An interesting report from Jan Crawford Greenburg:
News reports yesterday made much out of the fact that a draft report about the so-called “torture memos” doesn’t recommend criminal prosecution for DOJ officials John Yoo and Jay Bybee, but instead would only refer them to their state bars for disciplinary proceedings.
Setting aside that my friend Mike Isikoff reported this back in February, the flurry of reporting is baffling for another reason: It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.
That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.
As for Bybee, Greenburg reports that neither DC nor Nevada has a comparable limitation period, "But how strange would it be to only refer Bybee, when his involvement largely amounted making a few edits and signing Yoo’s legal work?"
John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.
Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math.
Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
That still doesn't help on the first August 2002 memo, which I believe was leaked in May 2004 (and is the more egregious of the two); but I don't see how a memo kept secret until April 2009 can be said to have had its deadline run in 2007.
Note: It should be.
MR seems to make a good point about Yoo's exposure to discipline in D.C. whether he ever was admitted there or not. He certainly did "provide[] ... legal services in [that] jurisdiction."
BTW, if you follow the link to Greenburg's blog post, you will find a link to the Pennsyvania rules. It would be helpful to this discussion if someone could post the equivalent for D.C. and Nevada.
Oh cmon! That's just ridiculous on its face. Is he going to assert he never bother to read the documents he was signing?
I think the reference was to:
Presumably, the memos and other legal services were provided in DC.
Also-the McDade Amendment states: "An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State."
The definition of "attorney for the Government" is given in 28 CFR § 72.2, and appears on a quick glance to be broad enough to cover Yoo.
I agree. She is stretching that point rather shamefully. Bybee's signature as head of the office was quite significant.
The reporter is definitely wearing her sympathies on her sleeve in this blog post. Perhaps that kind of advocacy is acceptable in a journalist's blog, which is more like an opinion column than a news report.
I'm not clear at all about what that discipline could be. Presumably PA isn't going to let D.C. make the call as to disbarring Yoo, for ex? Or is that how it works?
I agree. She is stretching that point rather shamefully. Bybee's signature as head of the office was quite significant.
Damn straight. She should read Rule 11 sometime.
should be changed to
Assuming (and it is by no means clear) that the McDade amendment has the effect of directing the DC Bar to treat Yoo like a DC-barred lawyer, the opinion, as I read it would apply the law of his admitting jurisdicition in which he principally practices. That would be Pennsylvania, save that he probablyd oesn't practice there — so we would then apply a predominant effects test and who knows where the predominant effects would lie.
More importantly, since Yoo is not a member of the DC Bar, the only action the DC Bar could take would be to refer him to Pennsylvania ....
1. Is it possible that the SoL cannot be used as a shield if the report was deliberately delayed? or
2. Is it possible that the SoL runs when the document becomes declassified?
I mean, its the same sort of catch-22 argument that the Gov't used, successfully for a time, in the state secret charity case.
If you make it illegal to reveal the objectionable material until it is declassified, then SoLs could be abused to avoid prosecution by a gov't figure misusing the classification powers.
Are you seriously arguing that the "predominant effects" of Yoo's opinions at OLC were in Pennsylvania?
I have not conducted any systematic research on the topic, but in my experience, it is exceptionally rare for an attorney to be disciplined for poor substantive advice or substandard lawyering. Almost all disciplinary actions in New York, for example, involve either embezzlement of client funds from escrow accounts, convictions of crime, or neglect of client matters, or some variant of the above. They are invariably clear-cut open-and-shut matters, quickly concluded, and designed to speedily suspend or disbar lawyers who are clearly incompetent, wholly indifferent to their clients' needs, or whose conduct otherwise presents a continuing palpable threat to the client community.
On the other hand, prosecutors who unlawfully withhold exculpatory evidence, defense lawyers who render “ineffective assistance” to their clients, lawyers who botch estate plans by ignoring germane estate tax regulations, attorneys who miss statutes of limitations or other filing deadlines to their clients’ permanent detriment - none of these is professionally disciplined.
In the criminal arena, unacceptable lawyering by prosecutors or defenders can result in the vacatur of the underlying conviction, and though they may suffer reputational damage, the attorneys are free to continue practicing law without fear of answering to disciplinary authorities. On the civil side, substandard practices can be remedied by legal malpractice actions, which abound these days. And lawyers who lose malpractice actions against them are not suspended or disbarred as a result.
I can offer a guess as to why disciplinary authorities normally don’t involve themselves in sanctioning attorneys for poor lawyering. First, there are other remedies available (noted above), and the authorities do not want to be used as indirect collection agencies for aggrieved clients. Second, most disciplinary authorities are understaffed, not well-paid, and do not attract top-drawer legal talent — they do not feel competent to second-guess practitioners, particularly when so many lawyering choices are matters of judgment about which reasonably competent &experienced lawyers can disagree. Third, sanctioning lawyers for judgment calls would result in unduly protracted litigation, invariably devolving into inconclusive battles of legal experts. Fourth, sanctioning attorneys for erroneous substantive judgment calls can too easily drift into sanctioning attorneys who either bring controversial lawsuits or who defend unpopular causes.
So, again, precisely which disciplinary rule in which jurisdiction have Yoo and Bybee violated?
A great many, maybe most, federal attorneys in DC are not members of the DC bar. There's no requirement that they join so long as their only client is the federal government (incidentally, that seems to be the case in a great many jurisdictions, though generally local federal offices have internal rules that their attorneys be members of the local bar).
How do you figure? Lawyers in an exclusively federal practice are not required to gain admission in the state where they are physically practicing. This lets the government handle federal matters in a uniform manner, at least in theory. To change it, you'd need to be able to articulate a rule that is uniformly applicable, not just targeting John Yoo or a particular office. The alternatives I came up with are requiring licensure, 1) any place a lawyer sits; 2) any place a lawyer does work; 3) any place a lawyer's work has substantial effects. #1 would have the effect of making it extremely difficult for government lawyers to have a national practice. Engaging in multi-district enforcement litigation, for instance, might require a large team of attorneys to take several bar exams each, and / or pay waive-in fees, where reciprocity is available. # 2 is a failure for similar reasons, again especially in practices involving multiple districts or travel. #3 would be remarkably unworkable, requiring many lawyers on the policy side (like Yoo) to be licensed in 50 states and a number of territories.
The final issue is DC Bar membership isn't exactly like getting into the Skull and Bones or for that matter most other state bars. They have 50 state reciprocity. You fill out some paperwork, pay some money, demonstrate you're licensed to practice somewhere else, and they let you in. There are some sharp cookies running the D.C. Bar and they offer some of the best CLE around thanks to the wealth of talent they draw from for instructors, but it isn't quite the selective and prestigious body that a lot of state bars (supervised by eminent appellate courts and with high barriers to entry) are. They do debar a lot of attorneys for embezzlement of client funds though, I'll give 'em that.
Whatever the predominant effects may be, the important part of One Man's View's comment is probably the end--what can DC do to him, other than refer him for sanctions to a jurisdiction that can't sanction him any more?
DC Bar Rule 49(c) lists exceptions to those who need to be licensed to practice law in DC.
(c) Exceptions. The following activity in the District of Columbia is excepted from the
prohibitions of section (a) of this Rule, provided the person is not otherwise engaged in the practice of law or holding out as authorized or competent to practice law in the District of Columbia:
(1) United States Government Employee: Providing authorized legal services to the United States as an employee thereof;
(2) United States Government Practitioner: Providing legal services to members of the public solely before a special court, department or agency of the United States, where:
(A) Such legal services are confined to representation before such fora and other conduct reasonably ancillary to such representation;
(B) Such conduct is authorized by statute, or the special court, department or agency has adopted a rule expressly permitting and regulating such practice; and
(C) If the practitioner has an office in the District of Columbia, the practitioner expressly gives prominent notice in all business documents of the practitioner’s bar
status and that his or her practice is limited consistent with this section (c).
(3) Practice Before a Court of the United States: Providing legal services in or reasonably related to a pending or potential proceeding in any court of the United States if the person has been or reasonably expects to be admitted to practice in that court, provided that if the practitioner has an office in the District of Columbia, the practitioner expressly gives prominent notice in all business documents of the practitioner’s bar status and that his or her practice is limited consistent with this section (c).
The torture memos were knowingly concealed; they were classified. Jan Crawford Greenburg's characterization of the concealment exception as requiring "that the lawyer concealed a crime" is not supported by the plain language of Pa.R.D.E. 85.10: the exception plainly requires only an act of concealment. The reference to conviction of a crime is connect with a disjunctive, showing that crimes are a different exception rather than a component of the concealment exception.
I'm not familiar with how the disciplinary board has interpreted this rule, however. Perhaps the board has limited it in the way that Ms. Greenburg suggests; although, that would strike me as a poor interpretation of the rule. A better counter argument in favor of Yoo, I think, would be to contend that the rule requires that the knowing concealment be a component of the attorney's unethical conduct. If the board interprets the rule that way then I think Yoo is protected: the concealment was done by Yoo's client (the United States), not by Yoo himself.
While I'm uncertain how this rule has been interpreted, I don't think the plain language alone protects Yoo.
Why not? That defense strategy seemed to work for
Alberto Gonzales.
It's not all that common, but it does happen. Many states now have self-reporting requirements which, for example, require lawyers to report sanctions awards above a certain level. The Bar can (and sometimes does) investigate these.
PA Bar Rule 1.1 requires competence in representation. I have no idea how that Bar enforces that rule (I'm in CA). Other relevant provisions include 2.1 and 8.4.
While timing a prosecution for political expedience is common, we sometimes forget that it's not actually supposed to work that way. Doing it is a form of gaming the system. If you game the system and it turns out you messed up, you have only yourself to blame.
Secondly if it does apply to any lawyer that is in DC could that not also seem to apply to all those politicians that are legislators in DC? That could have some interesting results.
That argument is addressed in the regulations interpreting the McDade amendment. 28 CFR 77.2(h).
Goodness, no it's not. If the Stalinists can't get you in court, they always go for the Two Minute Hate smear campaign option. In fact, in many cases, they go for the smear right away, as they're good at whipping that up, not being constrained by considerations of factualness, honesty, nor empathy.
A compelling good vs. evil narrative in the media beats a complicated legal case with a lot of yes but arguments in it, every time.
2009-2002=7
Given the limitations period in PA is 4,
7-4=3
Since 2x3<7, the limitations period has run.
Too bad Yoo isn't licensed in MA.
Perhaps not. In my own reading of that CFR section, I could not find the Justice Department's Office of Legal Counsel (or, FWIW, the Office of Legal Policy) within that definition.
I'm not clear who is meant to have "tim[ed]" this "prosecution" (well, misconduct report, but whatever) "for political expedience." The Bush Administration? If you view foot-dragging with the intent of never having to deal with the issue as "timing," I suppose you could make that claim, but if so, it was an attempt to "time" it to Yoo and Bybee's benefit, so I'm not sure why it's so self-evident that the "mistake" should benefit them. If you mean the Obama Administration, the DoJ has been under their control for about four months. I don't know how long an OPR report generally takes to turn around, but four months hardly seems unreasonable, provided it is thorough. And more importantly, how can the timing of this report (and the leaks of its contents) be construed as "politically expedien[t]"? Is there some scandal the Obama DoJ is trying to push off the front page? Are Yoo and Bybee suddenly becoming particular thorns in the Administration's side?
All this to say that I can't see why a group of bad actors' decision to conceal other bad actors' misconduct until such time as it would be impossible to punish that misconduct should be construed as a case in which the latter bad actors "deserve" to get off because someone was "gaming the system." If anyone was indeed doing that, it was in order to help Yoo and Bybee.
Do you know of any Pennsylvania Disciplinary Board decisions, or other case law, that gets John Yoo around the exception for cases involving an act of knowing concealment?
The original post says that
That sounds like the release of the investigation was timed for the benefit of the prosecution (i.e. so it would be released under a more sympathetic Obama administration), not that it was being timed for the benefit of the defendants.
Really? When it's timed so that the SOL may've run vs. Yoo?
When the Bush administration sat on it and wouldn't release it?
There is no way it really took FIVE YEARS to do that report. Or four. Or three. Or two.
Marginally more plausible trolling, please.
"micdeniro: "Since 2x3<7, the limitations period has run."
Do you know of any Pennsylvania Disciplinary Board decisions, or other case law, that gets John Yoo around the exception for cases involving an act of knowing concealment?"
Don't ask me. I'm just trying to win the thread.
As Smooth said earlier, while the memos were classified, they were not concealed from the party that commissioned them, which seems plainly to be the "concealment" that the Pa. regulation refers to.
If a lawyer conceals incompetence or illicit behaviour from a client (or opposing counsel or the court, in cases where there's a duty to reveal it), that sure sounds like something that should have no limitations.
But the fact that legal advice not concealed from its commissioner was kept secret by the party that commissioned it doesn't seem like it should open the lawyer up to sanctions later "because the public at large didn't find out about it, because the guy who PAID for it didn't tell anyone".
(Does that mean that if I got a Pa. lawyer to draft a will for me, and I never told anyone about it for a decade, then revealed it... that he could be notionally sanctioned for something in it because I concealed the will from the general public?
Of course, this doesn't really matter, because nobody has so far been able to explain what the notionally sanctionable content in Yoo's memos was...)
I assumed he would fall under "any attorney employed in, or head of, any other legal office in a Department of Justice agency."
Maybe not, though. The definition does seem to focus on enforcement, and § 77.3 seems to limit application to "In all criminal investigations and prosecutions, in all civil investigations and litigation (affirmative and defensive), and in all civil law enforcement investigations and proceedings" which doesn't seem to fit the memos.
Normally it comes up in the investigation/litigation context, which appears to be what the regs deal with.
Greenburg apparently is hinting at (facilitating?) Andy McCarthy's line of attack, that OPR "is largely a bastion of the Left at DOJ," and therefore orchestrated the timing.
It looks like an Alley Oop PR play. If there is "old-fashioned politics" going on here, as Greenberg suggests, I am not sure she is not part of it -- knowingly or not. Quite clearly, she has taken sides in the matter.
The funny thing about that whole partisan conspiracy theory is this: If the SOL-like deadline definitely ran out on Yoo in 2007, why did Mukasey not raise that objection when the draft OPR report was presented to him in late 2008? Instead, he wrote a letter to accompany the report, and insisted that all the principals have a chance to reply. That kicked the hot potato into Holder's hands.
2. Supposing that the PA statute ran and that only DC (which has no discipline SoL as I understand it) could have power to discipline. What SoL would DC apply? What's the choice of law on that? Would DC apply substantive ethics law of PA (yes, I think, but am no 100% certain), and would DC apply PA's SoL?
John Steele
Also, I believe there were earlier complaints about Yoo to the PA Bar (I don't have dates). I wonder if the Bar would apply a relation back rule.
I can think of some rules where knowledge of the client wouldn't necessarily effect concealability--Candor Towards the Tribunal, for instance. The various rules dealing with communications with third parties, etc.
In Pennsylvania, Rule 1.13 (Organization as a Client) applies to the Government.
The portion that is arguably applicable seems to be (b):
Here as well, it seems that concealment from third parties, rather than the client might be enough.
(Though this would presuppose Yoo knew the conduct was illegal, and presumably tailored his advice to suggest legality, or a similar finding--which seems pretty unlikely to be able to be proven).
Pa. Rules of Professional Conduct
I agree that's a plausible interpretation of the rule -- its similar to the counterargument that I mentioned above -- but I don't see that limitation in the plain language and I wouldn't agree that its the only plausible interpretation.
I think a better interpretation would at least include knowing concealment from any injured parties. That way the concealment exclusion serves a similar function as the discovery rule. Any other interpretation strikes me as too susceptible to allowing attorneys to prevent disciplinary action by engaging in chicanery with their clients.
This is all supposition on my part though. I would hope that the Disciplinary Board has already addressed this question in some opinion that I haven't located.
Given I'm licensed in PA, that's sure good to know...
I would think that depends on the purpose behind the exception. If the purpose is to punish attorneys who conceal misconduct more strictly because such attorneys are seen as more culpable, then I would agree with you. I suppose the fact that concealment is grouped with "theft," "misappropriation" and "conviction of a crime" -- all things that suggest a higher level of culpability -- supports that interpretation. I'd also agree with you if the exception is seen as akin to the dirty hands exception to laches.
I am more inclined, however, to read the exception as serving a purpose similar to the discovery rule. If that's correct, then the touchstone ought to be whether the Office of Disciplinary Counsel was prevented from timely pursuing a complaint. In which case, I would think that it would be irrelevant whether or not the misconduct was properly concealed.
A complaint was filed already against him in Pennsylvania and it was dismissed by the State Bar in deference to the OPR report. With the OPR report out, that complainant could amend his complaint to add that information - so no time bar that way.
Second, the tolling of the statute of limitations is more complicated than McCarthy tries to make it look.
Third, even if McCarthy is right on the state bar statute of limitations, well we just prosecute Yoo. Then after he was convicted, he could be disciplined/disbarred (see Clinton).
Yoo is still very much in the woods. And that is only speaking domestically. As you may not know, the Spanish judge who has Yoo in his case has asked the United States to advise whether the United States intends to prosecute Yoo and the other five lawyers to help the Spaniards determine whether they need to go forward now. It is a classic rule of international law of seeking to exhaust all remedies in one state, before another state takes action. One exception is that it would be meaningless to do the process in the first state for whatever reasons.
So we are at another key point and Yoo is far closer to be indicted then he has been in the past five years.
If we insist, they will be prosecuted.
Best,
Ben
Is it even legally possible for the government to be a conspirator?
Rules? RULES? We don' need no steenking rules.
We are Darleks. The Doctor must be ter-min-at-ed...
I certainly was not aware of it five years ago, but maybe I just had my head in the sand. Was the OPR probe's existence reported contemporaneously? Was it formally started during Jack Goldsmith's tenure at OLC, when he withdrew all those Yoo/Bybee opinions?
I don't think that OPR publicly confirmed the investigation until last year though, which would explain why you and I weren't aware of it. From the same Newsweek article (which was published on February 14, 2009):
What ever happened to it, one way or another? I don't recall reading about any closure.
No.
Wrong. All that court did was notice that the statute embodies the concept of "specific intent." There's nothing remarkable or controversial about that. McCarthy wants you to think that the court specifically endorsed Yoo's peculiar interpretation of "specific intent," even the court did not do so.
But is the commentariat here representative of the country as a whole? So far, the Obama Justice Department's actions seem to indicate they are not.
And of course your side has no spin on this or any other issue...riiiggggghhhhtttt. I have a bridge up in Alaska that doesn't go anywhere in particular I'm looking to sell if you're interested.
I call BS. You give yourself away by your own words. How do you know whose side an opponent is on; perhaps like you claim about yourself, they just think your argument is wrong. But by the accusatory words "your side" you're admitting your own partisanship. Tell me I'm wrong and how you're really a conservative Republican who just believes in the rule of law.
The pathological hatred of everything to do with Bush runs through so many of these comments on the "torture" threads, but I suppose it's tough to smell it after wallowing in it for 8 years.
I'll believe you when you start pushing for the "investigation" and "truth commission" looking into the fund-raising improprieties of the Obama campaign, and other legal pecadillos of the left. Funny I see a whole different "lack of spin" coming from your side on posts about those.
BTW, I'm taking notes so that when the inevitable accusations of "illegalities" of the Obama folks start hitting, I can ask you all about where the outrage has gone. I don't even like Bush, and didn't vote for him either time. But I do like fair play, and all this screaming about "torture" is so obviously partisan it makes me want to hurl.
Also do not forget that the Pa. disciplinary code allows discipline, if you are disbarred by another jurisdiction. Unless it there was no due process or it offends Pa public policy, Rule 216 states:
So a DC or federal ruling could conceivably result in Pa discipline. Unless the limitations sections is a strong public policy, which it arguably is not, Yoo can get nailed in Pa if the DC bar or a federal court acts.
Second, why is everyone talking only about disbarment? There are a whole range of sanctions that could be imposed. There could be public censure, temporary suspension, or even mere private reprimand.
As for the statute of limitations, I do not believe the "client" was Bush, Cheney or other individuals to whom the advice was communicated. The "client" was the United States. If the time runs against the client, as the arguments against the "concealment" tolling the limitations suggests, then query whether the doctrine of "nullum tempus occurit regi" applies. Literally this means that "time does not run against the King" and is usually short-handed as "nullum tempus."
Also, a "complaint" seems to be only one method that would initiate an investigation under Pa law. The rules state that no complaint is necessary to initiate an investigation. If the investigation is sua sponte, would the limitations apply?
Finally, there seem to be quite a few plausible bases for discipline. There is the catch-all of an act involving dishonesty or an act prejudicial to the administration of justice. See Pa. Rule 8.4 c and d. This could come into play if, as is being reported, matters were removed from the opinions that made them less one-sided. I.e., if legal considerations were consciously concealed in the opinion. Of if it could really be shown that they did not believe the opinion to be valid, this would seem to apply.
More specifically, there is arguably a case to made that PA rule 1.2 was violated:
If the writing of the memos was not in "good faith" from a legal standpoint (just because they had a good faith belief that the policy was correct does not mean they had a "good faith" belief in the legal position) they were arguably "assisting" in conduct "the lawyer knows is criminal." I.e., they were providing legal cover for an illegal practice. If I was researching this issue, I think I would look for cases of tax fraud where some sort of bogus legal opinion was used. Were the attorneys criminally or civilly liable, and were they subject to discipline? Are there any standards for this? Obviously just because I strongly believe an expense should be tax deductible from a policy standpoint does not mean my incorrect advice that it is cannot be disciplined or subject me to criminal sanctions.
Also an arguable "lesser" violation might be of 2.1: Advisor
[strikethrough original]. The issue here is whether the advice was tailored rather than candid. True, it was what the bosses wanted, but again the client was the government, not the individuals.
This one is a little tenuous, but perhaps marginally plausible:
For my part, I would see nothing wrong with these memos if they had been written as briefs instead of opinions making a positive statement of the law. There is not much defensible in them to the extent they purport to be objective analyses. Without either a survey of prior prosecutions and suitable distinctions, and without placing the word "arguably" before most of the propositions, the memos flunk any test for objective advice. Still, I would hesitate to state positively that there is either a clear basis or no basis for discipline. It is all about the facts, which supposedly the OPR is going to provide.
And now after looking at Pa Rules, I find the "choice of law" rule which suggests that says Pa will look at the law of the place the alleged misconduct occurred. Pa Rule 8.5. So is the statute of limitations substantive or procedural in disciplinary cases? The general rule is that it is procedural, but it does not necessarily need to be interpreted that way by Pa. I have not looked at any law on this.
I do not purport to know all the answers to these questions, but there seems to be a lot more involved here than folks are talking about. Analyzing the whole issue would take a lot of work--it seems to have taken OPR five years--so all this is speculation. I wish I had a client who would pay me to look into this and write an objective opinion.
Good point. And pay attention to just how cunning they were. Could they have released information embarrassing to the GOP prior to the 2004 election? Probably so. Likewise for 2006 and 2008. Instead, they cleverly dragged their feet for years. Because when people have information that can embarrass their political enemies, that's what they typically do: sit on it as long as possible. And definitely not release it prior to important elections.
This strategy is so cunning I don't think I can make sense of it. But hopefully Greenburg and McCarthy will put their heads together again and explain the mysterious logic behind it all.
(1) If the US paid you to <i>defend</i> Yoo/Bybee, would you do it?
(2) How about if the ACLU paid you to defend?
(3) Do you believe any bona-fide liberal (under any definition you select) would or could defend Yoo/Bybee?
(4) If you were given a bar exam question requiring you to state the best defense you can think of for Yoo/Bybee, how would you answer?
FYI, I am now pretty sure after reading arguments pro an con that I could either prosecute or defend, but I didn't think I could prosecute last night.
Only if no one else was willing to take the job. Like every defendant, they deserve a proper defense, but it's a job I would try to avoid.
I see no reason to answer this question differently than the first question.
Like I said, every defendant deserves a proper defense. The fact that I would avoid the job is strictly a personal preference. But I can easily imagine some other "liberal" having a different view, and I see no dishonor in that.
'It seemed like a good idea at the time. I thought it was my patriotic duty to give my president exactly what I knew he wanted. It was a mistake. I'm sorry. I won't do it again. I'm ready to pay for the crime I committed, and I hope others will learn from the error of my ways.'
I realize that approach doesn't get him out from under the statute. But it's an honorable approach, and it's likely to win the sympathy of the court. Which means penalties will be minimal.
You sure have exhibited persistence on this subject on this site. I have generally found that applying such persistence to recognizing and articulating the other side's best case (even when it/they might not) pays big dividends in motions practice and at trial.
We can only speculate what the defense would be, because we don't have access to key evidence needed to prosecute. That's why the need for a proper investigation to ferret out what messages were exchanged, between whom, what pressure was applied, who winked and who nodded, etc. Without a smoking gun to refute, the defense would be easy: "My client believed and still believes every word in the memos." If Yoo, Bybee, et al, covered their tracks, or if, implausible though it seems, they actually did believe everything in the memos, i.e., their arguments weren't the product of working backward from a desired result, it would be easier to defend than to prosecute. But just because a defense is easy doesn't mean it's right.
Suppose memos turn up where the Office of Maoist Legal Counsel approve the treatment of the American pilot, since none of the techniques caused severe pain approaching that of organ failure or death. The same casual so-what as we have hear? I doubt it.
I will be writing to the Times insisting that they apologize to the People's Republic of China. Who will be joining me? (Yes, geo, I am particularly thinking of you.)
Those Chinese torturers just made the mistake of being non-Republicans. Future torturers around the world simply need to contract their torture needs to Republican contract torturers (I'm sure Blackwater is available, even though they've changed their name). Because when Republican torturers torture, the Yoo principle applies, which means that the torture is non-torture (I can picture the slogan: 'Millions tortured, and not a single organ failure yet'). Note that this is also an example of the free enterprise system spreading around the world. And also note the positive effect on our trade deficit. So I hope you will not stand in the way of progress.
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