Tuesday, April 22, 2008


Courtesy of our one-and-onliest colleague Avedon Carol: The National Lawyers' Guild wants Peter Arnett's son-in-law John Yoo, the man who concocted a legal justification for the Bush administration's policy of torture, to lose his job. His bosses at UC Berkeley law school, citing academic freeedom, claim they have no grounds on which to sack him unless he's committed a "criminal act which has led to a conviction in a court of law." We would not care to place a wager on the prospect of a conviction, but there's a pretty fair chance that Yoo has in fact committed a crime; as Scott Horton argues below, it may come down to a matter of timing:
It's not Yoo's ideas in an academic setting that give rise to his current problems but his conduct as a government lawyer. Yoo says that he was asked his opinion about technical legal issues related to interrogation and detainee treatment during wartime, and he gave it his best shot. He also argues that he strained to give policymakers and actors the greatest possible latitude in which to manage a difficult conflict. But he only advised and theorized; others took the decision to implement the program.

But Yoo's account of how and why the torture memos were crafted may not hold up. Congress is preparing hearings into the subject, and they have invited Yoo to testify. International law scholar Philippe Sands and other writers have punched holes in Yoo's claims about the facts. It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.

It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution? . . . .

According to Human Rights First, more than 100 people have died in U.S. detention in the war on terrorism. It documented 11 cases where the deaths resulted from coercive interrogation techniques, and others where there was at least some connection. Yoo insists that there is no relationship between the deaths and his advice, because he didn't set policy or carry it out, he merely offered a legal opinion. But had he refused to give the opinion that was sought, the program might have been suspended and some of those detainees might be alive . . . .

Is it right to say that lawyers dispensing bad advice in memos face no liability for what happens when people act in reliance on them? At the end of World War II, the U.S. took a different view in one narrow area. When the legal advice had to do with the treatment of detainees in wartime, the U.S. argued, lawyers had to adhere closely to the law or face prosecution. In one case, two German Justice Ministry lawyers were charged and sentenced to 10 years in prison for giving advice that allowed the creation of a special internment system for suspected insurgents. Their advice was close to that dispensed by Yoo.

The Bush administration came to Washington promising a culture of accountability. In this area, as in so many others, it has delivered just the opposite.
UPDATE: See also this (via Susie, Queen of Philly).

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