Legal Commentary

How could two really smart guys authorize torture using "one-sided legal arguments" that have "o foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better, and that raises another issue, the most troubling. Who was the client? The lawyers told the President what he wanted to hear, but the nation was their client, and its sole interest was in thorough and independent legal analysis. Neither the President's political agenda nor the authors' views of what the law should say can be allowed to slant the OLC's work. So maybe the best and brightest lawyers got it so wrong because they forgot whom they served. Maybe they acted politically, not professionally. If so, we are dealing with a perversion of law and legal duty, a betrayal of the client and professional norms, not mere incompetence, which would be bad enough. Whatever the reason, Jarrett should find that this work is not "consistent with the professional standards that apply to Department of Justice attorneys." Jarrett must hold the lawyers accountable if he means to restore OLC's reputation and vindicate the rule of law.

Yet Sandy's point is well is worth noting: The lawyers in FDR's Justice Department also stretched the law to the breaking point to get around an isolationist Congress, because they believed that the threat from Nazi Germany was dire. If Yoo and Bybee believed that the United States was under a serious threat of future terrorist attacks that only torture might prevent, why should we not excuse their twisting of law just as we today excuse the Roosevelt Justice Department?

Is the difference that the previous twisting of the law was somehow less outrageous? Is it that Yoo and Bybee's judgments about the danger of a future attack were greatly overblown, or that their judgments about the necessity of torture to prevent such attacks were simply unreasonable? Is the difference that Roosevelt did not seek to authorize something evil in itself-- torture-- but only sought to help Great Britain resist Nazi aggression, and to push America closer to war, a war that was ultimately justified by history? But if so, does our conclusion that that Yoo and Bybee acted unethically ultimately depend on our assessment of the good or evil that President Bush's detention policies have had for the world? Or can we answer the question of their ethical conduct in isolation from that question, since, of course, we do not yet know what history's judgment will be?

Is the difference that Yoo and Bybee offered a general theory of presidential dictatorship and proclaimed a right to ignore Congressional laws when the President acted as Commander-in-Chief, whereas Roosevelt's lawyers made no such general claims? If so, the ethical problem is not the apology for torture but rather Yoo and Bybee's flagrant infidelity to the basic principles of our constitutional system of checks and balances. But in 1939 and 1940, could no one have leveled a similar charge at Franklin D. Roosevelt?

Finally, following along the lines suggested by Scott Horton, is the difference that Yoo and Bybee conspired to help the President and his aides commit war crimes, including violations of the Geneva Conventions; so that one who commits (or conspires to commit) war crimes necessarily violates professional ethical obligations? Did the lawyers in Roosevelt's Justice Department (or the lawyers who advised Bill Clinton that it was permissible to invade Kosovo) not equally conspire to violate international law? Is the difference then that the nature of the violations are different, that one is a grave breach of international human rights and the others are not?

Perhaps ultimately this may be where the difference must rest, for as Eric Posner and Oona Hathaway would remind us, presidents do not attend to every aspect of international law with equal scrupulousness; if we thought that advising presidents to twist or even ignore international legal doctrines was grounds for an attorney's discipline or disbarment, the line for sanctions and investigations would be very long indeed.

My own conclusion is that Yoo and Bybee did violate their professional obligations to the President as constitutional actor, and to the country as a whole. The reason is a combination of their outrageous theory of presidential dictatorship and their all too eager assistance in what appears to be a conspiracy to commit war crimes. But I do not pretend that the question is at all an easy one.

Note that even if I am right that Yoo violated the canons of professional ethics, he has not been sanctioned by any court or professional organization, much less convicted of any crime by a domestic court or international tribunal. This is important to keep in mind in the debate over whether the University of California should discipline or investigate him.

Full post as published by Balkinization on April 12, 2008 (boomark / email).