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John Yoo, Hired Gun

After years of legal wrangling, the U.S. Department of Justice yesterday released a 2003 memo by then- Deputy Assistant Attorney General John Yoo that offers legal justification for the use of torture to interrogate suspected terrorists held abroad.  The Justice Department has since withdrawn Yoo's offensive 81 page memo (available in two parts, here and here) and launched a formal investigation into whether DOJ attorneys provided the Bush administration with poor legal advice on waterboarding and other forms of torture.  However, it is yet unclear whether Yoo's memo, which deals only with interrogation,  will be part of the inquiry.

Of course, even if the DOJ doesn't investigate Yoo's memo, that doesn't mean that Yoo gets a free pass.  Today's blogosphere is brimming with criticism of Yoo and his memo -- and the outrage doesn't surprise me.  Let's face it, Yoo's memo opened the door for unconscionably inhumane treatment of prisoners and seriously damaged the United States' reputation abroad.  At the same time, I don't see how Yoo acted any differently than either (1)the way that we train lawyers to think in law school (i.e., to cleverly create arguments like "torture is self-defense") or (2)the way that some of us want lawyers to conduct themselves -- as hired guns, rather than naysayers who are too willing to put the kibosh on new ideas.

Before I delve further into my own opinion, here's a sampling of what other bloggers are saying about the Yoo memo:

For Scott Greenfield at Simple Justice, even the harm caused by one evil criminal defendant "smells trivial" compared to Yoo, who Greenfield refers to as "the fellow who prepared a memo to the Department of Defense telling them that torture was as American as apple pie."  Of course, while some dangerous defendants go to prison, Yoo had the privilege of going to Boalt Hall and writing a book entitled The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press, 2005).  In a similar vein, Barry Yourgrau at the Huffington Post asks why Yoo is still allowed to teach at Berkeley when he was one of the prime formulators of the "blatantly inadequate and outrageous legal opinions that justified the Bush administration's use of torture."

Glenn Greenwald posts a lengthy opinion at Salon, which provocatively asks:

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

Greenwald writes that even though the DOJ rescinded the Yoo memo, the underlying theories of "omnipotent executive power" (which Yoo used in some instances to justify torture) remain in place.  And Greenfield also argues, forcefully, that DOJ appointees should not be immune from criminal prosecution for endorsing illegal conduct such as torture.  For those interested in further lengthy analysis of the DOJ lawyers' role in authorizing torture, see Scott Horton's piece, The Green Light, in Harper's.

Ever the professor, Orin Kerr, grades Yoo's memo in a post at Convictions. Kerr writes:

I'm struck by how lawyerly it reads. It cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer's work.

But Kerr finds fault with the "quality of the doctrinal analysis," which "is generally poor."  For example, Yoo loses points for concluding that the "self-defense" justification for torture is fact specific... without providing examples of facts where torture would (or would not) be appropriate under the self-defense theory.

I read roughly half of the 81-page memo, and I too agree that it's lawyerly.  From what I can tell, Yoo does not omit opposing or difficult arguments.  To his credit, he raises them, but then dispenses with them in short order.  For instance, beginning at p. 24 of the memo, there's a lengthy discussion of various federal criminal statutes, such as assault, maiming and interstate stalking that might cover torture.  And though Yoo goes on to conclude that these laws do not apply, he does flag these issues -- which means that others could have inquired about them further.

But my real gripe with much of the criticism of the Yoo memo is that it subjects him to a double standard.  If the question of whether use of torture in military interrogations of terrorist suspects were a law school exam question, I would bet that Yoo would have gotten extra points for coming up with the "self-defense" argument, or for arguing that executive power during a time of war trumps other considerations.  Law schools reward students for issue spotting on exams -- the more issues you spot, the more points you get -- with little value assigned to whether the added arguments make any sense.  If we don't want to produce lawyers like Yoo, perhaps law schools should reconsider the system of using a single issue spotting exam to determine grades.

As for what Yoo did -- well, he did what he was told.  Yoo acted as a hired gun. The administration said that it wanted to use torture to interrogate suspects and Yoo found a way to make it happen.  Isn't that what we often ask of our lawyers in a business context -- not to be naysayers, but to be creative and find ways to navigate around legal obstacles to push a deal through?  True, the consequences of Yoo's actions are far, far worse than if, for example, a business lawyer finds a way to cram a shady deal through a legal loophole. But otherwise, I don't see much remarkable about Yoo's conduct.  The DOJ isn't the first or last client to want its lawyers to act as a hired gun, and Yoo isn't the first, nor will he be the last lawyer to follow a client's marching orders.

Treating John Yoo as a symptom of all that's wrong with the Bush Administration misses the larger point: that lawyers need to know when to say no to a client.

Posted by Carolyn Elefant on April 2, 2008 at 04:06 PM | Permalink | Comments (5)

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