Jack Balkin of Yale writes:
Balkinization: Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway: In deciding not to refer charges to state bar committees, Margolis... says... Yoo and Bybee exercised poor judgment and let the Justice Department down.... The OPR argued that Yoo and Bybee had "a duty to exercise independent legal judgment and to render thorough, objective, and candid legal advice." This standard, Margolis explained, is much too high... not one that Yoo and Bybee were previously warned was the standard to which they would be held.... Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused. Margolis concludes that Yoo and Bybee exercised poor judgment and made bad legal arguments. But... this by itself does not violate the very low standard set by rules of professional responsibility... [which leave] the legal profession to make entirely stupid, disingenuous and asinine arguments that normal people with functioning moral consciences would not make.... To show misconduct, according to the standard that Margolis finds most relevant, one would have to show that Yoo or Bybee intentionally made arguments that they knew were wrong and false or did so not caring whether they were wrong or false.... Margolis explains... that Yoo... had crazy ideas.... Therefore it is hard to conclude that Yoo deliberately gave advice that he knew was wrong.... Yoo isn't putting people on.... He actually believes that the President is a dictator and that the President doesn't have to obey statutes that make torture a crime...
Yoo certainly says now that he believes that the President is a dictator. From the OPR Report, page 64:
Q: What about ordering a village... to be massacred?... Is that a power that the President could legally...
Yoo: Yeah. Although, let me say this. So, certainly that would fall within the Commander-in-Chief's power over tactical decisions.
Q: To order a village of civilians to be [exterminated]?
But Jack Balkin needs to go read John Yoo's 2000 Cato Institute paper, "The Imperial President Abroad," in which Yoo states that:
on a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law...
What does Yoo mean? He means:
The administration has used troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear...
In Kosovo... American troops... serve[d] under... non-American... commanders, such as British General Michael Jackson.... [This] threatens that basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution...
According to Yoo in 2000, the President does not have power as commander-in-chief to commit U.S. troops to combat unless the object is either "total victory" or "to contain the spread of Soviet influence."
According to Yoo in 2000, the President does not have the power as commander-in-chief to put U.S. troops under the command of our allies--never mind that Dwight D. Eisenhower--a mere theater commander--with no hesitation placed the U.S. First Army in the Ardennes under the command of British Field Marshal Bernard Law Montgomery; that President Woodrow Wilson put the entire American Expeditionary Force under the command of French Field Marshal Ferdinand Foch; that Continental Army commander George Washington put American troops under the command of Jean-Baptiste Donatien de Vimeur, Comte de Rochambeau, and of Marie-Joseph Paul Yves Roch Gilbert du Motier, Marquis de la Fayette. And let's not talk about the command authority over the Continental Army exercised by Friedrich Wilhelm Ludolf Gerhard Augustin Freiherr von Steuben at Valley Forge.
If Yoo is going to claim that his arguments in 2002 that Republican President George W. Bush is a dictator were made in good faith, he had better have argued in 2000 that Democratic President William J. Clinton was a dictator too.
He did not.
The case that John Yoo intentionally made arguements that he did not care were wrong and false is open-and-shut.