Balkinization: Why Yoo's Sincere Extremist Excuse Doesn't Work

Comments:

"It's difficult to know what Yoo was thinking, of course--any such showing will have to be inferred from his conduct."

There has been much reporting that puts his conduct into a proper perspective, including as reported by articles, books, and blogs.

An objective analysis, perhaps why "recommendations by the department's ethics investigators" [Washington Post article cited in last post] went the other way, surely appears to me (fwiw) to warrant a referral here.

But, as with the failure to have his law school investigate him [see this, part of a set of quite troubling CYA posts], we again are left with finger wagging.

How bloody impressive.

# posted by

Joe : 6:41 PM

Here's a retort of the OPR by Attorney General Michael Mukasey and Deputy Attorney General Mark Filip dated Jan 19, 2009. The OPR refused to release this letter with its report to Congress.

# posted by

Jordan : 7:13 PM

No, we're left with the necessity of prosecuting these disgraceful, murderous, criminals pursuant to 18 USC 2441 (war crimes). This report is just one more scam in an endless series.

# posted by

Charles Gittings : 7:54 PM

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# posted by

Henry : 9:10 PM

if we assume that Yoo is a competent lawyer--as there is every reason to believe--then he must have recognized at some level that his analysis distorted the law.

But must "some level" be a conscious level? If Yoo recognized solely at an unconscious level that he had distorted the law, then, for practical purposes, he did not recognize it. And, if he did not recognize it, then he doesn't know the difference between how he would like the law to be interpreted and how the law will likely be interpreted by a court, and he is incompetent.

A lawyer, however, may be highly competent in general but may be incompetent with respect to legal questions about which he has ideological or emotional blindspots. But, if that's the case with a lawyer, then the fact that his blindspots render him incompetent should not get him off the hook. If, by overcoming his blindspots, he would have the capacity to be competent, then he has an obligation to overcome them. One should not be rewarded for deceiving oneself. The answer to my opening question, therefore, is that Yoo is guilty even if he recognized his distortions solely at an unconscious level.

# posted by

Henry : 9:18 PM

"When these assertions are read together, a strong inference can be drawn that (Fill in the blank.) knew his analysis distorted the law but his ideological extremism led him to decide that the ends (fill in the blank) justified the means (distort the law)."

Sounds like the ordinary everyday practice of constitutional 'interpretation' since the days of the New Deal, to me. The only thing that differs is the ideology and the end in mind.

# posted by

Brett : 9:32 PM

Yoo shouldn't have been hired by whom? The cast of characters that pushed in after Bush was seated by SCOTUS in 2000? It is exactly because such incompetents and lunatics can get into the corridors of power that those with professional certification should answer to some ethical standards and practices that stop them from joining in or abetting the chicanery and misfeasance.

# posted by

Robert Levine : 9:47 PM

Margolis may have a different view of the seriousness of what you call the "patent weaknesses" of Yoo's work. He addresses Yoo's errors directly as evidence of incompetence and states his conclusions on page 65, beginning with, "Although Yoo and Bybee's errors were more than minor, I do not believe that they evidence serious deficiencies that could have prejudiced the client." He ends by saying, "Although the memos reflect errors, I do not find that the number and magnitude of those errors are sufficient to prove that You and Bybee violated Rule 1.1." This suggests he would take issue with your view that they would amount to incompetence no matter how they're explained. I suppose one could use less loaded language about ability to get your point across.

In line with the above, you may be misreading Margolis (who could have been more clear if I'm right). When he says he doesn't find a preponderance of evidence that Yoo intentionally or recklessly misled his client, he's apparently speaking within the framework of the standards of professional conduct, which he interprets to refer only to issues of serious and substantial wrongdoing. I'm not sure he means to imply Yoo didn't knowingly or recklessly stretch things at times; he may only mean that it didn't rise to the level of violating a standard of professional conduct. When he goes on in the same paragraph to say what you quoted, he's turned to the higher standards he expects of OLC lawyers.

So, Margolis might accept your point to some extent, though he might not put it the same way. (I think he might also return to the fact that the memos were written under tight time constraints, under what seemed great pressure of events, and with few other lawyers to confer with.)

# posted by

Sanpete : 10:24 PM

Yoo and Bybee are only "guilty" of having a different view of the law than the left legal community.

There is no evidence in the report of the often accused conspiracy between OLC and the White House to create a legal defense to CIA. None. Instead, the report admitted that Yoo followed his own personal analysis of executive power which he held prior to DOJ and teaches at Berkeley today. This is why the DoJ backed off from recommending formal disciplinary proceedings where they would have to offer evidence of actual wrongdoing and instead offered this underhanded attack.

The claim that Yoo and Bybee failed to offer independent analysis is specious and unsupported by the facts. Indeed, what got Yoo and Bybee in hot water. is their very independence from the prevailing belief in the left legal community that America is subject to international law as interpreted by the EU.

The claim that Yoo and Bybee failed to offer "balance" gets closer to the root of the complaint. Yoo and Bybee committed the "thought crime" of not citing to foreign law as controlling or even persuasive precedent concerning the American Constitution and the American torture and war crimes statutes. Indeed, Yoo flat out stated that such law has nothing to say on the issue of what the American torture statute means. Oh the heresy!

One would think that legal academics of all people would defend to the death Yoo and Bybee's ability to offer their unvarnished legal analysis without threat of sanction. Apparently, that belief in intellectual freedom only applies to leftists offering various radical legal theories in defense of al Qaeda and Taliban terrorists and not to rightists offering arguments in favor of the use of military power against those same terrorists.

# posted by

Bart DePalma : 11:03 PM

Margolis' "opinion" serves only to call his own competence and honesty into question. I wonder if he bothered to read the very first Yoo memo of 2001.09.25?

Read the last paragraph:

"In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. (32) In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

In short, there is only one branch of government and it is at liberty to ignore ALL of the laws entirely. If that's not incompetent legal advice, what is?

In reality it wasn't intended or offered as advice, it was a pretext for committing whatever war crimes Dick Cheney ordered. Everything that followed derived from that one memo, and the whole composed a criminal conspiracy that continues today. Yoo and Haynes were willing tools, Addington was driving the bus for Cheney, and all of them should be indicted and convicted for their crimes.

# posted by

Charles Gittings : 11:05 PM

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# posted by

Joe : 11:09 PM

Sounds like the ordinary everyday practice of constitutional 'interpretation' since the days of the New Deal, to me. The only thing that differs is the ideology and the end in mind.

Interpretation is unnecessary since every law and the Constitution is written clearly and words have only one meaning. We shouldn't attempt to disbar Yoo--that's thinking small. Since every citizen is capable of understanding the legal code, let's get rid of the legal profession entirely.

Oil change places: you are SO next.

# posted by

PMS_CC : 11:48 PM

Since it cites this post, this might be worthwhile reading. Seems M. has a history of CYA.

# posted by

Joe : 11:52 PM

I'd be delighted to disbar Yoo, but he'd have a lot of company if this was the criteria.

# posted by

Brett : 12:07 AM

For your consideration (there was no comment capability for the post from which this originally spun off):

http://insideoutthebeltway.blogspot.com/2010/02/heads-i-win-tales-you-lose.html

# posted by

Chris W. Martinez : 1:30 AM

From http://www.commentarymagazine.com/blogs/index.php/rubin/241366

Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings ”do not identify violation of a specific bar rule.” ( p. 12)

Can any critic of Yoo and Bybee find any action of theirs that is such clearly shoddy legal work as these two examples from the draft OPR report? What would be really fun would be to do a head-to-head of Yoo's opinions with those of previous OLC lawyers, looking for errors, omissions, and dubious arguments in each.

The question here is not whether Yoo's advice was good or bad public policy— we are supposed to be talking about legal malpractice. It’s dismaying how many people are willing to punish Yoo with no concern for whether he did anything against the rules. It’s enough to make you think that what liberals really care about is something else and not civil liberties.

# posted by

Eric Rasmusen : 9:15 AM

As usual, the real scandal is what's within the rules. That's why I said that I'd be glad to see Yoo disbarred, but he'd have a lot of company.

# posted by

Brett : 9:42 AM

Being wrong, even badly wrong, does not necessariy constitutcarcmnoe an ethical violation. Very smart lawyers do dumb things all the time. Consider Deval Patrick and the other very smart lawyers in the Civil Rights Division of Justice who took a position in the Piscataway case that was so bone-headed that the NAACP had to write a check on the steps of the Supreme Court to prevent a disastrous opinion. I personally support the Patrick et al. view of Piscataway from a policy perspective, but polcy advice and legal advice are miles apart -- especially with this Supreme Court. It is all too frequent that smart lawyers with deeply held views that are reinforced by their contact with like-minded idealogues give really, really bad legal advice.

# posted by

John Tanner : 10:43 AM

"It’s dismaying how many people are willing to punish Yoo with no concern for whether he did anything against the rules."

Who are these people? Sounds like you are letting a reasonable, or even shoddy, disagreement of the meaning of the rules suggest a high test is being violated, perhaps because you have a disagreement of policy or something.

# posted by

Joe : 11:55 AM

I realize that this is perhaps beyond the scope of your post, but to me the most troubling aspect of the Margolis decision is this: the "insanity defense" to a war crimes charge is now firmly established and easily available to all comers.

Step 1: Party intent on committing unambiguous war crime (herein, the "Cheney") begins interviewing lawyers.

Step 2: The Cheney finds a Constitutional Mad Hatter -- an attorney convinced that moon is made of green cheese, humans come from Xenu, and the auto da fe' is an appropriate interrogation technique for interviewing suspects (herein, the "Yoo").

Step 3: The Yoo presents the Cheney with a legal opinion based upon the Yoo's insane beliefs.

Step 4: The Cheney begins burning suspects at the stake.

Step 5: The Cheney asserts advice of counsel at his war crimes trial, and wins.

Step 6: The Yoo asserts his heartfelt belief that burning heretics is legal at his disbarment proceeding, and wins.

Thus the consequences of our legal system as capped by the Margolis ruling are that (1) there is zero accountability for war crimes, and (2) every bad actor now has overwhelming incentive to find the WORST lawyers possible.

Lovely.

# posted by

Blue Meme : 12:01 PM

Horsefeathers.

Yoo makes it clear (in his many interviews and writings), that in wartime, (a state of permancy, by design), that the president is (by Yoo's design), above the law, nay, that the president IS the law, the absolute law of the planet. This was a coup conspiracy, above and beyond merely conspiracy to apply color-of-law to war crimes.

# posted by

Unknown : 12:09 PM

cf: "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." ~~George W. Bush (Dec 19th, 2000)

# posted by

Unknown : 12:21 PM

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# posted by

Tara : 3:07 PM

@Charles Gittings, I'd like to see them prosecuted under 18 USCA 2340-2340A more than 2441. I think there are two benefits to this: (1) You're likely to set a stronger precedent about the extraterritorial rights and obligations of US officials and (2) the only defenses available to Yoo, et al., are the doubtful "it wasn't torture" or the ironic "Guantanamo actually *is* a US territory or possession." It also limits the wrangling over which protections the GTMO detainees were entitled to at the time of Yoo's writings since the existence of an armed conflict or "really, really bad guys" aren't defenses under 2340A.

# posted by

Tara : 3:09 PM

Hi Tara,

Well I'd be happy to see them prosecuted under 2340-2340A also, but that is secondary to 2441 IMO.

First, I want to vindicate the grave breach provisions of Geneva 1949, which were one of the major innovations added after WW2. That's 18 USC 2441(c)(1), and has the advantage of not getting into the distinction (if any) between torture and abuse, because abuse is an offense by itself.

Equally, I want them prosecuted under 18 USC 2441(c)(2), which makes it an offense to commit any violation of arts. 23, 25, 27, or 28 of the Hague IV 1907 Annex of Regulations ("HR"). Of particular interest is HR art 23[h], which states:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

That was one of the principal objects of Addington and Yoo's memo-writing enterprise. (See my blog article HERE for some further details.)

As for extra-territoriality I'm not understanding your point, since 18 USC 2441 applies to any US national or service member "inside or outside the United States".

But I'm certainly willing to have them prosecuted under both statutes, and others too -- e.g., murder, kidnapping, assault, etc.

Charly

# posted by

Charles Gittings : 4:57 PM

I don't think Yoo's past history, his sincerity, or that the quality of his analysis was poor is the point at all. Even if you accept some this this unitary executive claptrap, he offered support for policies that were illegal, unless you believe the president, using an undeclared war as an excuse, can do any damn thing he want's. It's illegal for an officer of the U.S. government to suborn torture and certainly it is a violation of treaty agreements to kidnap people on another country's sovereign soil. If they didn't cross some ethical, much professional, boundaries with that, then there's no point in standards and practices for a profession. We're not talking politics here. This is set against a long history in or country where no one ever pulled this kind of stuff. Manzanar was bad enough, but we didn't kill anybody or rip out toenails, or whatever else those amateur interrogators where doing. And when I call them amateur's, I know a little bit about the business of collection of information.

# posted by

Robert Levine : 7:42 PM

There are multiple problems with Tamanaha's analysis. And I say this, without regard to the fact that the good professor gave me a measly B in his Torts class, several years ago.

1) First, Tamanaha adopts the now-conventional jurisprudential approach of assuming that an interpretation of statutory and/or constitutional law consists in a prediction as to what a court will decide.

That's the common view, but I don't think Tamanaha can defend it. Tamanaha has written extensively on jurisprudence, and I'd like to see him try to defend the idea that the Executive Branch has no independent responsibility to interpret the law, or that such interpretation consists wholly in predicting the decisions of a judicial clerisy.

2) But let's say Tamanaha is right, and that Yoo's task was to guess the behavior of judges, some of whom are real twits. If so, then it looks like Yoo did a pretty good job; he guessed right! See the 2008 3rd Circuit case - Pierre v. AG of the United States - which interpreted Congress' anti-torture statute in Yoo-ian fashion, as requiring "the additional deliberate and conscious purpose" to inflict torture.

Now, at this point, Tamanaha's jurisprudential approach conflicts with his substantive legal views (and we all know how painful that can be.) If he says that the 3rd Circuit is wrong in its analysis of the statute, then that implies that the law is what it is independent of the judges, which would further imply that the Executive Branch is duty-bound to identify that law, irrespective of what the judge think. But if Tamanaha concedes that the 3rd Circuit - as the highest and most recent court to decide this issue - is necessarily right, that implies that Yoo is right, and Tamanaha wrong, on the issue of torture (under the anti-torture statute.)

I'd like, at this point, to personally attack most of the academics of the anti-torture brigade. This isn't an ad hominem, because the insult is an end in itself. The moral outrage underlying your purportedly legal analysis is grounded in a primitive approach to moral reasoning. It's the 10 Commandments approach to ethics; some actions are just intrinsically wrong, period. Thus the common pronouncement, uttered with sanctimonious pride: "We don't torture, period."

This approach is wrongheaded, as can be demonstrated by citing the many instances in which, e.g., killing people is not merely permissible or justifiable, but morally good. Maybe we'll think more clearly about torture when we clear away the a priori pronouncements, based upon emotion and ideology, and attempt to make our moral reasoning as complex as the choices we face.

Having said all this, I anticipate Professor Tamanaha reply: Based on the quality of your argument here, I can't believe I didn't give you a C or less.

Too late.

# posted by

Unknown : 9:48 PM

Brian,

Just to be clear, I base my analysis on Title 18, United States Code.

# posted by

Charles Gittings : 10:35 PM

I can't wait to see Brian's moral defense of rape.

# posted by

Mark Field : 10:38 PM

Brian, in the interest of moral goodness, I'd love to have the opportunity to torture you. I'd be interested to hear what you think of torture when I'm done witb you.

# posted by

Bartbuster : 10:44 PM

I'm also looking forward to Brian's denunciation of the primitive moral reasoning by which we denounce child molestors.

# posted by

Mark Field : 10:44 PM

Brian, The obligation wasn't to guess judges' future response, but to base his legal advice on relevant jurisprudence and advice the client (often times in this case that was the military or CIA, not Bush/Cheney) of all potential outcomes. When defining torture, this would mean at least taking account of relevant jurisprudence from the the TVPA, ATCA, War Crimes Act, etc. Instead, he pulled out a medicare reimbursement statute that suited his needs and ignored the rest. Perhaps justifiable if he was defending the WH before a court but Yoo wasn't acting as an advocate in these memos - he was acting as a counselor. Or at least he was supposed to be.

Charly, My thought on the extraterritoriality issue as that we already have jurisprudence showing that US officials who commit war crimes outside the US are criminally liable. It's also not a leap to understand that if we have laws governing our actions in armed conflict, and most of our armed conflicts occur outside the US, Congress intended this to constrain US actors outside the US during times of war.

2340a is different in that it's not limited to armed conflicts. It ostensibly constrains the US in all its extraterritorial activities, but it hasn't yet been applied against a US official (I believe it's still only been applied against Chuckie Taylor). It could set interesting precedents regarding the rights and obligations of the US's extraterritorial obligations in other areas of human rights beyond torture. I do recognize the uniqueness of torture on this b/c of the existence of this specific statute, but I think you could find a dwindling down of the presumption that the US's human rights obligations do not extend extra-territorially that you won't get just from the War Crimes Act.

Other than that, I completely agree w/ you. I hadn't really considered the importance of HR art 23(h) here, but I think you're right to place an emphasis on the importance of reinforcing that standard in any criminal prosecutions.

# posted by

Tara : 11:25 PM

when I'm done witb you.

I have a gub. Place the money in the bag.

# posted by

mattski : 11:27 PM

In the fictional film Judgment at Nuremburg, which depicts the trial of four German jurists accused of "legalizing" Nazi atrocities, the "sincerity" defense doesn't help. Yoo should not be let off for that or for incompetence either, but held accountable (via his law license) for his quick willingness to undermine human dignity in the most blatant way.

# posted by

Unknown : 11:39 PM

Yes, the decision does not provide John Yoo with a "clean bill of health." Rather, the decision serves as a "scarlet letter" for the balance of Yoo's life (and perhaps beyond). Yes, he has his tenure, there will be no disciplinary bar proceedings, but he is marked for life. Yoo can be expected to continue to defend his actions at OLC. But in the end he remains the patsy. We have recently heard from former VP Cheney on the virtues of torture and he is expected to come out with a book that no doubt will elaborate on his connections with torture, including via David Addington with Yoo. In addition, George W. Bush has a book in the works that also no doubt will address the torture issue during his presidency. There seem to be potential cleavages between Bush and Cheney relative to torture that perhaps may be explored in their books. Surely both Bush and Cheney, neither being an attorney, will rely upon legal advice from Yoo et al at OLC. So Yoo will continue to bear the burden as it would be difficult for him at this late date to point to perhaps political pressures applied by Bush/Cheney that resulted in the torture memos. But there are others with information that just may surface. Keep in mind that a chain is no stronger than its weakest link. And I somehow have my doubts that the books of Bush and Cheney will be coordinated on the issue of torture, especially since Bush at a point disavowed torture whereas Cheney continues in support of waterboarding and other enhanced interrogation techniques. In years to come, Yoo's torture memos will be rehashed every time torture is in the news. That's real punishment.

By the way, those defending Yoo (you know who you are) on the basis that he did nothing more than what many attorneys do is not only lame but weasely, suggesting perhaps their own deficiencies as attorneys.

# posted by

Shag from Brookline : 6:26 AM

TPMMuckraker has a 2/19/10 post by Zachary Scott titled: "DOJ Investigators Were Told Yoo's Emails Had Been Deleted" that references a footnote to the decision that perhaps Prof. Tamanaha might address with an addendum to his post.

# posted by

Shag from Brookline : 6:43 AM

The moral outrage underlying your purportedly legal analysis is grounded in a primitive approach to moral reasoning. It's the 10 Commandments approach to ethics; some actions are just intrinsically wrong, period.

Has the idea of ius cogens been downgraded from "legal" to "purportedly legal"? Some actions actually are intrinsically wrong, period. That what separates the Jesus from the Jack Bauer.

# posted by

PMS_CC : 10:35 AM

This comment has been removed by the author.

# posted by

Joe : 11:00 AM

Are "Brian" and "Brian Leiter" two different people?

# posted by

Joe : 11:01 AM

David Luban's post (2/22/10) includes not only a link to his Slate article on Yoo et al but one to TPM that provides several interesting related links, including the item noted in my earlier comment.

# posted by

Shag from Brookline : 3:10 PM

We're lowerin' the bar,
for John Yoo, yes we are,
We're lowerin' the bar,
for Yoo (but not for you).

We're lowering the bar,
so he won't be disbarred,
but I wouldn't hire him m'self
(nor would you).

Now you may be wonderin',
just what a guy's gotta do,
around here to get fired
-- is it enough for Yoo?

We're lowering the bar,
'bout as low as it can go,
the guy meant well, felt strongly;
that's good enough for Yoo!

We're lowerin' the bar,
for John Yoo, and by far;
the law ends meanin' nothin'
to Yoo (and you and you).

# posted by

jpk : 4:09 PM

OK Tara, I see what you mean now, and agree those are important considerations.

# posted by

Charles Gittings : 4:13 PM

"By the way, those defending Yoo (you know who you are) on the basis that he did nothing more than what many attorneys do"

Actually, it's not a defense of Yoo, it's an indictment of the legal community. As anybody who's gotten billed a half hour of an attorney's time for each page of a legal boilerplate he had his secretary photocopy could tell you.

# posted by

Brett : 8:37 PM

I'm not a lawyer, but even a layman's cursory review of American legal history would enable familiarity with Justice Robert Jackson's three categories of executive power that he famously described in the Youngstown Steel case. It is my understanding that John Yoo didn't refer to Youngstown in his memos. If that is true, this appears to be prima facie evidence that Yoo, a highly trained lawyer, purposely skewed his memos to meet the needs of Cheney, et al.

# posted by

Mike P : 8:58 PM

Poor Yoo and Bybee, they thought the worst was behind them but with this recent exoneration by Associate Deputy Attorney General Margolis they are again in the center of legal and moral ridicule. And so richly deserving it.

Anyway John Yoo seems of little use to Berkeley or in fact anybody in the country at the moment which given how much need is out there for creative legal memo writing strikes as a total waste of perfectly good legal talent.

So here is an idea, we should lend them to others, spread the democracy so to speak, to the Syrian DoJ for example. Given their reputation for "enhanced" interrogation techniques they could use a clever memo or two. Or North Koreans, same thing.

Unfortunately too late for poor Saddam Hussein which is a shame given how much "President has power to order massacre of an entire village" type of note would have been of use to him. See Halabja.

But it's not too late for our friends Israelis - it looks they need a memo or two and they need it fast.

So how about it, Mr. Yoo and Bybee?

# posted by

wg : 12:43 AM

Brett, you continue to accuse and when confronted come up with something lame about boilerplate, a half hour of billing, a photocopy, now as an indictment of the legal community, not as a defense of Yoo. Crapola.

# posted by

Shag from Brookline : 6:14 AM

Attorneys and their clients appearing before judges may sometimes wonder what the judge they are appearing before had accomplished to get his/her robes. Judge Bybee accomplished what for his appointment by the Bush appointment, in addition to his OLC role?

# posted by

Shag from Brookline : 7:54 AM

RPC 8.4 It is professional misconduct to
a) violate or attempt to violate the Rules of Professional Conduct,

Margolis writes:
" While I have declined to adopt OPR's findings of misconduct, I fear that John Yoo's loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice."

Doesn't Margolis's argument collapse upon itself if we simply and fairly paraphrase his rationale and add its logical conclusion:

"John Yoo was irresponsible. His rationale is legally incompetent and driven by his ideology. Because of the great power of his official position his analyses caused great harm. A reasonable fact-finder could therefore conclude that Yoo violated RPC 1.1 Competence because his conduct was grossly negligent.
- GWC

# posted by

GeorgeConk : 10:11 AM

Brett wishes to make more general points. I don't understand his New Deal line, since the Court did a lot of nefarious things before then, but I put that aside. Suffice to say, there are lawyers and there are lawyers:

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."

-- Dawn Johnsen, nominated as head of the Office of Legal Counsel.

Likewise, "an accurate and principled view of the law" in this context includes doing so when analyzing what accepted authoritative sources -- even if you find their reasoning specious, the point is not as an "advocate" to change them here -- held.

So, a general attack of legal interpretation doesn't necessarily deal with the specific issue at hand. None are without sin, but the sin (or wrongdoing) is simply not of the same caliber.

This too is a point -- we can rail against unjust criminal sentencing, but the death penalty is different from five years in prison all the same. And, thus different focus is placed on it.

# posted by

Joe : 12:02 PM

"Doesn't Margolis's argument collapse upon itself if we simply and fairly paraphrase his rationale and add its logical conclusion"

No, your paraphrase ignores Margolis' finding that Yoo's errors don't rise to the level required for incompetence under the rules of professional conduct.

# posted by

Sanpete : 5:54 PM

It is a bit too inside baseball for me to fully enjoy, but Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Prof. Tamanaha is recommended.

He discusses the book here. A taste:

I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.

The need for judgment, one that will open up some disagreement, is relevant here because he still believes that the "rule of law" is both possible and fundamental. This requires some minimum standards, and he cites research to show that judges as a whole do agree in most cases.

frequently there are legally “correct answers” and “incorrect answers,” as determined by prevailing legal conventions and practices

Thus, though some don't agree it has been violated, there is some minimum standard here that someone in Yoo/Bybee's place could have violated. I fear from reading some of the discussions that some disagree. That in effect they had a job to spin the law to meet the needs of the administration and to challenge them on that is the outrageous thing.

# posted by

Joe : 10:47 AM

Just wondering -- is there a documented instance of Yoo telling Shrub that the answer is no? That there's no way inside the law to do what Shrub wants?

# posted by

jpk : 12:34 PM

jpk,

Not that I'm aware of. The very first post-911 Addington-Yoo memo spells out their basic theory of everything:

THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM (2001.09.25)

See especially the conclusion:

"In light of the text, plan, and history of the Constitution, its interpretation by both past Administrations and the courts, the longstanding practice of the executive branch, and the express affirmation of the President's constitutional authorities by Congress, we think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

According to them, there is no law the President is obligated to respect in any degree. Laws are merely tools they use selectively to do whatever they want.

# posted by

Charles Gittings : 12:54 PM

Yes, if you want a wish for hella more wishes, that will do.

But my question remains: did Yoo ever say no?

In fact I'll expand it: is there any known instance in John Yoo's entire life where he told a client no, what you want to do is illegal, that's my advice as your lawyer?

Or is he an indulgence seller from way back?

# posted by

jpk : 1:54 PM

“Doug Cassel: If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

John Yoo: No treaty

# posted by

D. Ghirlandaio : 12:46 AM

I should have added:
Are treaties laws? It's a simple yes or no answer.
Is the president bound by the law? Again: yes or no.

# posted by

D. Ghirlandaio : 7:32 PM

My answers: yes and yes.

"[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur[.]"
Const. Art. II § 2, cl. 4.

"[The President] shall take care that the laws be faithfully executed[.]"
Const. Art. II § 3, cl. 4.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Const. Art. VI, cl. 2.

*

For more on treaties, see also my amicus brief in Kiyemba v. Obama.

# posted by

Charles Gittings : 10:24 PM

The questions weren't directed at you Charles, and they weren't written in ignorance.
I'm about as tired of your martyr complex as I am of S. Levinson's fixations of the structure of our government.

CRS report on Signing Statements [PDF]
-----------
Conclusion
Presidential signing statements have a long historical pedigree and there is no discernible constitutional or legal impediment to their issuance. While such statements have become increasingly common since the Reagan Administration and have increasingly been utilized by Presidents to raise constitutional or interpretive objections to congressional enactments, that increased usage does not render them unconstitutional. While the broad assertions of executive authority contained in these statements carry significant implications, both practical and constitutional, for the traditional relationship between the executive branch and Congress, they do not have legal force or effect, and have not been utilized to effect the formal nullification of laws. Instead, it appears that recent administrations, as made apparent by the voluminous challenges lodged by President George W. Bush, have employed these instruments in an attempt to leverage power and control away from Congress by establishing these broad assertions of authority as a constitutional norm. It can be argued that the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority. Accordingly, a robust oversight regime focusing on substantive executive action, as opposed to the vague and generalized assertions of authority typical of signing statements, might allow Congress in turn to more effectively assert its constitutional prerogatives and ensure compliance with its enactments.

Every congressman has fantasies of being president and they all act more in service to that dream of individual authority than in defense of the prerogatives of the chamber where they sit. The corruption of the Presidency is not solely the result of recent presidents and the perverse culture of the community of our elected representatives is not solely the result of there being 50 states.

You can't expect the courts to carry the weight that all should share. Neither can you expect that rules should carry all the responsibilities of people.

# posted by

D. Ghirlandaio : 3:49 PM

D. Ghirlandaio,

I don't have a martyr complex, and you can take your BS and shove it back where it came from.

Did you have some actual point in mind?

# posted by

Charles Gittings : 4:41 PM

D. Ghirlandaio speaks of "solely" and so forth. Passing through such hyperbole, in some part the last administration crossed the line and in some part prosecutors and the courts have a role to deal with it. And, signing statements et. al. in some part send a message to executive officials what the President wants, and thus are not meaningless drivel.

# posted by

Joe : 1:09 PM

" in some part the last administration crossed the line and in some part prosecutors and the courts have a role to deal with it."

You can't and shouldn't rely on the priesthood alone. "The unelected elite will save us!!"
Congress is not powerless unless it chooses to be.
It's going to be a long hard slog.

# posted by

D. Ghirlandaio : 3:26 PM

"You can't and shouldn't rely on the priesthood alone."

Since I said the courts have "a role," not the "sole role," you are speaking to the choir.

Also, Congress doesn't have the power to prosecute or reward damages pursuant to existing laws. On the level, yes, they are "powerless" to do some of the things necessary.

# posted by

Joe : 4:24 PM