Newsweek‘s Michael Isikoff and Daniel Klaidman are reporting that the soon-to-be-released report from the Department of Justice’s Office of Professional Responsibility will “clear” former OLC attorneys John Yoo and Jay Bybee of professional misconduct. They report:
While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.
In addition, the OPR report “will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process” and appear to support claims that some portions of the “Torture Memos” were added to provide legal protection for CIA personnel who feared torture prosecutions.
Constantin says:
This is good news for attorneys now working in the Obama Admin, who will be similarly witch hunted for some thing or another (think Black Panthers or Chrysler bankruptcy or stimulus bribery or civilian-killing Predator strikes) under a Pawlenty or Romney Administration in four or eight years.
January 30, 2010, 1:32 pmChrisTS says:
I suppose that a report that orignally charges violations of professional obligations but is edited by one person to reduce the evaluation to ‘poor judgment’ does something like ‘clear’ the persons investigated.
[I've added quotation marks to the OP and headline as I am merely repeating the Newsweek reporters' claim. -- JHA]
January 30, 2010, 1:33 pmAnonsters says:
That is a very interesting title for the post…
January 30, 2010, 1:39 pmArthurKirkland says:
From even the weakened condemnation, it seems reasonable to infer that those who promoted Bybee and Yoo — in one case, to a position of judging others, in the other, to a position of teaching others — also demonstrated poor judgment.
A man of strong character, in the position of either Yoo or Bybee, would resign.
Fortunately for their employment horizons, neither man has exhibited the appropriate character, and each will escape accountability for his conduct.
January 30, 2010, 1:40 pmSoronel Haetir says:
Isn’t it nice how the bureaucracy protects its members against threat even when those members are ostensible opponents? Professional courtesy at its finest. Yet more proof that we need a fourth branch of government whose sole job is to threaten the other three while holding no positive power of its own.
January 30, 2010, 1:42 pmObama Caves On KSM Trial in NYC « TeeJaw says:
[...] OPR Clears Yoo and Bybee [...]
January 30, 2010, 1:43 pmHarpsichord says:
As to Bybee, if bar association censure would lead to an impeachment inquiry, why wouldn’t he just resign/withdraw from whatever state bar he is a member of? Does he need to be a lawyer to be a judge? I don’t think so.
January 30, 2010, 1:43 pmSecurityGeek says:
So a group of government lawyers think that other government lawyers should be able to give any advice without consequence, even if that advice ends up massively setting back the national security goals of the US, leads to the death of captured enemy individuals, and is publicly ridiculed by even more lawyers.
In brief, “Government lawyers say that government lawyers can do whatever they want. Film at 11.”
I’m glad to be part of a profession where mistakes have consequences.
January 30, 2010, 1:43 pmArthurKirkland says:
Integrity? Shame? Accountability? Regret? Decency?
January 30, 2010, 1:47 pmegd says:
Don’t assume all lawyers have consequence-free mistakes. Most of the bar associations are fairly aggressive investigating claims of attorney misconduct.
Admittedly, that only applies to private lawyers, and generally not those being paid by the government.
January 30, 2010, 1:47 pmChrisTS says:
JHA:
Just to be clear (myself), I did not intend to scold you; my comment was simply reflective.
January 30, 2010, 1:48 pmmethodact says:
Paul Craig Roberts refers to DoJ as:
“U.S. Department of Justice (sic)”
January 30, 2010, 1:50 pmAnonsters says:
A person alleging to be “ChrisTS” at 1:48 pm has downgraded the assessment of ChrisTS at 1:33 pm. We need a VC investigation empaneled immediately.
BTW, see also, http://emptywheel.firedoglake.com/2010/01/29/opr-report-altered-to-cover-bush-doj-malfeasance/
January 30, 2010, 1:57 pmMartyA says:
I simply do not believe that a political hack like Holder would not keep these members of the previous administration twisting in the wind, just because he can. The ultra-lunatic segment of his political masters will protest and, he gets nothing out of it.
January 30, 2010, 2:23 pmThe DoJ official allegedly authoring/issuing this report will probably be promoted to Chief Federal Weevil Inspector, Textiles Division, Port of Houston, before the report is issued.
Why now?
ChrisTS says:
:-) But, it was a clarification, not a downgrading!
January 30, 2010, 2:29 pmrpt says:
It always helps if the wrongdoers allies/representatives get to vet and edit the report before it is published.
January 30, 2010, 3:39 pmConstantin says:
For better or for worse, this is the way the story is being construed both in hard news reporting and in commentary from both the Left and Right.
January 30, 2010, 3:39 pmorca says:
“Stupid not evil” is the official word on Yoo?
I can buy that.
January 30, 2010, 3:40 pmMark T. Tillar says:
Good correction of a previous bad call by the DOJ. Now maybe the DOJ can get back to the Roger Owensby,Jr. case and explain it’s actions.
January 30, 2010, 3:41 pmmethodact says:
a Dim Mak on justice
January 30, 2010, 4:17 pmDavid Schwartz says:
I would say that not only the left will be upset by this report, and not because it relays a truth that they disagree with.
January 30, 2010, 4:45 pmEric Rasmusen says:
I will cynically suggest that the report does not want to make a charge serious enough that it will be referred to a forum in which the two lawyers attacked get to refute it. This way, they can’t.
It’s much like a prosecutor who says, “I have strong evidence that John Doe is guilty of child molesting, but I’ve decided not to prosecute.” If he goes ahead, and it turns out he has no evidence, John Doe looks good and the prosecutor looks bad.
January 30, 2010, 4:49 pmAnonsters says:
A “truth,” eh? So the people who actually conduct the investigation and write the report send it up the food chain, where a single person in DoJ alters its conclusion, and in its present form, it’s “a truth?”
There’s some truthiness in what you say.
January 30, 2010, 4:52 pmOren says:
A single person who is widely respected across party lines — his reputation of integrity precludes the argument you are making here.
January 30, 2010, 5:00 pmbailey says:
Let’s hope current administration lawyers are much more cautious. If a few thousand people die because of it, at least they’ll be able to maintain their bar memberships with pride.
January 30, 2010, 5:06 pmAnonsters says:
Just as a matter of principle, that is absolute nonsense. I don’t care what your reputation is. If you do something that raises questions, expect to be questioned.
January 30, 2010, 5:15 pmwm13 says:
“Most of the bar associations are fairly aggressive investigating claims of attorney misconduct.”
You must belong to a different bar association than the one I do. Just for example, if the judge in the SEC v. BofA case finds that Wachtell screwed up, the chance of the NYS bar investigating Wachtell is absolutely zero. Or if some REMIC investors find that some of Thacher’s or Cadwalader’s theories don’t quite hold up, again, the chance of a bar investigation is zero.
But I agree, if a solo practitioner steals some escrow money, then, after being convicted and sent to jail, he can also expect to be disbarred. That kind of aggressive, we got.
January 30, 2010, 6:04 pmAnonsters says:
“…screwed up…” … “…don’t quite hold up…”
Neither of which describes an action rising to the level of a violation of one’s professional responsibility. Which is what OPR found here, prior to Margolis’ adventure in editing.
January 30, 2010, 7:09 pmJay says:
wm13–I agree bar associations are more aggressive in going after solos or small firms than megafirms. But I don’t agree that those solos or small firms have to go to jail before state bars will do anything about them. My monthly bar newsletter, plus some personal knowledge, is to the contrary.
January 30, 2010, 7:31 pmSteve says:
Not sure why they wasted their time writing this report. Everyone here seems to have already known what the correct answer was!
January 30, 2010, 7:33 pmleo marvin says:
I hope we’d all want someone in Margolis’s position to err on the side of the person charged, whoever it is. I’m unaware of anything to suggest he doesn’t honestly believe the applicable standard isn’t met for a finding of professional misconduct. None of that conflicts with our reasonably drawing our own conclusions about Yoo and Bibee’s culpability on the same evidence.
January 30, 2010, 7:38 pmOren says:
Raise questions, fine, but you have to realize that he starts from a position of respect. When someone spends 40 years of your life being an honest person it’s not surprising that people tend to assume that he has made an honest assessment.
So yeah, question all you want, but he starts with a pile of chips.
January 30, 2010, 7:40 pmAnonsters says:
The problem is that OPR is the office specifically responsible for investigating situations or cases where there may have been a breach of professional ethics; that’s how they earn their bread. Note the role of Margolis explained in the 2008 DoJ OIG report into the firing of the 9 District Attorneys:
That doesn’t mean that he revises the findings of the OIG or OPR.
Second, this isn’t a criminal case. It’s an ethics investigation. The Rule of Lenity doesn’t, and shouldn’t, apply.
So, in summary: It doesn’t matter whether he honestly believed the applicable standard wasn’t met; the question is: why was he revising the OPR’s findings and conclusions? Why is that an acceptable function for him to perform, as someone not in charge, or part of OPR?
January 30, 2010, 7:49 pmAnonsters says:
Or does he?
January 30, 2010, 7:51 pmPorkchop says:
The New York Bar did a heck of a job whitewashing Kaye Scholer’s representation of Charles Keating and Lincoln Savings back in the day. My former colleagues and I did manage to get $43 million in restitution and banned a couple of them from ever being involved in banking in any way, but the New York Bar “investigated” by not asking us about the evidence and then gave all of them a pass. Yeah, they’re a tough group of ethical enforcers.
January 30, 2010, 8:12 pmleo marvin says:
It’s not clear to me from that language that he does or doesn’t have that authority.
You may be right, but I’d prefer it did, at least whenever the adjudicator isn’t biased in favor of the person investigated.
Those are reasonable questions. I hope we’ll get answers.
January 30, 2010, 8:45 pmSwan Trumpet says:
Since the Obama DOJ intervened and asked the 9th Circuit to dismiss Jose Padilla’s case claiming he’d been tortured late last year, it’s hard to imagine the same DOJ’s OPR reaching an inconsistent conclusion by faulting Yoo and Bybee.
Professor Yoo’s newest book is Crisis and Command: A History of Executive Power, From George Washington to George W. Bush. It’s a thoughtful analysis of the issues involved and well worth reading. Also noteworthy, is that Yoo recently gave an interview to Hoover Institute’s Peter Robinson. Yoo manages to make the point that knowledge of the Constitution earns an “A” at Stanford, but not at Berkeley.
January 30, 2010, 8:45 pmArthurKirkland says:
If this means Prof. Yoo is ready to stop disgracing Berkeley (by resigning), this qualifies as good news.
Would Stanford — or any law school (other than Chapman, I suppose) — accept Yoo as a faculty member after revelation of his role with respect to the torture memoranda? Berkeley was sandbagged.
January 30, 2010, 8:55 pmMark Field says:
Regent.
January 30, 2010, 9:03 pmArthurKirkland says:
I considered listing the extremist schools — Regent, Ave Maria, Liberty — but hoped they would be offended by torture.
January 30, 2010, 9:10 pmSwan Trumpet says:
The video and a transcript is available at Uncommon Knowledge. Professor Yoo appears to gently intimate that he isn’t favorably impressed by the quality of intellectual honesty and scholarship at Berkeley. I’m just reporting. You can view the video and read his book and decide. My suggestion is that folks avoid expressing emphatic positions absent any knowledge of constitutional scholarship.
January 30, 2010, 9:23 pmCornellian says:
Yoo manages to make the point that knowledge of the Constitution earns an “A” at Stanford, but not at Berkeley.
Was he describing his grading scheme?
January 30, 2010, 9:41 pmyankee says:
I have no doubt that the Hoover Institution would be elated to have him. I’m not sure if Stanford considers Hoover Fellows to be “faculty” per se, but Stanford is more than happy to list them on the about the Stanford faculty page.
The law school, on the other hand . . .
January 30, 2010, 9:55 pmArthurKirkland says:
A fitting point in any discussion relating to the torture memoranda, but perhaps not in the manner intended.
January 30, 2010, 9:56 pmMark Field says:
Neither am I, but perhaps for a different reason than he has in mind.
January 30, 2010, 10:27 pmSun Tzu's Nephew says:
I kind of want enemies to be punished….severely. As a dissuasion to others who would attack Americans.
But then, I’m not a leftist scumbag.
January 30, 2010, 10:46 pmDeezrightwingnutz says:
Watching Yoo be interviewed on C-Span right now, and he’s coming off as very bright with an even temperament.
Maybe he’s an evil douche-bag and an incompetent attorney, but he sure doesn’t come across as one. Then again, IANAL.
January 30, 2010, 11:01 pmArthurKirkland says:
Name-calling accomplishes nothing.
More productive: Let’s compare recent administrations by number of Americans killed by terrorists during that adminstration’s watch.
Then we could move on to comparing number of years with a deficit versus number of years with a surplus.
January 30, 2010, 11:39 pmMark Field says:
That’s precisely why I want Yoo punished.
January 31, 2010, 12:35 amorca says:
Isn’t being John Yoo punishment enough?
January 31, 2010, 1:09 amleo marvin says:
So you approve of torture under detention as punishment? This leftist scumbag finds that pretty astounding, and even more so that you’d admit it.
January 31, 2010, 1:42 amrpt says:
This sounds just like California’s system.
January 31, 2010, 2:08 amrpt says:
Unfortunately, Chapman University and John Eastman wre not offended at all by torture.
January 31, 2010, 2:12 amRandal says:
If you would like to live in a country that tortures people, please, by all means, go.
In my experience they are pretty crappy though.
Not even more secure.
January 31, 2010, 3:35 ambailey says:
I don’t think it’s torture. Of course, you can make up your own definitions and write your own memo as to how a practice that causes temporary discomfort and pain but no permanent harm is torture. That’s my blind spot. How many people would you be willing to see die to vindicate your superior moral sense. No leftist ever wants to answer that question.
January 31, 2010, 8:33 amMark Field says:
You’d think so, but self-awareness doesn’t appear to be among his strong suits; I’m not even sure he could pass the mirror test. As Arthur already noted, if, at long last, Yoo had any sense of decency, he’d have resigned by now.
January 31, 2010, 11:02 amOren says:
Oh please, I disagree with him as well but he’s obviously a very intelligent person — watch any of his interviews (CSPAN, The Daily Show) and try to tell me he’s an idiot.
If he suffers from anything, it’s being too clever …
January 31, 2010, 12:28 pmMark Field says:
He can be intelligent without being particularly self-aware.
January 31, 2010, 1:00 pmDaniel says:
I’ll start to buy all the lefty outrage about Yoo and Bybee, when they also call for Martha Coakley to be disbarred or at least disciplined for knowingly using her office to attempt to keep innocent people in prison.
A bit of a tangent I understand, but it needs to be said.
January 31, 2010, 1:38 pmOren says:
Well then I don’t see what self-awareness has to do with it. He was tasked with formulating a legal position, not communing with his inner Yoo.
January 31, 2010, 2:06 pmBenjamin Davis says:
I am curious to see how the report explains how Yoo got from the torture law, to the emergency medical regulations, to the standard he set out which is not backed up by either. This should be interesting. The space between the emergency medical regulations and the standard he put forward is where the dog is buried.
I wrote about this several years ago and, for whatever reason, never heard a response anywhere that speaks to the space between his research and the standard that he proffered. I guess that is the space for “poor judgment”.
This is also in line with a very frequent mantra in government which is “malfeasance at the bottom, misfeasance at the top” or more prosaically sh*t rolls down hill.
Best,
January 31, 2010, 2:10 pmBen
Oren says:
Isn’t losing a gimme Senate race punishment enough? Her career is absolutely toast.
January 31, 2010, 2:18 pmOren says:
It does not. In fact, if you had even read the summary, the report expressly disclaims and sharply criticizes Yoo’s conclusions and reasoning. In fact, that wasn’t news — it was policy since 2006 when the OLC withdrew the original memo. That horse is dead.
The only open question is not continuing to beat on the memo (well after its demise) but whether the drafters were guilty of professional misconduct or merely poor judgment. I can scarcely imagine, after the many words that have been dedicated to analyzing the memos both on VC and at large, how any further analysis could be “interesting” in even the slightest.
January 31, 2010, 2:27 pmleo marvin says:
Mark, I don’t think Yoo’s lack of self-awareness would serve the allegations of his greatest culpability, i.e., that he knowingly fabricated the memos, and lies to cover it up. Isn’t the only explanation for his purportedly believing what he wrote that he’s blinded by ideology, i.e., perfectly un-self-aware?
(I’d been hoping the evidence of his actual mental state would be provided by this report.)
January 31, 2010, 2:57 pmArthurKirkland says:
If she knowingly worked to keep innocent people in prison, that probably isn’t enough.
Abuse of the innocent — torture, limitess detention, torture-facilitating rendition, shuttling people among classifications to avoid constitutional requirements and fundamental decency — is a substantial part of the wrongdoing of the United States government in recent years. Failure to hold those responsible to account is a national shame.
It is never attractive, no matter who is doing it.
Accountability is a huge open question. Those responsible for egregious misconduct have not been held to account. Most have not expressed remorse. Identifying where American conduct ran off the rails has not been completed, and is necessary — let alone “interesting” — for prophylactic purposes as well as for pressing accountability.
January 31, 2010, 3:01 pmAnderson says:
Oren is correct that Yoo is intelligent, which is always why it’s been evident that Yoo was acting deliberately to evade the law, rather than not smart enough to grasp the law.
career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.
So is that why it’s taken so long to release — Margolis had to be persuaded to revise his conclusions?
January 31, 2010, 5:27 pmAnderson says:
for knowingly using her office to attempt to keep innocent people in prison
If there’s proof to support the bolded terms, then go for it. But to a prosecutor, barring evidence of misconduct, a jury verdict of “guilty” is pretty much dispositive. Has the trial judge come out & said he screwed up the trial? Prosecutors don’t work in a vacuum.
January 31, 2010, 5:35 pmBob from Ohio says:
A pearl of wisdom in all the dung being spread here.
Yes, Yoo was doing his part to protect the people in the field. A hero.
January 31, 2010, 6:13 pmMark Field says:
I only raised in connection with his lack of acceptance of responsibility after the numerous flaws in his work have been pointed out and the memos themselves withdrawn. An honest, self-aware person would have apologized and probably resigned his teaching position; certainly Jay Bybee would have resigned his judicial position.
So I accept leo marvin’s amendment to my comments: Yoo is either dishonest or not self aware.
I suppose there’s a third option: stupidity. But that doesn’t seem very likely so we’ll rule it out for now.
Yes, I agree that his greatest culpability would include his self-awareness that he was committing a wrong. I’ve always been agnostic on this point, though, which is one reason why I think investigations of his misconduct are so important. It’s possible that his ideology blinded him to the real import of his actions.
I don’t know enough criminal law to know how this would affect guilt or innocence, but it might affect some people’s view of his morality.
January 31, 2010, 6:27 pmrpt says:
Why don’t you or someone else file a complaint with the Mass Bar?
January 31, 2010, 6:32 pmrpt says:
What field? Certainly not the US, since torture generated only false information and his rationales supported the diastrous war effort. He is no friend of law enforcement or the military.
January 31, 2010, 6:37 pmConstantin says:
None of this is true.
January 31, 2010, 8:45 pmleo marvin says:
Likewise and likewise.
February 1, 2010, 1:32 amreadery says:
Given Justice Stephens’ and Justice Ginsburg’s strong advocacy of torture from the bench — their view that once it is permissable to kill using gruesome procedures — and in war nuclear weapons become an option — it is unconstitutionally irrational under simple rational basis review for government to concern itself with the gruesomeness of the particular procedures used.
How in the world can any of the “tortures” Yoo defended be considered less gruesome than dropping a nuclear weapon on Afghanistan? Given that we could have done so if we wanted to, Justice Stephens makes a strong case that distaste for torture is mere religious superstition — no more rational, as Bertrand Russell pointed out, than distaste for broccoli.
As a secular republic, Justice Stephens argued in Carhart we ought not to be concerned by the superstitious distates for torture that the feebleminded religious folk tend to have. We should be bound by reason, not emotion. And distaste for torture is emotional in character and therefore not a proper motivation for a secular republic. A secular republic should, in Justice Stephens’ view, be concerned solely with the liberty of its citizens, not pretty dainty niceties towards those it can just as easily nuke as rip limb from limb.
February 1, 2010, 3:19 amOren says:
Holding political branches responsible for “misconduct” (here defined as adopting a policy with which you disagree) has never been part of the American system.
Just imagine what would have happened in 1800 if the first thing Jefferson did was prosecute the Adams administration over the Alien & Sedition Acts. A&S was just as egregious as anything Bush did (moreso, IMO) but Jefferson just let it slide into the dustbin of history.
Or working deliberately to create the maximum legal space for his client’s desired policy. That’s what we pay lawyers for, especially the very clever ones.
Or, as discussed above, a well-respected government servant decided to do a thorough job.
He can’t win in this analysis — if he quickly revises the report he will have acted hastily and without due care. If it takes a long time, well, that’s evidences agains him too.
Or, while accepting the judgment of the OLC with regards to official policy, he respectfully disagrees and continues to publish rather coherent (if maybe incorrect in some sense) papers and arguments expressing his views.
February 1, 2010, 12:01 pmMark Field says:
IMO, no honest person, not blinded by ideology, could hold such views as Yoo has expressed.
February 1, 2010, 12:57 pmTweets that mention The Volokh Conspiracy » Blog Archive » OPR Report “Clears” Yoo and Bybee -- Topsy.com says:
[...] This post was mentioned on Twitter by Warren Jarog, tim gier and andrew, Eugene Volokh. Eugene Volokh said: OPR Report “Clears” Yoo and Bybee: Newsweek’s Michael Isikoff and Daniel Klaidman are reporting that the soon-to-b… http://bit.ly/cfmgiA [...]
February 1, 2010, 2:25 pmzuch says:
Pardon me, but isn’t this an Office of Professional Responsibility [OPR] report? Are they part of the OLC or are they a different group? From my link, it looks like they are not part of OLC.
Cheers,
February 1, 2010, 2:25 pmzuch says:
Strangely enough, neither the CAT nor 18 USC § 2340 et seq. require “permanent harm”…. Someone just manufactured this ‘requirement’ out of thin air (wonder who would do such an unprofessional thing?). Not to mention, said people ignore such things as “shell shock”/PTSD etc. It’s the ol’ “don’t leave any mark” theory of torture … which used to be for the purpose of denying mistreatment at all, rather than just a justification that the (admitted) treatment was legal.
Thanks for being forthright.
Cheers,
February 1, 2010, 2:51 pmlosantiville says:
Since the existence of a Department of Justice at the national level is enough of a human rights violation to begin with, I don’t think Yoo and Bybee owe any specific apologies. Police power is a local government issue. Military justice is a military issue. That leaves a big hole where Main Justice is.
There should be no federal crimes beyond treason or piracy. Let the cops and the troops handle other problematic interactions.
February 1, 2010, 2:57 pmOren says:
And no honest person, not blinded by the Devil, could reject Jesus Christ and the authority of the One True Church.
And yet it moves.
Yes, down with the Judiciary Act of 1789!
So much for levying duties then. Eh, that was probably put in Article I by accident.
February 1, 2010, 7:24 pmOren says:
That’s correct.
The OLC has long since disclaimed Yoo’s memos (2006?) and it is their contrary judgment (confirmed here) that Yoo no doubt accepts as binding Executive Branch interpretation even despite his disagreement.
You are correct though, I was unclear.
Indeed.
OTOH, the latter does require that the pain be severe, a word whose normal definitions (“intensely or extremely bad”) are not particularly useful in shedding light on what is meant or against what it is meant to be judged. It seems to me that most people* simply project onto the word the precise definition that captures what they think, on independent policy grounds, should be forbidden and leaves undisturbed any method they think ought not be.
Hence you get Yoo arguing that the pain associated with waterboarding is not ‘severe pain’ because he was already in favor of waterboarding on policy grounds. Meanwhile liberals contend that something as passive as solitary confinement can cause ‘severe pain’ that amounts to torture– again, because they already supported a ban on solitary confinement and are just projecting their preference onto the statute.
Honestly, I’ve come to the conclusion that the argument simply cannot be resolved at the level at which it’s debated — the terms are too loaded and everyone’s conclusions are more or less forgone based on issues entirely divorced from the text of the statute (which doesn’t even have much to work with). I include myself in this group — I cannot formulate even for myself a position that I believe is untainted by my beliefs, a priori about interrogation and national security.
* Almost certainly including the representatives that voted for 18USC2340, which is extra problematic in terms of legislative intent, if you are inclined to put stock in that sort of thing.
February 1, 2010, 7:38 pmrpt says:
Well, thanks for giving it your best shot.
February 2, 2010, 12:07 amShannon says:
The part of this I’ve never understood is this:
A lawyer is asked by his client to find an argument that some action is legal. He then goes and finds an argument to that effect. Said argument is almost certainly wrong, but it is, in at least one sense, plausible.
How has the lawyer done anything wrong?
If I pay a lawyer to come up with an argument that says that it is legal for me to rob a bank, and I then rob a bank and get caught, is my lawyer guilty of anything, even if I use his argument at trial and get convicted anyway?
There’s a huge distance between saying that John Yoo’s theories of executive power in wartime are nonsense, (as I think they are,) and saying that he has committed any crime or professional infraction by articulating them to his clients. It’s not illegal to be wrong, even if other people violate laws after you tell them it’s OK.
–Shannon
February 2, 2010, 5:38 pm