A few weeks back I commented on a petition organized by Berkeley law students calling on Professor John Yoo to repudiate the opinions he expressed in legal memoranda while working at the Justice Department or resign his post at the law school (see posts here, here, and here). These posts produced some back-and-forth with Michael Anderson of Mere Dicta (see, e.g., here, here, here, and here). Now that I (finally) have some time to revisit the issue, I thought I’d see where things stand.
To briefly recap, my initial claim was that the petition was an attack on academic freedom and the ability of lawyers to take unpopular positions on behalf of unpopular clients – here to provide legal counsel to a controversial and contested matters of law. I maintained that Prof. Yoo took a defensible legal position (though I have not sought to defend it), while Mr. Anderson and his fellow petitioners argued that Prof. Yoo’s actions amounted to aiding and abetting the commission of war crimes, including the mistreatment of prisoners in Abu Gharib. I still maintain that asking Yoo to recant or resign is absurd, while Mr. Anderson appears to have backed off his claim – made on his blog and in e-mails to me – that Prof. Yoo was guilty of aiding and abetting war crimes and could be prosecuted under U.S. law. He now seems to acknowledge that any claim of “aiding or abetting” would at least require that Prof. Yoo has actual knowledge that U.S. officials would commit war crimes (if that is what the alleged actions amounted to), and that this is at least “debatable.” I would go farther, saying there is no evidence such actual knowledge existed.
In another post, Mr. Anderson commends Julie Hilden’s column on the controversy. While critical of Prof. Yoo, she stops far short of endorsing Anderson’s view. To the contrary, she explicitly rejects the petitioners “specific accusation: That Yoo, in writing his memo, aided and abetted war crimes,” and rejects their call for Prof. Yoo to recant or resign.
Yoo expressed the view that accused Al Qaeda and Taliban members aren’t covered by the Geneva Conventions. The bottom line: They have no legal protection against torture or other abuse.
Yoo’s view that the Geneva Conventions do not apply would presumably have covered suspected Iraqi resistance or Al Qaeda members in Abu Ghraib and other prisons, too. However, as he noted in a recent Wall Street Journal Op Ed, the President “announced” early on that he deemed the Geneva Conventions to apply in Iraq, and must now abide by his word.
Thus, it’s not fair to link Yoo’s memo to the Abu Ghraib abuses – as some students have done. Any influence Yoo’s memo might have had as to comparably situated prisoners in Iraq, was probably superseded by the President’s own announced view.
But it is fair to hold Yoo morally responsible for the causal role his memo may be playing outside Iraq.
In other words, it is one thing to criticize Prof. Yoo’s legal views – on moral or legal grounds – but quite another to blame him for the mistreatment of prisoners in Iraq. She continues:
Suppose the memo did cause abuses. Is it also fair to say, as students have, that it “aided and abetted” them? From a moral point of view, possibly. But from a legal point of view, probably not.
Even if Yoo’s Geneva Convention views are indeed a blatant misreading of the law, as human rights groups claim, it would be very dangerous (from a legal point of view) to deem the giving of even specious legal advice a form of aiding and abetting.
There are many strong institutional reasons not to make lawyers – in particular, here, government lawyers — criminally responsible for “aiding and abetting” their clients’ actions: Most obviously, to put governments’ attorneys on trial for war crimes would only deter future lawyers from candidly advising heads of state – a potentially disastrous consequence.
Similarly, there are strong institutional reasons not to put professors’ jobs in jeopardy because they gave advice to the government, no matter what that advice may have been. For one thing, such advice could become a pretext for removing a professor whose academic articles are controversial, thereby risking an impingement on academic freedom. (Yoo has suggested that is what is happening here, and it’s certainly possible – although it’s also possible that it is truly the memo itself, and its possible causal connection to abuses, that has sparked students’ outrage.)
Speciousness can also be too much in the eye of the beholder to form the basis for criminal penalties, or for removal from a position in a job integrally involving free speech. (Indeed, constitutional prohibitions against vagueness in criminal statues strongly counsel keeping lawyers’ advice out of the criminal realm entirely.)
In sum, even if we assume Prof. Yoo offered erroneous legal advice, and even if we believe that this contributed to the mistreatment of detainees, this hardly means he has committed a crime or should be drummed out of the academy.
As for another issue left hanging: Mr. Anderson appealed to ABA Model Rule of Professional Conduct 1.6 for the proposition that an attorney has a duty to act to prevent harmful acts by his client. Yet this provision only provides that an attorney may reveal otherwise privileged information to the extent “necessary . . . to prevent reasonably certain death or substantial bodily harm.” (It also provides for additional exceptions to the attorney-client privilege not relevant here.) This is hardly a license for a lawyer to fail to provide a client with requested legal advice or otherwise act contrary to the client’s interests. Nor would it justify Prof. Yoo giving anything other than his honest assessment of the extent to which the relevant treaties and laws govern the treatment of detainess. Remember, Prof. Yoo’s memo didn’t say “Go torture suspected terrorists.” It said “This is the extent to which relevant laws control how the government must treat suspected terrorists.” There’s a big difference, even if the memo did contribute to an unpleasant outcome.
Prof. Yoo was asked to provide his opinion on the extent to which the Geneva Conventions applied to alleged unlawful combatants, what actions could result in prosecution under U.S. law, and related questions. All the evidence suggests Prof. Yoo provided an honest answer, and he continues to defend his views. Whether or not one believes Prof. Yoo got it right, there is no evidence Prof. Yoo violated his obligations as an attorney. To the contrary, it seems fairly clear to me that he operated wholly within the scope of Model Rule 1.2(d) which provides:
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 (emphasis added).
Berkeley students, law professors, bloggers, and pundits should criticize Prof. Yoo all they like to the extent they believe his views are wrong-headed, unjustified, or immoral. But Prof. Yoo’s critics cross the line when they suggest he committed a crime and call upon him to recant or resign.
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