution and jailing of its critics, to cover its track. Risen is on his way to being Siegelmanned, which is exactly what I’m trying to avoid by remaining anonymous. Especially since I don’t have the resources of Simon & Schuster available to me like Risen does.

Greenwald added this in an update:

An emailer sums up the situation nicely:

So, let me see if I get this straight. The Congress issues subpoenas to former [and current] Bush officials to testify about administration conduct. Said officials ignore the subpoenas. Nothing happens.

Administration, via grand jury, issues subpoena, Risen is threatened with jail.

What’s wrong with this picture?

That’s rather accurate.

This is one of the few points from Greenwald with which I disagree. Anyone, whether a resident of Texas or not, can file a grievance against Harriet E. Miers. Furthermore, if you are an attorney licensed by the Texas Bar Association, you have an ethical obligation to report misconduct. Rule 8.03 Reporting Professional Misconduct, Texas Disciplinary Rules of Professional Conduct (large .pdf file).

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