Not That I Was Planning to Send Him a Gift Basket Anyway

But in the light of these newly-released DOJ memoranda, John Yoo has firmly lodged himself in the upper echelons of my “People I Shouldn’t Be in the Same Room With, Because Then I Am Likely to Be Arrested For Spitting In Their Face, And You Should Know ‘Spitting In Their Face’ Is Actually a Euphemism For ‘Punching The Man In The Teeth'” list. And it’s a short list.

I hold no usefully informed opinion as to whether any of Yoo’s memoranda constitute something actionable (i.e., that the dude should be arrested/disbarred/etc) except to say I suspect that all things being equal, someone shouldn’t be disbarred or arrested for giving patently shitty, ass-kissing legal advice; the culpability rests with the people acting on the advice. People with actual knowledge of whether this constitutes actionable incompetence will have to weigh in to tell me if my suspicion is correct or not. That said, I sure as hell don’t want the man anywhere near an actual government job ever again; someone who can simultaneously tongue Alberto Gonzalez’s sphincter and crap all over the Constitution is someone whose judgment is clearly impaired both coming and going. The good news is Yoo himself seems uninterested in going back into government, which may be the first sensible opinion I’ve heard him have.

Really: Gaaaaaah. Glad to have that crew out of there.

By John Scalzi

I enjoy pie.

86 replies on “Not That I Was Planning to Send Him a Gift Basket Anyway”

In some ways, we’re very lucky that Bush was an incompetent boob, because if the last eight years had seen success and kept the sorts of people who think like that in power, this would have been on its way towards becoming enshrined in tradition.

At least now it can be undone.

It’s quite amusing (and by “amusing”, I mean “intensely nauseating and infuriating at the same time”) how the same crowd that harps on “absolute morality” also managed to engage in breathtakingly brazen retconning of the Constitution while constructing their own moral relativism for the last eight years.

(“Waterboarding isn’t torture, because the United States does not torture. And besides, it’s just ‘enhanced interrogation’. Unless they’re doing it to one of our guys, of course.”)

Hmmm – tried working out what all the legalese means.

Tried figuring out what what has people so upset about him.

Stopped trying to work it out when I realised that: “People who are not criminally insane or just plain evil don’t try and justify shit like torture and detention without charge”.

Think that about covers it.

At least now it can be undone.

My very of center friends, though, are convinced that Obama is just more of the same and that they won’t ever devolve and give up the power.

(They are of the “not a dime’s worth of difference between Democrats and Republicans” variety of leftist)

I too look forward to seeing the rest of John’s list.

Personally I don’t want to punch Yoo in the face. No, I’d like to strip him naked, strap him down and yank out his fingernails one at a time.

This, of course, would be well within my constitutional rights… According to Yoo.

John, seriously. You shouldn’t go around punching people in the teeth.

You’ll cut up your hand (and, since you’re cutting it on teeth, ew).

Said people should be instead kicked in the balls. Repeatedly. By someone wearing steel-toed boots.

Frank @ 13: Yawn. Come on, you can do better than that.

“Rendition”, “Extraordinary Rendition”, and “Torture” are three very different concepts. Just because Hollywood made a movie about torture called “Rendition” does not make the terms equivalent. Trying to claim that supporting rendition == supporting torture is well below your usual level of argumentation.

Frank – You’re conflating ‘rendition’ with ‘extraordinary rendition’. It’s a common mistake, especially among people eager to attack Obama for being hypocritical.

Here’s a hint – if you want to attack Obama for hypocrisy, attack him on his policy involving Bagram air force base. Or do what Josh Jasper said and read Glenn Greenwald. You need to read more left-wing sources so you’ll understand what Obama’s actually doing.

So have we reached the point again where “Clinton/Obama did it too” is the last refuge of the Republican? Even if, for those paying a smidgen of attention, neither Clinton nor Obama were ever responsible for the behavior being criticized in this post?


I’m well aware he’s currently away from Berkeley. What I’m saying is that I suspect he’s in no rush to go back, nor is Boalt in a huge rush to have him return. Were I a Boalt student, I wouldn’t want to take a class from him — not because any personal moral objection, but simply because I suspect the class would be loudly picketed all the time.

@ Scalzi:

Yoo is still a tenured professor at a top 20 law school. From what I know from working for law professors, they are relentless status hounds and don’t give up sinecures like that very easily, and are known to stay even if all the other members of the faculty hate their guts. My guess is that Yoo would have to be offered a Dean’s job at a mid- or upper-level law school to be even tempted to leave. Visiting professor gigs for law professors, on the other hand, are very common. It’s the academic version of polyamory.

As far as protests, if Yoo were speaking at a special event, protests might happen, although the more vocal the protesters are the more likely that campus police will haul them out. (The only law school event protesters I’ve heard of who weren’t were a couple of Georgetown Law students who attended an Alberto Gonzales speech wearing orange jumpsuits and black hoods who stood in the back of the room, saying absolutely nothing.) For protests in class, law students don’t ever disrupt class no matter how much they disagree with or dislike the professor (it’s the sort of thing that costs you grades, and therefore law review, judicial clerkships, cushy BigLaw jobs, etc.). Non-students disrupting a class in protest would probably find themselves facing angry sleep-deprived law students wielding very heavy casebooks. Especially if it’s a 9AM class.

And the one thing college/grad students as a whole don’t have is long institutional memory. In 10 years colleges and law schools will be filled with kids who were in diapers at the time of the Yoo memos, and they will have other, more current things to protest.

Until this spring, Yoo used to teach two (!) classes on Constitutional Law every spring semester, and just last semester he taught three classes, including one on Constitutional Law. I remember looking a year or so ago, and the only way to study Constitutional Law at Berkeley was to do so under the tutelage of Professor Yoo. Which is a little like requiring students interested in Civil Rights to learn the subject from David Duke; both guys probably know a lot about the subjects in question, but nonetheless each is totally discredited and repugnant and should not be listened to.

I was glad to see that Yoo isn’t teaching this semester, but I’ve never heard any announcement that he won’t be teaching the same two classes next spring semester. Now, I’m not affiliated with the law in any way, or with Berkeley, but given how much interest I and other people have in Yoo, and the number of blog posts I’ve read about him (including from scholars at Berkeley), I suspect I’d have heard if any formal decision had been taken.


So the system is teaching Lawyers to be big old ass kissers in college. No wonder Yoo did it. He was trained to kiss the biggest ass he could find!

Yeah I know there are good lawyers. But if the system is training them to act in this manner then I guess I should not question why Yoo did what he did but question why some would not since the system indoctrinates them to do that.


“For protests in class, law students don’t ever disrupt class no matter how much they disagree with or dislike the professor”

Oh, I’m not talking about the law students. I’m talking about undergrads. They’re noisy.

I do hear rumblings that Yoo’s faculty peers want him gone, which might be more serious. That said, that’s only rumor at this point.

It’s about as dreadful an idea as I can think of to boot someone out of academia or the Bar because they wrote unpopular (or even dangerously wrong) legal opinions while working for the federal government. Yoo ought to have quit rather than write them and play patty-cake with Arrington. Certainly others resigned (eg, Jack Goldsmith).

But it’s bad enough that thoughtful staffers (or others not so thoughtful) are called to account for offering their opinion about something. I don’t defend the substance of the work — I still haven’t worked my way through it – but Yoo was asked for an opinion, he did not order anyone to do anything. A lot of smart folks will stay the hell away from doing this kind of work if there are consequences other than general public disdain and threats to future livelihood.

Actually, being spit on is in some ways much worse than being punched. (Hey, I’m a psych nurse).

I second nisl’s suggestion:”Personally I don’t want to punch Yoo in the face. No, I’d like to strip him naked, strap him down and yank out his fingernails one at a time.

This, of course, would be well within my constitutional rights… According to Yoo.”

It’s profoundly unserious to say that Yoo’s opinions are objectionable because they’re “unpopular”.

It’s becoming clear that the timeline goes like this:
1) US government tortures people
2) US government panics about legal consequences thereof
3) John Yoo writes memo ‘legalizing’ previously illegal conduct
4) John Yoo writes further memos that ignore all Constitutional provisions other than the President’s position as commander in chief of the military
5) ???
6) Yoo’s memos are recognized as dangerously wrong and revoked on January 15, 2009.

Brad DeLong, also a prof at UCB, has changed his initial position and is now calling on Yoo to be fired. Part of his position is that Yoo was not just offering an opinion, but was using the DoJ to squelch objections from lawyers who read the law and precedent what is now recognized to be correctly.

Yeah, even though I find his reasoning wrong and his conclusions morally repugnant, I think the only way Yoo should be kicked out of Berkeley or the bar is if he did something unethical, criminal, or criminally negligent.

As loathesome as Yoo is, he was still only a tool. The people we ought to be persecuting (and prosecuting) are the ones who turned to people like Yoo to tell them that it was okay to do what they already wanted to do anyway, and now want to use that legal “advice” as a shield to prosecution: “But the lawyer (that I hired to tell me that it was okay) told me it was okay!”

Slightly unrelated, but I think relevant. When I was a young man there was talk of a constitutional amendment to ban the burning of the American flag. My reflex reaction was to support such an amendment. My father, one of the most conservative men I’ve ever known, told me he was against the amendment. He said that the purpose of the constitution and the bill of rights was to protect us from the tyranny of the government. The freedom of speech was more important than protecting ourselves from being offending by somebody’s idiotic protest. When somebody burns the flag they are just showing the work what jerk they are.

I’ve never forgotten that. There are times when our instinctive reaction maybe to do away with inconvenient liberties because we are afraid. But, I’ve always remembered my dad’s admonishment that our liberties our more important than our fears or our prejudices.

28 My objection to Yoo’s continued membership in the bar is not that “[he] wrote unpopular (or even dangerously wrong) legal opinions while working for the federal government”. It is that the “legal opinions” he wrote fail objective tests for legal competence, such as “ensure that the cases you’re citing are accurately characterized and would be relevant to the parties whom you are advising” and “ensure that you do not neglect to cite controlling adverse authority.”

In short, Yoo’s problem was unprofessionally inadequate legal process even more than it was the substance of his opinions. And I’d say the same thing if the opinions had come out the other way. (In fact, I have said the same thing when opinions came out the other way, in a disturbingly similar context… but that’s still classified, from before I went into law to do something less confrontational than I used to do.)

Well, given that Berkeley is “a magnet for hippies, protesters and left-wing activists” (Yoo’s words), maybe he’s not too keen on returning? Or, maybe he is.

Goodness, what a tool. What I got from the references was was:

Bush-esque contempt for Congress, and for journalists.

Bush-era-esque embracing of not knowing (“I’m so ignorant”, used in reference to LA, and “I can’t get the thing to work” in reference to his iPhone). Dude’s a graduate of Harvard (summa cum laude) and Yale. Give me a break.

A strong belief in the absolute power of the American president. The guy probably watches “Frost/Nixon” and cheers for Nixon.

– yeff

While I didn’t go to Cal, I did attend a not-quite-as-good but still pretty decent law school in Tulane, and I suspect that the training is similar. Lawyers are trained from an early stage that the way to riches is to provide legal justification for what their client wants to do, as opposed to telling them whether an action is truly legal or not. This element exists in all lawyers (it IS an adverserial system, after all), but it gets exaggerated in some lawyers, like Woo.

There will be students and faculty who hate his guts and studiously avoid ever taking a class from him. There will be others–and probably more–anxious to learn such skills from him or buddy up for the letter of reference. It’s sad, but that’s law school.

Of course, the real irony is that most lawyers very, very rarely ever handle any Constitutional issues (I have, but I’ve had an unusual career track). Thus, even his crazy theories may have relatively little impact. He’ll stay on sabbatical for the year and then it will all fade away.

On an unrelated note, it’s radically unlikely that he would ever be disbarred. Barring stealing from a client or rampant substance abuse, disbarments are incredibly rare.

@ #32 by # Xanthippas

I think the only way Yoo should be kicked out of Berkeley or the bar is if he did something unethical, criminal, or criminally negligent.

But surely that’s just the point?

The comparison I like to make is to Princeton philosopher Peter Singer, or rather (given my relative ignorance aobut Singer’s actual positions) to the frequently encountered caricature of Peter Singer. This caricatured position starts with attempts to weigh the value of human and of animal life and proceeds to suggest that not only do some animals deserve much greater rights but that disabled or diseased humans deserve fewer rights, and that some can be killed. I don’t agree with this caricatured position, but I can see that it’s an academic argument about ideas, and easily falls within the protections of tenure. But the first time such a tenured professor goes beyond arguing about ideas to suggest that a specific living person be killed because of their disabilities, that’s not an academic argument about ideas, it’s incitement to murder. That’s not protected.

Yoo isn’t under attack because he has crazy or stupid ideas about executive power and the Constitution; he’s under attack because actual living human beings were tortured on the direct basis of Yoo’s legal authority, when Yoo had the official responsibility of dictating whether the torture could legally proceed. Ideas may have consequences, but Yoo has actual victims. That’s an important difference.

Warren Terra @ 37

I’m not disagreeing with your conclusion. I don’t know enough about lawyering and the law to know if he actually did meet my criteria for being fired. But from what I’ve read, he probably has.

Todd@38 Lawyers write wacky advice letters for clients all of the time. Don’t get me wrong–I find Yoo and his conduct abhorrent–but people just don’t get disbarred for giving self-serving, awful advice regardless of the consequences. Whether they *should* is a different question, but from a practical standpoint, it doesn’t happen.

Austin@40 Jack Thompson’s conduct was different; he was disbarred for being a rude jerk. Also, Yoo didn’t provide precedent for anything; only a court can establish precedent. He did what lots of lawyers do–found a way to bend his legal analysis to fit what his client wanted to do.

Don’t get me wrong–I despise the guy and would rather not have him in my profession. I’m just letting you know that disbarments don’t happen in these sorts of cases. I would be happy to have this be an exception, but I very seriously doubt that it will be.

I don’t know about the US, but certainly in New Zealand you can get struck off for repeated incompetence. And this qualifies, in my mind, as repeated incompetence. No serious reading of the US constitution goes, essentially, “War = the ability to ignore the bits of the Constitution that talk about free speech and cruel and unusual punishment” (the argument might fly in New Zealand, our Bill of Rights isn’t absolute, but yours is). He gave a political opinion to give the appearance of legal rectitude. He did not give anything that meaningfully qualified as a legal opinion.

It sound waffly and a lot of non-lawyers are going to scoff at me here, but lawyers have a duty to uphold the law that comes before their duty to their clients. If you are asked to provide an opinion justifying something that is self evidently illegal, you should refuse and/or quit. Jack Goldsmith quit when he reached this point, and he certaintly isn’t a lily livered liberal.

Finally, if I was a member of the California Bar, I’d want Yoo disbarred. This isn’t a matter of giving unpopular opinions, its a matter of wilfully misinterpreting the most important law of the land for political purposes. And, as Glenn Greenwald, Brad Delong, and Jack Balkin have pointed out several times, these weren’t constitutional views that Yoo held when Clinton was in the White House (see , for example). This would seem to me to bring the profession into disrepute

As I say, I don’t know what the Rules of Professional Conduct are in California, but if an equivalent situation arose where I live, there would be grounds to at least strongly consider disbarring him. I agree the tenure issue is more difficult, but the University senate should at least discuss the issue and see what they think.

@42–Every state (and, of course, nation) has different rules for what is professional misconduct/grounds for disbarment. We should not assume, however, that Yoo is under California jurisdiction. Many law professors hold licenses in whatever state they started out in, but never get ones for where they end up if they don’t intend to practice in state court (you can get admitted to any federal bar in the U.S. with any state’s admission; thus, you could get admitted to a California federal court based on a license from Maine, or wherever). As a Constitutional “scholar”, Yoo probably doesn’t worry much about state court. As such, lord knows where he’s admitted.

I only know about Louisiana’s rules (which I’m reasonably certain don’t apply), but, in general, disbarring someone is very difficult and involves more than incompentence or even wilfully bad advice, at least in the U.S.

Roxanne @ 44:

I agree – the idea of the person that wrote those memos teaching first year law students constitutional law makes my head hurt. But it is VERY hard (rightly so) to get rid of tenured professors. If he got disbarred, however, it’d be hard to argue that he should remain a teacher of law.

One of the unfortunate things about the past few years is that the word torture has been so thoroughly politicized, hyperbolized, and dumbed down, it now has a thousand different definitions and is subject to context and interpretation at whim.
When I was a kid and thought of torture, I thought of eyes being gouged out, fingers and hands and feet being smashed and disfigured — if not lopped off entirely — along with limbs being pulled from sockets, searing flame and heat being applied to sensitive organs, and all manner of other, even more midieval gruesomeness.
We went round and round and round and round about this over on the Making Light blog and my only conclusion was that ‘torture’ is now a word with variable meaning and variable application — all of it entirely political — such that the word could be applied to any number of situations in order to achieve a desired political result.
Given this new reality, the U.S. should probably look for other modes of information extraction, because clearly even modest interrogation techniques are on the ‘torture’ list.

I was privileged to be introduced to an important (and relevant!) article by Roger Cramton, Robert S. Stevens Professor of Law Emeritus, Cornell Law School, entitled “The Lawyer’s Role in Preventing Corporate Fraud.” (Nov. 2004). His advice to lawyers is applicable to most professionals and it’s too bad Yoo didn’t take it.

I’m looking at a hardcopy so I can’t link to it. With our Host’s permission, I’ll quote a few passages, mindful of not being too verbose.

— You won’t avoid civil liability by portraying your job as a lawyer narrowly and attempting to place the blame on others. Lawyers involved in client fraud situations almost invariably assert [that] they were legal technicians–scriveners–not professionals with a broad responsibility. They claim, therefore, that the legal advice they gave was proper under the circumstances and that all the wrongdoing is attributable to other actors.

— In shaping future business transactions for a corporate client, try to work only for clients who want a legal advisor who will chart a prudent course through the shoals of the law. Beware of corporate managers who push you to be ‘creative and agressive’ in exploring the limits of the law. The business lawyer is a counselor and advisor, not a litigator, and the goal is a sound result that will advance the interests of the client ‘within the bounds of the law.’

— Lawyers who are unduly aggressive in manipulating law and facts to satisfy a demanding client run great risks of assisting corporate crime or fraud.

— Lawyers talk themselves into assisting such fraud [as Enron’s] by manipulating the letter of legal rules in aggressive ways while ignoring the clear intent of the rules involved and the underlying policies which ultimately control their judicial interpretation.

There’s quite a bit more worth quoting but I don’t want to strain Mr. Scalzi’s patience further. With his permission, I’ll conclude as Mr. Cramton did, by quoting Louis Brandeis.

“Your lawyers … can tell you where a fairly safe course lies. If you are walking along a precipice no human being can tell you how near you can go … because you may stumble on a loose stone, … slip and go over; but anybody can tell you where you can walk perfectly safe within a convenient distance of that precipice. The difficulty which men have felt … has been rather that they wanted to go to the limit rather than that they have wanted to go safely.” (1911)

(My thanks to B.G. Richard Bednar, USA(R), for introducing me to this article.)

Yoo managed to write multiple memos advising the administration of its powers and duties without ever, once, mentioning Youngstown Sheet & Tube Co. v. Sawyer. This is the definitive case when it comes to executive power; every administration since then has referred to it in justifying actions or explaining why it’s not acting, and in every administration, legislators and judges have referred to it in attempting to rein in executive action. Youngstown is as foundational a case as, oh, Marbury v. Madison, or Miranda, or Roe v. Wade. It’s not something you just overlook – it’s only something you decide to defy.

It would be possible to make an argument that some part of Youngstown’s three-tier system needs revisiting, or should be applied in a way not suggested by conventional wisdom. There are lots of possibilities. But Yoo and Addison chose not even to mention it as an issue. That’s malpractice, or darned well should be.

Yoo’s theory of constitutional law seems to consist of:

1. It has been demonstrated that the government is allowed to use extreme violent force under situations where national security is at stake.

2. Therefore anything *less* severe than “extreme violent force” is clearly permissible.

3. The Bill of Rights evaporates in a puff of demented ‘logic’.

ie, If the government can justifiably kill the American citizens who inhabit a house, then clearly they can quarter troops in the citizens’ house instead, or ransack the house without a warrant, or record all communications involving the citizens. Because all of those things are less traumatic and damaging than killing them.

Sub-O: “We went round and round and round and round about this over on the Making Light blog and my only conclusion was that ‘torture’ is now a word with variable meaning and variable application — all of it entirely political — such that the word could be applied to any number of situations in order to achieve a desired political result.”

Clearly it only means that children have limited imaginations, and only know of torture from pop culture.

Andrew: “You’ve just described what dinner at my in laws is like….”

You need to revisit the definitions of ‘voluntary’ and ‘involuntary’.

The meaning and boundaries of torture matter very little if one confines oneself to questions like:

What interrogation methods reliably generate true and useful information, and how can I make sure they’re being used?

What are my obligations in national and international law, and what policies let me say with confidence that they’re being fully discharged?

I never yet run into a person seriously, deeply troubled by the boundaries between “torture”, “harsh interrogation techniques”, and the like who wasn’t pushing for something either clearly illegal or clearly less effective than interrogators’ best practices, for whatever reason. But someone who’s serious about law and victory will be pushing not to use any of those techniques anyway.

Fungi @ 30

I think you’re timeline missed a few points:

0) U.S. government frequently spies on U.S. citizens without warrent well before 9/11.

0.5) U.S. government does this at direct order of George Bush.

That’s the early version, before leaks about the Justice Department’s Office of Professional Responsibility’s report on Yoo’s deriliction of duty started coming out. A report embargoed because of how embarassing and potentially inviting-of-liability it was. The “OK, it’s time to fire Yoo” version is at

My immediate reaction to this was “Wait, John Yoo? Isn’t he a movie star? What’s he got to do with it?”

Then I realised that I was thinking of John /Woo/.

I would personally love to see John Yoo’s memos held up to official legal scrutiny, and would love even more to see the actions of Bush and Cheney held up to official legal scrutiny – not necessarily because they may be guilty of war crimes but because the limitations of the office of the President need to be hammered home, and the accountability of the President likewise needs to be hammered home.

I disagree with some elements of the US Constitution, but I quite like the idea of one simple and absolute set of principles outlining the powers of the government.

Also; Sub-Odeon @ 48: That sort of thing applies, and is practiced, only in cases where torture is /not/ actually illegal – as you said, “medieval gruesomeness”. In places, such as the entirety of the civilized world, where torture is illegal, you’re going to find it practiced in ways that do not leave obvious signs of torture. Such as waterboarding.


If that’s your definition of torture, then you’d have no problem with the torture aspects of Yoo’s memos. He defined it as anything other than that which causes significant organ damage.

I think that’s an utterly morally repugnant definition. Think of the scope of horrific things it leaves you to do to another person, physically, emotionally, and psychologically. If you don’t have a problem with any conduct beyond Yoo’s threshold, I can’t do anything but leave it to your conscience to deal with.

Sub-Odeon, my Latin is really starting to slip so I can’t recall the technical names of the various fallacies you just invoked, but pretending that your opponents have so ruined a good definition so that you have to give up and change the subject certainly rings up a few.

Yoo belongs to that sad class of conservatives who want a secular king. This they call the “Unitary Executive”. They do not believe in a democracy, or even a representative republic; they want a king, sans the primogeniture and blessed-by-God requirements, who will extend his lordly authority over all his lesser subjects. The Congress, in their view, is merely an advisory adjunct to the executive, and the people need to shut up and obey in return for protection.

Heck, they probably oppose stem-cell research largely because they think most of the diseases targeted by such research could be cured if only those afflicted touched the hem of the Unitary Executive’s garment.

ADifferentJohn @ 36:

Lawyers are trained from an early stage that the way to riches is to provide legal justification for what their client wants to do, as opposed to telling them whether an action is truly legal or not.

ADifferentJohn @ 41:

He did what lots of lawyers do–found a way to bend his legal analysis to fit what his client wanted to do.

I could not disagree more strongly with what you wrote. BAD lawyers may do this, lawyers who have forgotten that they are officers of the court, but it is not what a lot of lawyers do, nor what we are trained to do.

I’ve fired clients in the past, because they insisted that I rubber stamp a decision that would be illegal, or subject to penalty. There may be many many lawyers out there, but in areas we specialize in (both geographic and within the various areas of the law), it is a small world out there. Your client may happily pay the fine or deal with the penalty (or sue you for malpractice), but your reputation in the legal community will follow you for the rest of your life.

Yes, my job is to find a way for my clients to do what they want to do, AND to advise them not to do something (even something that they dearly want to do) if it is impossible without breaking the law.

Yoo’s ‘analysis’ made me sick when I read it – it perverted his abilities and his professionalism in a way that was disgusting. It was the first time I was ever ashamed to be a lawyer – because I shared the same profession with him.

I believe disbarment is an option for him, for at least two reasons:

Incompetance – PA Disciplinary Rule 1.1
A lawyer shall provide competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(Specifically Comment 3: In an emergency a lawyer may give advice or assistance in a matter in which the lawyer
does not have the skill ordinarily required where referral to or consultation or association with another
lawyer would be impracticable. Even in an emergency, however, assistance should be limited to that
reasonably necessary in the circumstances, for ill considered action under emergency conditions can
jeopardize the client’s interest.)

Rule 1.2 Advocating Criminal Activity
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.

That should be sufficient, but there may be other likely violations as well.

JS, I don’t think I missed the point at all. Yoo is labeled a monster for using his lawyerly skills to defend ‘torture’ in the GWOT, right? I pointed out that ‘torture’ has come to mean all sorts of things, depending on context and depending on the political point being made, such that the word has become meaningless. Which is a shame, because like rape before it, torture is an ugly thing, but only so long as it’s not dumbed down to the point that people use the word flippantly, breezily, and apply it to cases that it ought not to apply.
Seems to me we’ve entered an era where any sort of interrogation by U.S. personnel is going to be slapped with the ‘torture’ label — even by other Americans — because it is politically advantageous to do so. Given this reality, the U.S. ought to bail out of interrogations because this is a political war as much as it’s a ground war against terrorism, and giving the enemy — at home and abroad — free ammo is not in the best interests of those who wish to see the GWOT brough to a successful conclusion in the U.S.’s favor.

Reading some of those, its just an exercise in how some people try to reinterpret things to fit what they want. I think the memo about the president being able to detain US Citizens on his own prerogative right after stating the statute that it required an act of congress to do so just points out how corrupt some folks in our government are. Sadly, I fear it is both sides of the Aisle and ferreting these guys out wont be as simple as voting people out of office, since the ones who seem most corrupt are the appointees.

Sub-Odeon @# 70: “Seems to me we’ve entered an era where any sort of interrogation by U.S. personnel is going to be slapped with the ‘torture’ label…”

Well, no. The Executive Order on Ensuring Lawful Interrogation explicitly “slaps the ‘torture’ label” on techniques that are contrary to the Federal torture statute, the Detainee Treatment Act of 2005, the Convention Against Torture, and Article 3 of the Geneva Conventions, and explicitly permits any interrogation techniques listed in the Army Field Manual.

If some people continue to argue that certain portions of the Army Field Manual still contravene the Geneva Conventions Section 3 or the Convention Against Torture, that doesn’t mean that an administration that authorized the use of numerous procedures that clearly violated Section 3 or the Convention Against Torture was really not all that bad. It’s like Al Capone saying, well, sure, I had people killed, but I’ve seen you jaywalking, so get off your high horse.

Sub-Odeon @ 48 –

Given this new reality, the U.S. should probably look for other modes of information extraction, because clearly even modest interrogation techniques are on the ‘torture’ list.

Point to the “modest interrogation techniques” in question. Or are you making this up?

I pointed out that ‘torture’ has come to mean all sorts of things, depending on context and depending on the political point being made, such that the word has become meaningless.

No, you alleged that to be meaningless. You calming something to be true does not make it true. Sorry.

Yeah, to back up the last couple of posts, sub-odeon: there’s a thing called the Convention Against Torture. The US and almost every other country in the world has signed up to it.

The relevant bits of article 1 of that treaty reads:

“(1) …torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(2) This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. ”

This is a minimum, baseline standard. That the US has voluntarily signed up to. Laws can extend the definition beyond that, but it’s a breach of international law to go below that. The “lawful sanctions” mentioned in subarticle (1) could possibly include interrogation techniques legal under the US Army field manual. They would not include things beyond that.

So. There’s a definition of torture. Drafted in 1975. Not changed since then. Internationally recognised (specifically by the US government). I think that’s what torture is. You think it’s ripping out eyeballs. You know where I got my definition, where’d you get yours?

Don’t worry about Obama spending trillions, offending our allies, and gutting the armed services. Wallow comfortably in the warm bath of hating a minor Bush official who left office years ago. Because being Progressive is all about THE GRUDGES.

The subjective language of the 1975 document is so broad, it could apply to just about anything, including such passive methods as sleep deprivation, long exposure to loud music or noises, or even light and sound deprivation wherein the detainee is confined in utter silence and darkness.
Hell, most people at your average state prison, upon reading the 1975 document, would probably say, “I am being tortured and I never even knew it!”
If our operational definition of torture includes “severe mental suffering” then virtually any sort of interrogation or coercion can fall under the guise of ‘torture’, which goes back to my assertion that if we’re going to care what people think of our information extraction methods, we’d probably be better off just ditching any kind of interrogation at all, lest the ‘torture’ bogeyman rear his head, and suddenly it’s in the news and in the papers.
Once upon a time torture meant being stretched on the rack with a couple of hot coals on your eyelids. These days ‘torture’ can be anything that falls under the subjective label, “severe mental suffering.”

“Once upon a time torture meant being stretched on the rack with a couple of hot coals on your eyelids. These days ‘torture’ can be anything that falls under the subjective label, “severe mental suffering.”

Once upon a time when we didn’t think minimum human rights standards were important.

If you think that shift is a bad thing, that anything except hot coals and chopping off fingers isn’t torture, as I said before, I leave it to your conscience to deal with. Alternatively, you could do what Christopher Hitchens did and get himself waterboarded. His conclusion after doing so, even knowing that they’d stop at any point was that it was “unquestionably torture”.

“I, John Yoo , do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic…”

[crosses fingers behind back, thinks: “Domestic? Hahahahahahaaaa. Except myself and my co-conspirators…”]

I had a lot of respect for Hitchens before he did that. My respect grew a lot after he did that, and I read his Salon piece with a great deal of interest when it came out. As an advocate for U.S. intervention in Iraq and an outspoken anti-Islamist — and anti-religionist in general — I think it took a lot of guts for Hitch to put him through that. As a civilian anyway. Military folks have to do S.E.R.E. all the time, and some of my associates have told some pretty make-you-blood-run-cold horror stories of same.
But I digress.
You mentioned human rights standards, which is important because it seems to me every new generation of Americans finds a way to expand the definition of ‘human rights.’ Sometimes in very good ways. Sometimes in ways that make me go, “Huh?” Without connecting back to the Rush Limbaugh thread, the entire torture debate sometimes seems like a referendum on prisoner rights et al, hence my belief that most state prisoners in the U.S. would consider their time in the clink to have been torture-like, if we bring in the “mental suffering” angle.
I’m just not sure where this whole thing stops. How broad does the net get? Who winds up implicated and prosecuted? I’ve got friends in the military and in corrections who know their careers can be ruined if a prisoner or detainee makes enough of a stink, makes up enough of a story, and gets a good lawyer.
If I advocate for anyone, it’s the people just doing their jobs — very dirty and thankless jobs, mind you — who are forever under threat from the ‘rights’ side of the debate, because doing their job effectively — and on behalf of ordinary citizens who don’t want to deal with criminals and terrorists — does not always permit these officers and these soldiers to be “nice’n’cuddly” with people.

Sub-odeon, your argument appears to be (slightly exaggerated, but I think in principle this is what you’re saying) “Definitions of torture and human rights are different than they were 500 years ago, and therefore we shouldn’t try to make standards about who can be tortured and who has what rights enforceable. (Especially because its more important for my friends to keep their jobs than helpless people to be protected from weeks on end of sleep deprivation)” You’re perfectly entitled to think that. I think that argument is wrong, and not able to be rationally defended, but you’re perfectly entitled to think that. I’ll leave arguing about it alone, for now.

“someone shouldn’t be disbarred or arrested for giving patently shitty, ass-kissing legal advice” …

I have to weigh in with the folks that disagree with you. Depending on how bad the advice is, maybe the lawyer need not be arrested, but definitely sanctioned (by the lawyer’s bar association) or, if the advice is bad enough, disbarred.

The lawyer’s role, in giving legal advice, is to advise the clients about what is or is not, well, legal. Giving advice that is unpopular is one thing. But by all accounts, what Yoo did was to just make stuff up. (OK, I haven’t read what he wrote, but that seems to be the consensus of the liberal-elite media.) Yes, “culpability rests with the people acting on the advice” – a legal opinion is not a “get out of jail free” card. But the idea that the lawyer should get away scott free, I think, is misguided. Disbarment would, at least, prevent him from rendering patently shitty legal advice again in the future. (Kinda the point of disbarment, I think.)

Sub-Odeon said:

Military folks have to do S.E.R.E. all the time, and some of my associates have told some pretty make-you-blood-run-cold horror stories of same.

I did my SERE’s at Fairchild in 1988. Most members of the military don’t train in the program. In fact it’s a minority, reserved for those who are deemed specifically at risk for capture. It’s difficult and having gone through it I unequivocally reject the premise that waterboarding is not torture. It is torture now, it was torture in 1988, and it is unendurable even if you understand that you are not in mortal danger. Few are left unscathed and I had respiratory problems for months following the procedure.

It sickens me that we, Americans, have lost the moral high ground when it comes to prisoner treatment. It saddens me that we dehumanize our “enemies” and vilify them to the point that abuse is not only tolerated by the pubic, but a large percentage of Americans encourage it.

I don’t know if what Yoo did was legal or not. I hope investigations and trials are held, in public, to determine that. I do know that I am much less proud of my service and of my combat tours today than I was before the Bush Administration. What has been done in the name of freedom under the auspices of fear disgusts me.

“offending our allies..”

Now that’s hilarious. You’re joking, right?
Considering so many of America’s allies are actually feeling like admitting to being allies again now that W is gone, and Obama’s popularity in the rest of the western world…

If Yoo’s advice was dangerously incompetent–if it ignored applicable case law, statutes and treaties–yes, he can be censured and possibly disbarred for it, at least under every state rules I’ve happened to look at and under the Model Rules of Professional Conduct or Code of Professional Responsibility (the MRPC or CPR are not binding on anyone, but one or the other is the basis for ethics rules in every state and the language tracked fairly closely in most states). The MRPC version, if you’re interested, is rule 1.1, “Competence.”

A lawyer who is advising a client on a prospective course of action has an obligation to tell him what can go wrong, and that’s certainly the way we were taught at Carolina, thank you much; if somebody is saying their law school handled it differently, I have to express some sense of shock and horror. A lawyer who omits relevant negative cases or binding contrary authorities is not doing his job, even if he’s been asked to tell the client how something might be done.

Furthermore, an attorney who advises a client how to break the law has gone well over and beyond his duties as an advocate and an advisor. It’s one thing to tell a client not to talk to police, or to go into a courtroom and argue that a piece of evidence against a murderer ought to be suppressed–these things are vital to our notions of liberty and the individual-over-the-state. It’s an entirely different thing to tell a client how he might dispose of his wife’s body or make it look like a suicide.

(Additionally, it has to be noted that a lawyer may certainly refer to his own conscience, if he has one, or to political ramifications and other extra-legal issues when consulting a client; c.f. Model Rule 2.1, adopted in some form by most states.)

If the actions approved of by the Bush Administration constituted torture (I think they do, but let’s sideline that argument for a second, and leave it at “if”), then those actions would be a violation of Federal law (we are a party to treaties which make torture a crime–and treaties are part of the “law of the land”–and there are Federal enabling statutes prohibiting torture that were enacted to bring us into compliance with our international obligations). It follows then, that if Yoo was telling his clients how to violate Federal law, he was breaching a fundamental lawyer’s duty; c.f. Model Rule 1.2(d). It may well be that Yoo’s conduct can be characterized as simply advising the Bush Administration as to the scope of the applicable laws (although I think that claim is negated to a great degree by the fact that Yoo failed to give adequate consideration to statutes and cases that explicitly said he was wrong); if so, Yoo didn’t cross the line. But if his conduct rose to the level of telling the Administration how to break the law, or to counseling and encouraging the Administration to do so–yes, he could be in disciplinary trouble, and not because of his opinion’s “popularity.”

(Did somebody above say it was a bad idea to disbar somebody for writing unpopular or wrong opinions? Sheesh: marijuana is popular and obviously illegal in most states and under Federal law; should I counsel a client to grow and smoke all the weed he wants, I deserve to be censured or worse, popularity doesn’t enter into it. My client tells me he wants to grow weed, I have an ethical obligation to tell him they’re gonna arrest him and charge him with at least Possession With Intent To Sell, Manufacture Or Deliver or maybe with Trafficking Schedule VI depending on how much he’s caught in possession of, and could go to prison if he’s caught and convicted. I don’t get to tell him what he wants to hear: “Wow, yeah, that sounds awesome.” Even if my guy is in California, I have an ethical obligation to tell him he’s violating Federal law and to lay out the requirements he must meet to be legal under local law; I’m dangerously incompetent if I just explain state law to him and then leave it at that, and I shouldn’t be practicing in such a case, seeing as how my bad advice could lead to somebody’s incarceration. Should my bad advice lead to bodily injury or worse… yeah, pull my ticket, man, I’m done and I deserve what’s coming to me.)

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