Tuesday, February 17, 2009

Fixing Legal Policy Around Political Objectives

There is a continued buzz over the results of an investigation by H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, into the legal advice that the Bush Administration received on policies of torture. The Public Record is quoting "legals sources familiar with the case" in saying that the results of this investigation are "damning" and that there was "misconduct" on the part of John Yoo and other lawyers who were apart of the Office of Legal Council during the Bush Administration.

The issue here is not merely that Yoo and others gave the Bush Administration bad legal advice, but that their opinions were not in good faith and were actually fixed around the policy goals that the Administration wanted to accomplish. This report and the conclusions that it reaches, could be very destructive for the Bush Administration's continued defense of its torture policies. The Bush Administration has continually pointed to the legal opinions that they received in the form of the Yoo and Bybee memos in justifying the legality of their policies on torture, but if these legal opinions were indeed fixed around political objectives, then this justification (which was shaky to begin with) will disintegrate.

From the article:

One part of the OPR report criticized Yoo’s use of an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding and other acts that have historically been regarded as torture under U.S. law, the sources said.

The report also criticizes Yoo’s legal theories that the President of the United States had the right to suspend Fourth Amendment protections against unreasonable searches and seizures, the sources said. It is believed that Yoo’s legal theories led to a warrantless wiretap program after 9/11.

The OPR report was completed late last year but was kept under wraps by Attorney General Michael Mukasey while Bush finished out his days in office, the sources said.

While the question of why Former Attorney General Mukasey decided to suppress this report needs to be answered, it is interesting to take into account John Yoo's involvement in White House policy meetings at the same time that he was forming the legal opinions that allowed for said policies to be implemented. It is clear, as The Public Record points out, that Yoo's own writings provide evidence of his involvement in the shaping of policy. Perhaps two of the most interesting lines from Yoo's book War by Other Means state:

“Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al-Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. The provision of ordinary POW rights...is infeasible.”

“If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al-Qaeda leaders.”

These lines indicate not only Yoo's communication with those who believed that the Geneva Conventions should not be applied, but they indicate that Yoo's involvement with policy makers translated into legal results that allowed for this very policy to become justified. With this "damning" of a report, it becomes harder for both the Bush Administration to justify their actions on torture and for the Obama Administration to ignore the need for punishment of the arrogant law-breaking from the last eight years.


Spencer said...

This is a very interesting article to me. Unfortunately, I have not kept myself up do date on all these issues, nor have I read the torture memo, but John Yoo is currently teaching here at Chapman. I have many friends in his course, on all sides political fence, and they have provided me with some very interesting perspectives into Yoo and what he did. The most reasonable seems to be that he simply did a job.

He was asked by his employers to write a memo that justifies the administrations stance on torture. He did it, and did it well. As I understand it, it was not meant to be an objective, independent, legal opinion.

I guess what i am getting at is that i feel a little trepidation over damning John Yoo personally for simply doing what he was instructed to. Especially since many of us soon-to-be attorneys may be faced with very similar tasks: defend this rapist, structure this CEOs contract to include a golden parachute, etc.

I will show this to a friend who is in his class and encourage him to comment.

more to follow.

Chris Johnson said...

Thanks for stopping by Spencer!

Let's be clear about Yoo's legal opinions. Yoo's memorandum directly led to war crimes both in Guantanamo Bay and in Iraq and this was the intended purpose of writing such a memorandum. The reason that Yoo's opinions were taken so seriously is precisely because he was working with Administration officials (Gonzales, Addington, etc.) whose goals were to provide legal justification for these torture policies.

This is miles away from providing legal defense for those accused of rape or structuring a contract for a CEO. Perhaps a better analogy (though I tend to stray away from the imperfections of making analogies) would be if a lawyer was asked to craft a legal opinion that would defend the legality of the act of rape.

The issue is not necessarily whether Yoo did his job, but whether he acted in good faith while issuing legal opinions. Crafting legal opinions, which should be based upon the laws at hand, while participating in policy meetings is problematic and indicates that Yoo was not acting in good faith while issuing these opinions. Issuing decisions that led to torture and war crimes and that were also issued in bad faith, would implicated Yoo in said war crimes.

Since the Nuremburg trials, the United States has treated not only those who have violated laws of war as war criminals, but those who conspire in these actions. Just because a lawyer says something is legal because it is his job as a lawyer does not make it right. After all, lawyers are not above the law. Consider this from John Balkin:

"Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. . . . .

Orin [Kerr] wants to know whether John [Yoo]'s theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John's theories of Presidential dictatorship are consistent with the Constitution's text and underlying principles, they are not."

Mark Hahn said...

Frontline did a fairly in depth documentary about this a while back with some very interesting interviews, including John Yoo. Here's a link:


Yoo and some of his colleagues went well beyond simply being diligent lawyers. Particularly in the interviews with Yoo, it's quite apparent that his ideology impairs his objectivity, and I suspect that's why Ashcroft passed on putting him in charge of OLC.

Very cool blog Mr. Johnson, its refreshing to hear informed discussion rather than the pundits.