Balkinization  

Saturday, April 12, 2008

Did Yoo and Bybee Violate Canons of Professional Ethics?

JB

Over at the Nation, Stephen Gillers argues that the Yoo-Bybee torture memos violated canons of professional ethics, in part because Yoo and Bybee were confused about who their client was:
How could two really smart guys authorize torture using "one-sided legal arguments" that have "o 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.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better, and that raises another issue, the most troubling. Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President's political agenda nor the authors' views of what the law should say can be allowed to slant the OLC's work. 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." Jarrett must hold the lawyers accountable if he means to restore OLC's reputation and vindicate the rule of law.

It's not enough, I think, to say that the client was not the President but the country. It was both the President and the country, or rather, it was the President as a constitutional officer of the country, who is sworn to take care that the laws be faithfully executed. But Gillers' response is that the advice Yoo and Bybee gave was so off the wall, so inconsistent with professional standards, that it failed both clients -- the country and the President-- even if it was precisely what the President wanted to hear, and indeed, even if Yoo and Bybee were set this task precisely to arrive at this foreordained conclusion.

Yet Sandy's point is well
is worth noting: The lawyers in FDR's Justice Department also stretched the law to the breaking point to get around an isolationist Congress, because they believed that the threat from Nazi Germany was dire. If Yoo and Bybee believed that the United States was under a serious threat of future terrorist attacks that only torture might prevent, why should we not excuse their twisting of law just as we today excuse the Roosevelt Justice Department?

Is the difference that the previous twisting of the law was somehow less outrageous?
Is it that Yoo and Bybee's judgments about the danger of a future attack were greatly overblown, or that their judgments about the necessity of torture to prevent such attacks were simply unreasonable? Is the difference that Roosevelt did not seek to authorize something evil in itself-- torture-- but only sought to help Great Britain resist Nazi aggression, and to push America closer to war, a war that was ultimately justified by history? But if so, does our conclusion that that Yoo and Bybee acted unethically ultimately depend on our assessment of the good or evil that President Bush's detention policies have had for the world? Or can we answer the question of their ethical conduct in isolation from that question, since, of course, we do not yet know what history's judgment will be?

Is the difference that Yoo and Bybee offered a general theory of presidential dictatorship and proclaimed a right to ignore Congressional laws when the President acted as Commander-in-Chief, whereas Roosevelt's lawyers made no such general claims? If so, the ethical problem is not the apology for torture but rather Yoo and Bybee's flagrant infidelity to the basic principles of our constitutional system of checks and balances. But in 1939 and 1940, could no one have leveled a similar charge at Franklin D. Roosevelt?

Finally, following along the lines suggested by Scott Horton, is the difference that Yoo and Bybee conspired to help the President and his aides commit war crimes, including violations of the Geneva Conventions; so that one who commits (or conspires to commit) war crimes necessarily violates professional ethical obligations? Did the lawyers in Roosevelt's Justice Department (or the lawyers who advised Bill Clinton that it was permissible to invade Kosovo) not equally conspire to violate international law? Is the difference then that the nature of the violations are different, that one is a grave breach of international human rights and the others are not?

Perhaps ultimately this may be where the difference must rest, for as Eric Posner and Oona Hathaway would remind us, presidents do not attend to every aspect of international law with equal scrupulousness; if we thought that advising presidents to twist or even ignore international legal doctrines was grounds for an attorney's discipline or disbarment, the line for sanctions and investigations would be very long indeed.

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.

Comments:

Jack, I am glad to see, from your last paragraph, that we are in apparent agreement here about the bearing any of this (informed) speculation about the legal status of Yoo's conduct has on his current employment. I assume no one informed about these matters has any doubt that Yoo acted for partisan political reasons. But imagine what would happen to the legal academy if making legal arguments for partisan political reasons were an offense meriting termination?
 

There's a nice discussion of this over at the Legal Ethics Forum as well (apart from a comment from yours truly): http://legalethicsforum.typepad.com/blog/2008/04/fire-john-yoo.html
 

"Corruption is the worst crime -- worse than robbery, arson, mayhem, worse than rape and murder. By starving law enforcement, it feeds these other crimes; it is the progenitor of lawlessness. More: through its example, it debilitates the conscience. It poisons our society; it poisons our souls. * * * The litigant who uses influence to affect the outcome of a case, and the judge who bends to that influence, are our most heinous criminals. How can we respect the law when we find calculated injustice in our halls of justice? And without regard for justice, without respect for law (brother though not twin), our civilization cannot function. Anyone who tries to fix a traffic ticket is damaging all of us."

-- Charles Rembar, The Law of the Land (NY 1980), page 299.
 

It is not clear to me that:
Yoo and Bybee conspired to help the President and his aides commit war crimes, including violations of the Geneva Conventions
is analogous to:
the lawyers in Roosevelt's Justice Department (or the lawyers who advised Bill Clinton that it was permissible to invade Kosovo) not equally conspire to violate international law?

Treaties (such as the Geneva Conventions) that have been ratified by the Senate are "the Supreme Law of the Land", as supreme as the constitution itself. "International law" is not. If FDR's or Clinton's lawyers advised violating a ratified treaty, then the analogy hold. What treaties do you believe could have been violated by the actions of FDR (or contemplated actions of Clinton).
 

I assume no one informed about these matters has any doubt that Yoo acted for partisan political reasons. But imagine what would happen to the legal academy if making legal arguments for partisan political reasons were an offense meriting termination?

Yoo should be fired not for making legal arguments for partisan political reasons, but for conspiring in torture and homicide (i.e., homicide by means of torture). How can students be asked to sit and listen to Yoo, let alone respect him as their teacher?
 

As to the first comment, who is basing their judgment on the tenure issue on his "partisan political reasons" in particular?

Doesn't really seem to be the driving factor of comments on this blog. But, maybe somewhere else.
 

Throughout most of the 20th Century, US defense policy rested on Mutually Assured Destruction. The President had to be ready to order a nuclear response against the Soviet Union that would kill hundreds of millions of totally innocent civilians. I think no scholar would claim that such an action would be legal under treaties in force or customary international law. Nobody may have asked for a legal opinion, however, since there was no available alternative and, if the option were ever used, there would be nobody left alive to worry about the legalities.

Still, I don't think that an acceptable legal, logical, or academic position is that mass murder is OK as long as you leave nobody alive to complain.

Lots of people debate the hypothetical "ticking time bomb" and the power of the President to order or condone torture, but I don't know how they can ignore the hypothetical "strategic nuclear exchange." Torture of one person is terrible, but what about the murder of a hundred million people? Yet that was, and still is, the basis for our entire strategic nuclear defense system.

It would seem the President does have some unpleasant powers that go beyond anything allowed by treaty or convention. I don't claim to know where they begin and end, but if you want to raise the issue formally, by raising formal charges against someone who took a position on the issue, then you have to be prepared to deal with the whole question and not just one piece.

Herman Kahn may have gotten the sense of the problem when he titled his book on nuclear strategy Thinking about the Unthinkable. This type of issue does not go away if you don't write anything about it, but on the other hand if any lawyer tried to justify the last 60 years of US defense strategy, he would probably end up with the same problems of Yoo. Except that nobody has died in a nuclear exchange yet.
 

Isn't one answer to the problem that Balkin identifies to say that Roosevelt's lawyers may have acted unethically too?

Remember, we are not talking about our eventual entry into World War II, which was perfectly legal, but rather possibly illegal things that FDR was doing before entering the war. And whatever one's opinion is of things like lend-lease, it doesn't seem to me that it had any real effect on the outcome of the European theater of the war, which was won by the combination of US and Soviet force on two fronts.

Given that fact, why is there a great need to defend Roosevelt-- especially given that Reagan did the same thing in Iran-Contra and it sure doesn't look justified to me.
 


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.

Yoo delivered bogus research; no analysis of presidential powers in wartime can ignore Youngstown.

Signing off on bogus scholarship is "unprofessional conduct." In this case the unprofessional conduct is exacerbated by the fact that it was performed to further the obvious aims and agenda of someone from whom the scholar was accepting payment, which makes him a hired gun or academic whore. Biochemists are paid handsomely to vouch for the efficacy/safety of drugs. And, uiversities fire them for doing so bogusly.
 

One of the big differences between the US executive and the UK executive is the vastly greater proportion of political appointments rather than career civil servants.

But an Attorney-General is in a different position to other members of the executive. While he may properly reflect executive policy on matters of discretion, when it comes to advice to departments of state, the political considerations must be subordinated to the need to give correct legal advice.

Otherwise how can the Courts continue to give to the AG the considerable degree of deference which is customary.

Government lawyers are also in a very different position to private client lawyers in one respect. When advising a private client, the advice will be privileged. But when there is judicial review of the legality of government action, the advice received is often relevant. So government lawyers have to write mindful of the fact that there is a much higher risk that their advice may be considered by a Court.

So, apart from the stupidity of assuming that these memoranda would remain classified, it does seem that there was a gross failure to comply with the duty to warn of the illegality of the proposed acts and there is a case to answer that the line was crossed and the writers became accessories.

The position is akin to that of the Reich Justice Ministry officials tried and convicted after WW2.

Bagram, Guantanamo and extraordinary rendition differ from the rounding up of Jews and resistants and shipping them to Belsen, only in that the transport was by CIA air rather than by rail and in that the numbers of victims were far greater.

"I was only following orders" is not a defence.
 

Jack (and Sandy): These are great posts, but the mentions of FDR need tightening. Which FDR legal advisers/which pieces of advice given when are the arguable analogies to the Yoo/OLC torture, etc. memos? If these are shorthand mentions of FDR's summer 1940 "Destroyer Deal" with Churchill, I think it's relevant to note that Ben Cohen, et al.'s lengthy argument explaining the legality under neutrality, etc. laws of this proposal was published in advance in the NYT, and that AG Robert H. Jackson's positive legal opinion given privately to FDR shortly thereafter was released publicly by the President within a few weeks, at the time he announced the deal to Congress and the world (and as he was seeking reelection to an unprecedented third term, by the way). In terms of lawyering, legal analysis, "taking care" and political accountability, all of that seems relevant to understanding at least this FDR episode as a precedent of legal work and government conduct that President Bush, Professor Yoo, et al. could have followed but distinctly did not. (For more, see Jackson's account of the Destroyer Deal in That Man: An Insider's Portrait of Franklin D. Roosevelt (2003).)
 

Prof. Balkin wrote: "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."

Yoo and Bybee could not be convicted for participating in a "conspiracy to commit war crimes." No such crime exists in international law (see Hamdan), and the Military Commissions Act of 2006 -- which does include conspiracy -- does not apply to U.S. citizens. The appropriate charge would be "joint criminal enterprise."
 

See the speech of Lord Hoffman in a case on whether evidence obtained by torture is admissible in English law [2006] 2 AC 221 :-

"On 23 August 1628 George Villiers, Duke of Buckingham and Lord High Admiral of England, was stabbed to death by John Felton, a naval officer, in a house in Portsmouth. 35-year-old Duke had been the favourite of King James I and was the intimate friend of the new King Charles I, who asked the judges whether Felton could be put to the rack to discover his accomplices. All the judges met in Serjeants' Inn. Many years later Blackstone recorded their historic decision:
'The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England'.

That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it....

[Why the exclusionary rule ?
Is it to discipline the executive agents of the state by demonstrating that no advantage will come from torturing witnesses, or is it to preserve the integrity of the judicial process and the honour of English law? If it is the former, then of course we cannot aspire to discipline the agents of foreign governments. Their torturers would probably accept with indifference the possibility that the work of their hands might be rejected by an English court. If it is the latter, then the rule must exclude statements obtained by torture anywhere, since the stain attaching to such evidence will defile an English court whatever the nationality of the torturer. I have no doubt that the purpose of the rule is not to discipline the executive, although this may be an incidental consequence. It is to uphold the integrity of the administration of justice....

It appears to be the practice of the Security Services, in their dealings with those countries in which torture is most likely to have been used, to refrain, as a matter of diplomatic tact or a preference for not learning the truth, from inquiring into whether this was the case. It may be that in such a case the Secretary of State can say that he has no knowledge or belief that torture has taken place. But a court of law would not regard this as sufficient to rebut real suspicion and in my opinion SIAC should not do so."

So now the English Courts have to regard with suspicion evidence in terrorism cases emanating from the US Government - that's Yoo's contribution to the honour of the USA.
 

So now the English Courts have to regard with suspicion evidence in terrorism cases emanating from the US Government - that's Yoo's contribution to the honour of the USA.

# posted by Mourad

That's one of the most infuriating and painful facts of this case. And it's certain we've yet to see the full extent of the consequences for my country flowing from that memo, and the gov't that requested it, and provided it. And from the damage done to human beings who were not adjudicated guilty of anything defined in law as a crime.

What we more and more see is an accurate portrait of the vengeful, vindictive little pr*ick that is G. W. Bushit, and his gleeful preference for going after those who can't fight back.
 

"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. "

The entities with primary responsibility to determine whether Yoo committed malfeasance and/or misfeasance (two of the three age-old justifications for revocation of tenure) are the Dean of UC Berkeley and the Faculty Senate thereof. There is no reason for them not to investigate, unless they feel the matter is not yet ripe (because they expect more evidence to come out soon).
 

Yoo was on the Daily Show today. He explained that he "was the President's lawyer".

Apparently he's still confused on who the client was.

So, this is who teaches law at Cal?
 

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