DeLong Smackdown Watch: John Yoo's Torture Memo and Academic Freedom

A commenter, Wetzel, writes:

You have placed Professor Drumond in a position where to initiate an action in defense of a thousand year tradition of law against, torture he must push up to the line, and maybe cross the line into an improper form of inquisition. The question of your standing, and the Senate's standing, is really important, I think, to interpreting the rationale of his reply.

For us who are outraged over what Yoo and the others have done in our name, his reply seems like a really thin gruel. I think he is probably taking the right approach, unfortunately. Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry.

There is another tradition in law going back even further than prohibition of state torture governing the standing of complainants in proceedings. The question of standing to speak is a settled wisdom that is a first order concern of any parliamentary organization. In the light of this, Dr. Drumond understands the limitations of his position. The controller of the floor must withstand those who would advocate the parliament assume a role for which it was not intended or proper. Obviously the introduction of matters of professional misconduct by peers within a university against each other to the floor of the Senate for debate must involve the questino of the standing of the complainant. Certainly it is not permitted for one faculty member to initiate an inquiry by the Senate against another faculty member as an individual Professor, and if there were such a process it would certainly need to be extremely circumspect and deliberative before even the first proposal of inquiry were public, no matter how egregious the complaint. I imagine Professor Drumond is a bit peeved that you do not seem to understand the dangers of Inquisition, because if you did then you would understand you have put the Inquisition on him, because many readers will see his reply simplistically and view him as Kafkaesque, cowardly, or participating in the banality of evil. The ability of a university administrator to accept this perception of their bland, indifferent replies as a bad thing is frankly sacramental.

Because the seriousness of John Yoo's Torture Memo extends to criminal behavior, I feel that an inquiry at the university level, especially at this early stage, is not proper because there would not be proper rules of evidence and processes ensuring objectivity and transparency. In a Berkeley inquisition, how would evidence of law breaking produced through the inquiry be referred to the Justice Department? Although I suspect that Professor Drumond would probably want to see Cheney, Yoo, Bush all at the Hague like the rest of his do, he modulated his reply to even have the not too diplomatic mention of the word 'defamatory', which is his way of kicking your shins a bit for catching up the Senate in the overall legal crisis of having a criminal in the White House. It is beyond their scope. I think you should not hold the letter against him because it is written to be exactly bland and imperturbable to protect the Senate against becoming an inquisition, which is a first order responsibility.

I think Wetzel's critique is easy to answer.

First I genuinely think a fact-finding inquiry would be useful. At what point violations of intellectual integrity become grave enough to warrant some kind of sanctions--that is not a question I know the answer to. I think that there is a line that should not be crossed, and that some form of responsibility for line-crossing would be a good thing, but I am not at all sure where the line is or what the sanctions should be. And my first response as an ineffectual liberal academic is to say that we should try to discover what the facts are and what we think about them by talking about them, publicly.

Wetzel says, essentially, that it is impossible to have a fact-finding inquiry into John Yoo's Torture Memo because the facts have an anti-Yoo bias:

Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry...

Thus Wetzel believes that any such inquiry must turn into an Inquisition, rather than (say) into a vindication of Yoo's actions (and legal theories) or into a rough consensus that Yoo faced painful dilemmas and dealt with them like a responsible adult. And I think that Wetzel suggests that if the facts were not so biased against John Yoo--did not suggest a possibility of criminal culpability that makes the Republican ex-chief of staff for Secretary of State Colin Powell suggest that Yoo not travel to western Europe ever again--then we could have a fact-finding inquiry.

I think there has got to be something wrong with any "it's unfair because the facts are biased!" position. Wetzel's position seems to me to be one such. It is not the case, mind you, that I am dead certain of what is wrong with Wetzel's "it's unfair because the facts are biased!" position. But I am dead certain that there is something wrong with it.

And I would like to know--coolly, factually, dispassionately--the answers to the following questions:

• In 2000, John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson. Is it possible for an honest and sane lawyer to believe that and also to believe the doctrines Yoo set forth in his Torture Memo?

• Does the omission of any discussion of the Youngstown case from John Yoo's Torture Memo cross a legal line and violate the professional duty of a lawyer to give advice about what the law is--not about what he thinks the law should become--to his clients?

• Consider the arguments of the Torture Memo--arguments about which Georgetown's Marty Lederman writes: "I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest..." Do these arguments rise to a level of misconduct equivalent to that of the misrepresentation of sources in other disciplines?

• Did John Yoo cross the line at OLC and become not just an advisor but an implementer, and thus a member of a conspiracy to commit acts of torture?

• Is there an academic freedom safe harbor, according to which all deeds and writings while not at the academy are irrelevant to whether one meets the intellectual standards of inquiry, scholarship, honesty, and honor that must be maintained for continued membership among the faculty of the university?

Originally I had two more questions:

• Was John Yoo's role in the Bush administration confined to the justification of torture only in "ticking bomb" situations in which the plea of necessity can be made (whether or not it is accepted)?

The answer to this is "no." John Yoo's role was to argue for the power to torture in routine bureaucratic cases--torture of people many of whose factual guilt and ability to threaten the national security of the United States was not only doubtful but extremely unlikely.

• Have John Yoo's actions strengthened the national security of the United States?

The answer to this is also "no." His actions have weakened it.

Comments

[Joe S.]

I'll give Brad's questions a try:
#

Q1. In 2000, John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson. Is it possible for an honest and sane lawyer to believe that and also to believe the doctrines Yoo set forth in his Torture Memo?
#
A1. Sure. If an honest and sane lawyer can believe in the Torture Memo (I'm not sure about this), it is easy for the lawyer to believe Clinton exceeded his powers. The Torture Memo says that the President's Article 2 powers are plenary, notwithstanding statute law. But possessing plenary powers does not necessarily mean you can delegate them to just anybody. This is an old principle in corporate law.

Q2. Does the omission of any discussion of the Youngstown case from John Yoo's Torture Memo cross a legal line and violate the professional duty of a lawyer to give advice about what the law is--not about what he thinks the law should become--to his clients?
#
A2. There is no obligation to give clients advice about what the law is. There is an obligation to avoid abetting a client's crime, but that's a different thing.

Q3. Consider the arguments of the Torture Memo--arguments about which Georgetown's Marty Lederman writes: "I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest..." Do these arguments rise to a level of misconduct equivalent to that of the misrepresentation of sources in other disciplines?
#
A3. Jesus, Brad, do you want to put all litigating lawyers out of work? They do this stuff all the time. And they're supposed to! It's not misconduct for them; it is zealous advocacy.

Did John Yoo cross the line at OLC and become not just an advisor but an implementer, and thus a member of a conspiracy to commit acts of torture?

Here, I finally agree with Brad. This is the problem with Yoo. It is not so much that he is a bad lawyer; he is a torturer.

[jerry]

While I think Yoo should 1) be disbarred and 2) placed on trial, I am dismayed with the thought that UC Berkeley can do nothing until that occurs. Lack of Investigateion, Charges or Trial is a nice trump card, especially given this administration.

Is it true that in no other matters involving faculty and the school, or students vs. faculty, or students vs. the school, that UC Berkeley does nothing out of fear of a) defamation, or b) infringing on someone's rights? FIRE (thefire.org) gives UC Berkeley a "speech code" rating of yellow, which suggests to me that UC Berkeley is not always so careful.

And I've I'd said before, if the UC Berkeley Law School cannot put together a civil rights respecting investigation, then they should just shut down.

[Anderson]

"There is no obligation to give clients advice about what the law is."

That's nonsense, *when the client has asked for your advice and you're offering it.*

Which is the (ostensible) case here. I say "ostensible" b/c it appears the memos were fig-leaves for predecided acts.

But Joe S's notion that, in rendering advice on Topic X, a lawyer has no professional obligation to acknowledge the leading authorities on that topic ... well, invective fails me.

[MobiusKlein]

I have been, as a student, subject to UC internal 'fact finding' and punishment at the same time as being subject to real world law enforcement for the same offenses.

If this kind of justice suffices for students, should it not suffice for professors?

[Joe S.]

Anderson,
Thank you for the word "ostensible." You are correct. The client was not asking for advice; the client was asking for a fig-leaf. Lawyers provide fig leaves all the time.

A lawyer's obligation to acknowledge the leading authority is relevant (if the lawyer knows about it), but only indirectly so. The client was asking Yoo whether torture was a crime. Yoo said "no." This makes Yoo an aider and abetter of the crime if:
1. Yoo knew in fact that torture was a crime. One can infer this from the content of the torture memo; and
2. Yoo knew that his exculpatory arguments were bullshit. One can infer this from his failure to cite Youngstown Steel, and his certain knowledge of this case.

I don't understand why everybody wants to make a legal ethics case of this. Yoo is a torturer, at least in terms of moral and criminal accountability. This isn't enough of a condemnation for y'all?

[Mark Field]

"There is no obligation to give clients advice about what the law is."

Actually, the whole purpose of OLC is to tell the President and the Executive Branch what the law is (not what it should be, or could be argued to be, what it IS). The standards for that office are explained in detail at http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf

"But possessing plenary powers does not necessarily mean you can delegate them to just anybody."

Some powers are non-delegable. But that just makes the argument worse for John Yoo. Why is it that the CinC duty is non-delegable, but the duty to execute the laws IS delegable?

"Jesus, Brad, do you want to put all litigating lawyers out of work? They do this stuff all the time. And they're supposed to! It's not misconduct for them; it is zealous advocacy."

While there's some truth to this, there are limits to this. See, e.g., Rule 11, Federal Rules of Civil Procedure. In any case, your response here depends on an assumption that Yoo was writing advocacy memos instead of "state of the law" memos. As I said above, that assumption is not true.

[Anderson]

"One can infer this from his failure to cite Youngstown Steel, and his certain knowledge of this case."

Since you see that this failure makes his work so suspicious that we can agree it's garbage, I have to infer that you're being tongue-in-cheek in your first comment on the thread.

My apologies -- my irony detector is in need of batteries.

[Joe S.]

Mark Field,
I was a bit too compact with my delegability argument. A CEO can delegate things to employees that cannot be delegated to competing corporations. By analogy, an omnipotent President (sez Yoo!) might not be able to delegate US sovereignty to perfidious Albion, even though the President may be otherwise unconstrained in HIS exercise of sovereignty. Sovereignty is not delegable to other sovereigns. I don't think that this is a compelling argument, but I think most lawyers would recognize it as a respectable one.

You are correct on the OLC point. But I was responding to Brad, who I think was referring to generic legal ethics, not the special responsibilities of the OLC.

Anderson,
I'm not being tongue-in-cheek. I don't think that Yoo's sins were in his legal ethics, and I will defend him on those grounds. I'd still happily ship him off to Florence, CO, to spend the rest of his life meditating on the nature of moral responsibility. That's what should be done to torturers; it's a bit excessive for unethical lawyers.

[Emma Anne]

If I might just quote from a recent post of yours:

---
PHILIPPE SANDS: I think it goes to the top.... I'm not on a witch hunt. I'm not saying that there should be a campaign of investigation and prosecution and sentencing, and conviction, and so on and so forth. What I'm saying is let's start by sorting out the facts. Once the facts have been sorted out, let's see exactly what they say, and it will be for others to decide what needs to be done. But until that's done, you can't close on the past and you can't move forward....
---

I honestly don't know what Wetzel is on about. His use of "inquisition" reminds me of people who use "fascist" to mean "governmental actions I don't like." No, It has a meaning. And "inquisition" doesn't mean "a hearing I don't like." It, too, has a meaning.

[James Wimberley]

Brad: you are getting into a muddle over where the Yoo thread is - here or in the ad hoc blog? My suggestion: have all the new substantive posts and comments in the ad hoc blog, and just two-line teasers in the main blog, with links, but with comments disabled.

[Roger Bigod]

My understanding of the process here is that the Senate has no power to terminate Yoo's employment, much less apply any criminal sanctions. Comparing it with the Inquisition seems to be out there in Gamma Quadrant. Yoo is prefectly free to ignore the inquiry or to selectively refuse to answer questions. All the Senate can do is issue a general report or to direct a letter to the administration suggesting that Yoo be fired. It wouldn't affect Yoo's position in any future criminal proceeding, because there'd be nothing to subpoena.

I suppose Yoo could take the position that to avoid censure by the Senate he would feel coerced into conceding matters of fact that could fall within his Fifth Amendment rights in a criminal proceeding. But that's really pushing the civil libertarian arguments very far. Certainly, it's a few Iron Maidens short of an Inquisition.

Drumond didn't commit sacramental blandness. He was preoccupied with trivia. His biggest worry seemed to be that his inaction would be taken as an indication that Boalt wasn't a caldron of vibrant intellectual discourse, and therefore inferior to those snooty schools it would be unbecoming to mention by name, but they start with H and Y, maybe C. What he doesn't seem to notice, is that the memo is a public event, and Berkeley's behavior is taken as an endorsement of it.

Or perhaps he's just worried that influential donors will withold funds if Yoo is even criticized. We rarified, metalevel thinkers like to refer to this as the banality of prostitution. But it may not maxinize value to the university in the long run. What Berkeley really needs is a good bookkeeper.

[Roland Stephen]

Joe S. has it right, I think. Yoo was a principal, not counselor, a torturer not lawyer.

[Cal]

Boo hoo hoo for poor John Yoo. He knew damn well what he was doing. He wrote a memo, so that BushCo could do what they were going to do, so that they could argue about the legality later. We relied! We relied! They would yell wide-eyed into the microphones. Let the argument make its way through the legal process and, by the way, our lapdogs are in the majority of the Supreme Court, see Bush v. Gore. By failing to differentiate Youngstown, let alone failing to mention it at all, was not merely an ethical breach, and a breach of his standard of care, it was an immoral act. Democrats should not shy away from discussions of morality on this point. By leaving it in the legal arena, it just plays into the hands of the pinheads who encouraged and corrupted Yoo and who support BushCo's policy of torture. This is a moral issue. Republicans love to talk about morality. Let them answer the questions. Let them say electrocuting someone's testicles is torture but drowning someone within an inch of his life is not. Then add the layer that there may not even be a rational or reasonable basis to engage in such conduct toward a specific detainee. All this handwringing is besides the point. The legal arguments will evaporate, when they are scrutinized under the light of the moral issues.

[karen marie]

dear mr. delong:

i think your points are good but you may have missed what i believe wetzel's main point is: procedurally, he believes, you are asking the wrong person.

assuming that "the rule book" is still in effect, his point is valid. unfortunately, there are more and more pages missing from "the rule book" and pages which still exist have been so overwritten as to make them open to wildly different interpretations.

although his "parliamentary procedure" argument has merit, your argument, even if looked at only on the limited question of "is there an academic freedom safe harbor," trumps his.

but i felt sorry for wetzel after reading your post. you sounded a little more peevish than i think may have been justified.

[Emma Anne]

Karen: "dear mr. delong:

i think your points are good but you may have missed what i believe wetzel's main point is: procedurally, he believes, you are asking the wrong person.

assuming that "the rule book" is still in effect, his point is valid. unfortunately, there are more and more pages missing from "the rule book" and pages which still exist have been so overwritten as to make them open to wildly different interpretations."

Ah, that makes at least some sense. I really was not getting what Wetzel was saying. But I still strongly disagree with this. Saying that the faculty ought not to investigate, because there is another institution (such as a grand jury) which ought to investigate causes two problems.

(1) The other institution isn't going to investigate. Therefore the responsibility would be avoided by everyone.

(2) The faculty has an interest in maintaining its own integrity and reputation. Just as someone can be both prosecuted and sued, it may be appropriate to prosecute Yoo, disbar him, and file a report saying he isn't up to snuff as a professor. I maintain that it is appropriate.

Oh and if Wetzel doesn't want testy responses he could ease up on the "inquisition" talk.

[Emma Anne]

Roger Bigod: "Certainly, it's a few Iron Maidens short of an Inquisition."

LOL, good one.

[Emma Anne]

Anderson: "But Joe S's notion that, in rendering advice on Topic X, a lawyer has no professional obligation to acknowledge the leading authorities on that topic ... well, invective fails me."

Yeah, JoeS and I have been around about this before, and we still disagree strongly. But I do agree with him that Yoo is an abetter of torture, and being an unethical attorney is small potatoes compared to that. But then they got Al Capone for tax evasion, so . . .

[Joe S.]

Emma Anne,
Have hope. Mark Field did succeed in reminding me that Yoo was behaving improperly for an OLC attorney. Maybe I'll eventually come around on general legal ethics . . .

[Anderson]

Joe S., it's simple: your client says, I'm thinking of doing X, would you please write me a memo on whether I can do X.

As his counselor, it makes no difference to you whether he's really going to do X anyway, or genuinely wants to know whether X is legal. You're his lawyer, and your "zeal" for your client, IN THIS CONTEXT, means doing your level best to figure out whether a case can be made for X.

You research X, and it's clear that any analysis of whether X is legal will turn on the interpretation of a widely acknowledged Supreme Court decision. The apparent result seems unfavorable for the legality of X, but perhaps you can distinguish X sufficiently.

However, your memo for the client ignores that decision, ignores any rule announced by that decision, and finds that X is probably legal based on your own cobbled-together theory that ignores the existence of that decision.

And you want to tell me that's not unethical, if not malpractice?

There are other problems with Yoo's memos besides Youngstown -- he misrepresents at least one of the cases he *does* cite, and fails to notice that courts interpreting an int'l treaty might very possibly look to int'l law to do so -- but that will suffice.

[Joe S.]

Anderson,
I can't accept your hypo, because you don't, either. Up-post, you claimed "I say "ostensible" b/c it appears the memos were fig-leaves for predecided acts." I agree with you there, so cannot agree with your hypo. Yoo wasn't giving legal advice; he was writing an advocacy memo. Therefore, your hypo--constructed around legal advice--does not correspond to Yoo's role. Advocacy memos are improper behavior for an OLC attorney (as he was then), but are ordinary behavior for an ordinary practitioner.

In the ordinary context, an advocacy memo is written to persuade a third party (court, regulator, potential litigant) that the recipient was acting under legal advice. It is not directly submitted to the third party, so is probably ethical, even if it omits an on-point case. (I might be wrong on this, but I doubt that any attorneys have been disciplined for advocacy memos that fall short of aiding and abetting crimes.)

If the advocacy memo is a legal howler, the third party will ignore it. If it makes a competent case, the third party is likely to go easy on the recipient, even if the third party disagrees with the memo.

OLC memos are different. They are get-out-of-jail-free cards. Therefore, OLC attorneys are held to higher standards. But these higher standards are not those of legal ethics. Legal ethics is state law, which does encompass prosecutors. But OLC attorneys are not state officials, and it is no surprise that their higher standards are not articulated by the rules of legal ethics.

[Mark Field]

Joe, I see two problems with your analysis. First, I'm pretty sure the CA Bar rules operate anywhere I act as a lawyer. If I steal a client's money in another state, that still violates the CA rules. I don't know how PA (that's where Yoo is licensed) handles it, but I suspect it's similar. For this reason, I think that Yoo WAS bound by the standards of legal ethics. However, this is surely a proper issue for someone to consider as part of any investigation.

Second, it seems to me there's an ethics problem even under your assumptions (which I'm inclined to share, though the facts aren't known in full). If Yoo writes a memo which others, whom he knows intend to rely on it, think is a "state of the law" memo, but which is, in fact, an advocacy memo written for a sordid purpose, then that deception on his part seems pretty likely to constitute an ethical violation.

Now, you might say that Yoo and the recipients were all in on the conspiracy and knew what he was up to. In that case, of course, there's "only" a conspiracy to commit torture and no ethical violation. I doubt, though, that anyone, including Yoo, would admit to this factual pattern merely to avoid the ethics problem. He, and they, would have to pretend he wrote a "state of the law" memo because that's the only way it could serve as a "get out of jail free" card, and the only way he could defend against the conspiracy to torture charge.

[smaug]

"In 2000, John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson. Is it possible for an honest and sane lawyer to believe that and also to believe the doctrines Yoo set forth in his Torture Memo?"

Actually, yes. The analogy would be to J.S. Mill's argument that a person does not have the authority to sell themselves into slavery ("The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom"). For Yoo, and other hyper-sovereigntists, the president's authority as commander-in-chief does not permit him to relinquish command of US forces to a foreign commander. He cannot command to not command. It is a constitutional duty to command.

[I don't see that. He can command that the soldiers obey General Jackson--and he can revoke that command at any moment.]

[Anderson]

What Mark said. Yoo insists that he wrote a state-of-the-law memo. Judging him by that, he's incompetent. Judging him by the real motive, he's a criminal.

So, incompetent, or criminal? I would think that a real law school would not have to trouble itself with ascertaining which is which, where the issue is Yoo's entitlement to teach future lawyers.

[Joe S.]

Mark,
I agree with you that Yoo was bound by the standards of legal ethics while he worked with the OLC. I'm just not sure he violated them. Legal ethics speaks to the special role of prosecutors, but not the special role of OLC. Any violation of legal ethics would be a general one: addressed to Yoo's role as counselor or advocate. And I don't see it, with one exception discussed at the very end.

To address your other point, I've never seen a generic ethical problem with deception. Isn't a defense lawyer with a guilty client trying to deceive the jury? The ethical problem is with falsehoods. There is a limited exception for tribunals, to which a lawyer owes a greater duty of candor. This parses fairly narrowly, but definitely includes failure to cite a materially adverse case, such as Youngstown Steel. Question: is this applicable to the function of an OLC lawyer? Damned if I know. You'd have to construct the "tribunal" by analogy. It seems strained to me.

Based on established principles of law and the clear evidence contained in the memo itself, Yoo is a torturer. Torture is a grave offense. It takes fairly aggressive reading of the law to make Yoo an ethics violator. In comparison to torture, this is a bagatelle. Why stretch the law to find a murderer guilty of spitting on the sidewalk, when the murder case is quite clear? (Of course, a lawyer who helps commits a murder in his role as lawyer is also an ethics violator, but who cares? Such a lawyer belongs in the pen--disbarment is a mere cleanup job.)

[Ken Muldrew]

"Did John Yoo cross the line at OLC and become not just an advisor but an implementer, and thus a member of a conspiracy to commit acts of torture?"

The Esquire transcript shows that John Yoo wrote an OLC memo, on Sept. 11, 2001, on the very day, stating that it was legal for the executive branch to issue orders to the military to shoot and destroy American commercial airliners in flight. Although the actual content of the memo is still classified, it stands to reason that this memo is exculpatory to the Vice President since he is the only person who actually issued such orders (the President was reading to a grade 2 class and obviously this attack did not reach the level of seriousness that would be required to disturb him while doing such important work). He was Cheney's "go-to" guy in OLC.

Clearly John Yoo was in OLC as a member of a conspiracy to commit broad and continuing violations of the law.

[Anderson]

"The Esquire transcript shows that John Yoo wrote an OLC memo, on Sept. 11, 2001, on the very day, stating that it was legal for the executive branch to issue orders to the military to shoot and destroy American commercial airliners in flight."

Well, actually I'm not real sure he was wrong about that, but I take your point about the after-the-fact issue.

Certainly, if the executive believes a plane is hijacked, is about to be crashed into a skyscraper, and is otherwise unstoppable, shooting it down over cow country or the ocean seems a reasonable, though terrible, decision.

[smaug]

"[I don't see that. He can command that the soldiers obey General Jackson--and he can revoke that command at any moment.]"

But the president cannot command Gen. Jackson, that's the problem for the hyper-sovereigntists. I'm not saying that the argument is right, though there is point at which it might be (can the president lawfully command the entire US armed forces to follow the command of the Sultan of Brunei?) The president can command them, but he has to follow Congress's laws...

[Except that he doesn't, according to Yoo, have to follow congress's laws about the treatments of captures and the regulation of the armed forces. That's the inconsistency.]

for the raising of the armed forces and the appointment of officers, which also requires Senate consent. Gen. Jackson is not part of the US armed forces; he is not commissioned by the US; he was not appointed by and with the advice and consent of the Senate.

Yoo and other "unitary exec." believers do not argue that the Executive has unlimited powers, only unlimited *executive* powers except for clear Constitutional, but to regulatory, limits.

[Ken Muldrew]

Anderson, you are right that someone has to issue that terrible, though necessary order, and it has to come from the executive. The strange thing about it is that Cheney wasn't able or willing to pull the President out of his reading assignment, that he then issued the order himself and (at the same time on a day that should not have been amenable to a "cover your ass" mentality) had his minion in OLC issue legal cover for this action. Not wanting to disturb the President is strange in many ways, but the business with Yoo is strange only because it was done on September 11. What the hell? That could have waited until September 12 at least. What was Cheney thinking when he took time out to tell Yoo that he needed legal cover for shooting down commercial jets, that he need it NOW, and that the memo was to be classified. That Cheney went straight to Yoo on Sept. 11 shows that Yoo was part of the team.

[Mark Field]

Since I don't know anything about the PA bar rules and don't have time to find them right now, I'll just quote some of the ABA Model Rules:

"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 1.1.

"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 2.1.

"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 4.1.

"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." Rule 8.5.

I don't have time for any extended analysis of these provisions, but I assume their relevance to the preceding discussion is clear.

[Mark Field]

Ok, I just got the time, and here are relevant passages from the PA Bar Rules:

"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

***

Competent handling of particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence." Rule 1.1.

"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 1.2.

"When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed." Comment to Rule 1.2.

"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 2.1.

"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 4.1.

"It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice..." Rule 8.4.

"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." Rule 8.5.

As you can see, these are essentially identical to the Model Rules. The PA Rules also contain the following commentary:

"Where human life is threatened, the client is or has been engaged in criminal or fraudulent conduct, or the integrity of the lawyer's own conduct is involved, the principle of confidentiality may have to
yield, depending on the lawyer's knowledge about and relationship to the conduct in question.
Several situations must be distinguished:
First, a lawyer may foresee certain death or serious bodily harm to another person. Paragraph (c)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is
reasonably certain to occur if it will be suffered imminently or there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the
threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town's water supply may reveal this information to the authorities if there is a present and substantial risk that a person
who drinks the water will contract a life-threatening or debilitating disease and that the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims.

***

Third, a lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.2(d). To avoid assisting a client's criminal or fraudulent conduct, the lawyer may have to reveal information relating to the representation. Rule 1.6(c)(3) permits doing so."

[Joe S.]

Mark,
Rule 1.2(d) does apply to Yoo's conduct, and it is an ethical rule. But to get a Rule 1.2(d) violation, Yoo would have to aid and abet torture in the first place. As I said up-thread: why go after a torturer with a relative peccadillo, such as an ethics violation? To establish the lesser ethical offense, you have to prove the greater torture offense in the first place. It's kind of like charging a murderer for littering--with the body of the corpse.

I don't think that the other ethical rules apply to Yoo's conduct, once you accept that the torture memo was advocacy, not advice.

The wonderful thing about this comment thread is that I can take an unpopular position, and be treated with respect by people who strongly disagree with me, but want to engage with my position. Thank you Mark, Emma Anne, and Anderson.

[Mark Field]

"Rule 1.2(d) does apply to Yoo's conduct, and it is an ethical rule. But to get a Rule 1.2(d) violation, Yoo would have to aid and abet torture in the first place. As I said up-thread: why go after a torturer with a relative peccadillo, such as an ethics violation? To establish the lesser ethical offense, you have to prove the greater torture offense in the first place. It's kind of like charging a murderer for littering--with the body of the corpse."

To me, the big reason to do so is that the PA Bar and the US Attorney have independent mandates; neither can perform the other's job. Each is charged with enforcing separate and distinct standards, even if the facts overlap.

Berkeley's faculty code picks up elements of both. It demands from its faculty an adherence to intellectual honesty, but also insists on compliance with social obligations like not committing serious crimes. And, again, it has an independent obligation to enforce compliance with its standards, one the PA Bar and US Attorney can't perform.

"The wonderful thing about this comment thread is that I can take an unpopular position, and be treated with respect by people who strongly disagree with me, but want to engage with my position. Thank you Mark, Emma Anne, and Anderson."

It seems strange to get credit for doing the obviously right thing, but I appreciate the kind words.