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Terror-War Fallout Lingers Over Bush Lawyers
WASHINGTON - When John C. Yoo, a former Justice Department lawyer, was selected by President George W. Bush in May 2004 to join a government board charged with releasing historical Nazi and Japanese war crimes records, trouble quickly followed.
The Abu Ghraib torture scandal was exploding, and fellow panelists learned that Mr. Yoo had written secret legal opinions saying presidents have sweeping wartime power to circumvent the Geneva Conventions. They protested that it was absurd to name Mr. Yoo, who they believed might have sanctioned war crimes, to a war crimes commission.
White House officials canceled the appointment, though it had already been announced in a news release, and kept the episode quiet. "We saved them from incredible embarrassment," said Thomas H. Baer, one of the dissenting panelists.
But for Mr. Yoo, a Berkeley law professor, the swift exit from the war crimes board was only the beginning of his troubles. For more than four years, the Justice Department ethics office has been investigating his work and that of a few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo for abuses he says he endured. Law students have led protests, and the Berkeley City Council even passed a resolution in December calling for Mr. Yoo's prosecution for war crimes.
The Obama administration last week began releasing more secret memorandums written by Mr. Yoo and others that made such wide-ranging claims about presidential power that Senator Arlen Specter, Republican of Pennsylvania, called them "shocking."
The notoriety that follows Mr. Yoo - and to varying degrees half a dozen other Bush administration lawyers - raises difficult questions: What is a government lawyer's responsibility if legal advice he gives turns out to be, in the view of many authorities, grievously flawed? Can he be blamed for damaging, and arguably illegal, acts carried out with his imprimatur? Should he suffer any punishment?
"I think the legal profession in the United States has been seriously hurt by their conduct," said Stephen Gillers, a professor of legal ethics at New York University. He called the disputed legal opinions "sloppy, one-sided and incompetent" and added, "There has to be accountability."
What, if anything, should happen to these lawyers - damage to their professional reputations, punishment by state bar associations, perhaps even prosecution at home or abroad - is now the subject of a lively debate in the legal world and beyond.
The calls to begin a criminal investigation of Bush legal team members have so far been ignored by the new attorney general, Eric H. Holder Jr. But the demands reflect a widely shared view that the Bush administration lawyers played an outsize role in the disputed counterterrorism policies.
Mr. Yoo and other top lawyers met as a "war council" to consider how far Mr. Bush could go. In addition to asserting that he could bypass the Geneva Conventions - war crimes treaties protecting detainees - the lawyers said the president's wartime powers trumped many other legal limits. Their secret memorandums cleared the way for aggressive policies - like waterboarding and other harsh interrogation techniques - all but ensuring that neither policy makers nor operatives could face criminal prosecution for actions blessed as legal.
But John C. Eastman, the dean of the Chapman University law school and a friend of Mr. Yoo who invited him to teach there this semester, argued that it was deeply unfair to single out the Bush lawyers for the advice they gave under intense pressure after the 2001 terrorist attacks. "It's unfortunate, and quite frankly it's dangerous," because it could make officials risk averse, Mr. Eastman said, blaming partisan politics.
Mr. Yoo declined to comment. But in a March 7 opinion column in The Wall Street Journal, he defended his recently disclosed work and warned that the Obama administration risked harming national security if it punished lawyers like himself.
"If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future," Mr. Yoo wrote.
Mr. Yoo's harshest critics - including lawyers for Jose Padilla, the convicted Qaeda operative who is suing Mr. Yoo for $1 and a judicial declaration that he authorized illegal detention and interrogation practices - note that Nazi lawyers and judges were tried for war crimes at Nuremberg. Others point to mob lawyers charged in organized crime conspiracies.
But scholars say there is little precedent for punishing government lawyers who blessed conduct that most mainstream legal scholars contend was, in fact, illegal. The Nuremberg cases involved a different scenario: The lawyers were carrying out Nazi-era laws against a backdrop of mass murder. And while corporate lawyers may face malpractice lawsuits by clients for bad advice, in practice it has been "incredibly rare" for lawyers to be punished, said Daniel C. Richman, a Columbia University law professor.
For some of Mr. Bush's lawyers, the most likely consequence may be wariness from potential employers. The former White House counsel and attorney general, Alberto R. Gonzales, for example, has not found a job since resigning in 2007 amid accusations that he misled Congress about surveillance without warrants and the firing of United States attorneys.
He recently told The Wall Street Journal that the controversy surrounding him had made law firms "skittish" about hiring him, calling himself "one of the many casualties of the war on terror." Mr. Gonzales's lawyer, George J. Terwilliger III, said in a statement that "Judge Gonzales looks forward to the day when reason prevails over partisan politics and he can get on with his professional life."
David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work. The former Pentagon general counsel William Haynes II had been nominated by Mr. Bush for an appeals court judgeship, but was blocked because of his role in detention policies.
He then searched for a job for about a year, according to Pentagon officials, before landing a position at Chevron in 2008.
Other key figures who left the administration before the details of their work came to light - a process that began with the disclosure of interrogation memorandums after the 2004 Abu Ghraib torture scandal - were luckier. Jay S. Bybee, Mr. Yoo's former boss at the Justice Department's Office of Legal Counsel, had been confirmed to a life-tenured appeals court seat in 2003. That same year, Mr. Yoo had returned to his tenured professorship at Berkeley, and Timothy E. Flanigan, the former deputy White House counsel, took a private-sector legal job. (The other former Bush administration lawyers all declined to comment or could not be reached.)
Even if they escape punishment at home, however, the lawyers could find themselves pursued in European countries that have laws allowing them to prosecute torture no matter where it occurred.
"I think people like Yoo will be taking their chances if they want to go to Europe for a very long time," said Michael Ratner, president of the Center for Constitutional Rights, which has asked a German prosecutor to indict several Bush legal team members along with policy makers. The prosecutor declined, but the case is on appeal.
Mr. Ratner and others are eagerly awaiting the findings of the ethics investigation into the interrogation memorandums drafted by Mr. Yoo and Mr. Bybee in 2002, as well as others written in 2005 by Steven G. Bradbury. Critical findings could include referrals to state bar associations, which have the power to reprimand or disbar their members. Any bar action against Mr. Yoo could in turn reignite a faculty effort to get Berkeley to strip him of tenure so he could be fired.
But Mr. Richman, of Columbia, said any punishment against Bush lawyers is unlikely unless e-mail messages or early drafts turn up proving that they blatantly altered their legal conclusions to fit a policy agenda. Mr. Richman said that would be unlikely for Mr. Yoo, who had pushed an aggressive theory of presidential power long before the administration recruited him.
"The selection of Yoo was putting in place someone where you sort of had an idea what he would say," Mr. Richman said. "Most academics are in the center of most things, but there are some outliers. And he was an outlier."
John Schwartz contributed reporting from San Francisco.
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30 Comments so far
Show AllIf members of the Bush White House are not prosecuted for their offenses how will we ever prevent this scenario from occuring again? Republicans think they're "too god" to go to prison. That's where the real problem lies.
Exactly right. And as long as we allow them to think that we are inviting seven more demons more horrible than Bush to push their way into power.
greatbear215 says, "Republicans think they're 'too god' to go to prison."
If that was a typo, it was an inspired one.
"When John C. Yoo, a former Justice Department lawyer, was selected by President George W. Bush in May 2004 to join a government board charged with releasing historical Nazi and Japanese war crimes records, trouble quickly followed."
After covering the W Bush war crimes with a legal memo, I wonder how he covered the Bush family support for Hitler.?
What a bunch of baloney!
"But John C. Eastman, the dean of the Chapman University law school and a friend of Mr. Yoo who invited him to teach there this semester, argued that it was deeply unfair to single out the Bush lawyers for the advice they gave under intense pressure after the 2001 terrorist attacks. "It's unfortunate, and quite frankly it's dangerous," because it could make officials risk averse, Mr. Eastman said, blaming partisan politics.
Mr. Yoo declined to comment. But in a March 7 opinion column in The Wall Street Journal, he defended his recently disclosed work and warned that the Obama administration risked harming national security if it punished lawyers like himself."
Mr. Yoo and his friend are simply trying to free him of responsibility. Everyone was experiencing intense pressure after 9/11. Thousands upon thousands of people, despite intense pressure with the color code warnings, and heavy police presence and the possibility of getting beat up or arrested (which many did) still packed their kids into the subway trains to demonstrate against the impending war, Mr. Yoo, because they knew it was wrong to succumb to such pressure. You always had the option of resigning and ending that terrible pressure you were under; why did you not?
Yes, we should hold Cheney and Bush responsible, but we also need to disbar lawyers who are so incompetent that they buckle under pressure to break the law. Jail time? How about a public apology, rather than a warning. Warnings should have been given to your boss in the White House, not to the American People, whom you have harmed.
I want to add that those institutions of higher learning who are employing Mr. Yoo are tarnishing their reputations. Better thinking individuals will steer clear of these marred institutions.
For those interested in further info, see Jane Mayer's The Dark Side.
Padilla was sentence for a thought crime in the most bizarre Orwellian tradition.
Stephen Gillers, a professor of legal ethics at New York University . . . called the disputed legal opinions "sloppy, one-sided and incompetent" . . .
They're also downright evil. The "work" of Yoo, Bybee, Bradbury and others proves once again that the law is whatever lawyers tell you it is. A clever, glib and thoroughly perverted individual like Yoo can make 2 and 2 equal 5 and turn night into day. If no one is around to insist that language indeed has meaning and pushes back against these swine to defend that notion, it's all over. And to the powers that be at UC Berkeley who hired Yoo, you can all go drink sea water!
Thank you Mordechai for giving it its PROPER, PRECISE definition:
EVIL.
get straight to the heart of it .
it's not about "sloppy lawyering" or "incompetence" --
it is abotu EVIL.
the psychologist who interviewed the Nazi War criminals during the Nuremberg Trials -- came out of the experience saying this:
"i expected something else...but out of it all -- the most frightening to me -- was how these men were SO ORDINARY, so BANAL and petty ...how these men were actually anyone among us...a lawyer, a doctor, a teacher, ... and how they described their deeds with coldness as if they were just counting numbers....and i have come to realize : the ESSENCE of EVIL among people is the complete lack of conscience...and HOW BANAL it is"....
this perfectly describes YOO.
the USA has often succeeded in painting "frightening" images -- such as "bearded, turbaned, barbarians, with WILD RED EYES" as "evil" ....
when in fact -- lurking and walking inPLAIN DAYLIGHT and HIGH RESPECTABILITY
are the EVIL MEN of the U S A itself.....so BANAL..and so ordinary.
such as JOHN YOO, Addington, Wolfowitze, Perle, the writers like Bill KRISTOL with his quavering little pipsqueak voice,
these are the men who had said:
"BOYS go to Baghdad -- the REAL MEN go to TEHRAN....and the WAY to TEHRAN is through Baghdad".
Sorry, but this discussion is ridiculous. As satisfying as it would be to see Yoo disbarred and removed from any academic posts, he just gave a flawed legal opinion. Bush, an ignoramus who neither understands nor cares about the U.S. Constitution, wasn't forced to accept Yoo's advice or commit the crimes he committed. Moreover, even if Bush didn't fairly win either election, half of the American voters voted to put him in the White House.
In a perverse way, to prosecute Yoo would be similar to prosecuting those lowly enlisted men and women for the Abu Ghraib atrocities without bringing charges against their superiors who were really responsible.
Whatever happened to "The buck stops here."?
piltdownman you have the right idea except the responsibility goes even above Bush to the high priests of the cult of Mammon on whose leash he frolicked.
For those who find my allusion to obscure, I am talking about the war profiteers who for the sake of wealth concentration into their grubby little fists will gladly sacrifice the lives of others. Oil, defense(?!) contractors, and multinational corporations of al;l sorts who view the US military and treasury as their own private muscle and slush fund respectively.
Poet
Yoo provided "legal" cover for the Bush crimes. They wanted to torture and asked for cover. If there were no lawyers like Yoo to provide the cover, then maybe they wouldn't have done it.
Republicans have NEVER said that the buck stops with them. It stops at their opponent's door. They NEVER take blame for anything, just credit whether it's theirs to take or not.
It was Truman, a Democrat, who said the buck stopped with him. No president before or since has had the balls to say that.
"The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers."
Just the conservative ones.
I'm glad you qualified that. I truly enjoy kivals opinions.
It depends what you mean by liberal and conservative.
I recall the ACLU had lawyers defending the Santa Ria religion's "right" to sacrifice animals. And another that allowed a blind man to hunt. That's pretty conservative.
When questioned the ACLU would say, if you dont like it, change the Constitution.
So "liberal" lawyers can be a bane on fairness and justice as well.
Its all how you look at it and the times we live in.
I bet there were liberal lawyers in the 19th century who defended human slavery.
the longer americans, no matter who they are -- including the "antiwar, antitorture" types - spend time SPLITTING HAIR onwhether John Yoo etc were just "incompetent" or merely "debased" or merely deploying "bad judgment" or "bad lawyering" --
the MORE the world sees the USA as FOOTDRAGGING and HYPOCRITICAL in matters of EVIL, WAR CRIMES, TORTURE, SPYING, KIDNAPPING, MURDER, EXPLOITATION, LYING...etc...
such SIMPLE notions are also the TRUTH -- and NO AMOUNT of ORWELLIAN dillydallying is going to save the "american face"....
and it only means ADDED collapse of respect and even TOLERANCE for american actions.
in the end -- what matters in the world about america is NOT what americans THINK -- it is what the WORLD thinks of america.
funny -- the USA exhorts all countries to "join in the war on terror" or under obama -- a NONchange "joining in the war against threats to peace".......the OLD preaching of the USA .....
in order to effect ITS TERRORIZING of nations . ...predictably through means of isolation, sanctions, economic blackmail, etc.....
the modus operandum of the USA is to "gather" supporters against a nation it doesn't like which doesn't BOW to US dictates -- and "isolate" it -- it is like that of a bully's actions leading its "pack" to take on weaker countries
"piecemeal" , then show them as a demonstration and warnjing to other nations not to "interfere" UNLESS the USA permits it..or THEY could be next....
that's really how the USA behaved -- whether it's against CHINA, for generations, or vietnam, or russia, or venezuela, or other south american countries, or syria, or iran, or iraq, or serbia......
it's probably coming to the time when countries will begin to find ways to "COOPERATE" AGAINST america by coming together...and utilize the "strength in numbers principles"...
IMO -- they , the weaker ones are only looking for a firmer "leadership" elsewhere ..and in some ways that is already happening.
IRAN in the middle east, CHINA in the Far East.
Russia in the caucasus..
venezuela, argentina brazil in the south americas.....
they may all be affected by the economic debacle ROOTED in the USA -- but I think the time will come when all these will wash right back to the USA in ways americans will only blame no one but themselves for.
this is what happens to bullies.
I'm not sure Americans have the general maturity to actually blame themselves and look inward. At least not yet.
Or maybe I should say conservative Americans.
I think one of the huge appeals of the modern American conservative movement is the celebration of selfishness. It is why Ayn Rand and Milton Friedman became the Gods of the NeoCons. They advocate a pure view of 'self' from a conservative perspective.
Some investigative journalist should do a little digging into the connections between Yoo, Addington, Gonzales, Haynes, Bybee, Flanigan, et al. and the shadowy neo con bar association group known as the Federalist Society.
If you select your legal advisor from the ranks of say, the ACLU, you have a prettry good idea what kind of adversarial viewpoint you are likely to get when it comes to an issue involving the Bill of Rights. The same holds true for right wing ideological lawyer groups like the Federalist Society (an outfit whose intellectual luminaries include fair and balanced fellows like Robert Bork, Edwin Meece, and Kenneth Starr).
The real obstruction of justice under the Bush regime, at the very top of the federal executive branch of government, was facilitated and eventually achieved by cutting the senior professional legal staff of the Department of Justice, JAG, and the State Department entirely out of the policy formulation process, then classifying the final work product by stamping the legal opinions "Top Secret" (meaning, totally inaccessible except for only those in the federal agencies who would be tasked to carry out the illegal secret projects).
Such self-serving a charade is antithetical to the whole concept of what it means to respect "the rule of law." You can't really call it law at all, if you first hand pick your buddies to write it, and then don't let anybody else read it.
As for Mr. Yoo's recent Op-Ed column in the Wall Street Journal, he laments about the enormity of the burdens thrust upon "those officials who were charged with preparing for the unthinkable....." What is this man babbling about?
Nobody ever elected Bush, Cheney, Rumsfeld, Yoo, or anybody else to formulate public policy, or to run merrily and secretly amok, under the banner of thinking about the unthinkable - what Rummy in his heyday so infamously used to call "the known unknowns and the unknown unknowns." This is the sort of near hysterical claptrap that gave birth to the whole doctrine of preemptive/preventive war.
Given so stark a Hobson's choice, I'll certainly favor risk aversion over testosterone poisoning any day.
Bill from Saginaw
Good posting!!!! & good advice.
One of the Bush people's most ridiculous arguments is that 9/11 made extreme measures unavoidable. it's as though all these well-eucated, supposedly logical individuals lost their marbles and made up all kinds of grotesque laws and pro-torture memoranda because of the urgency of the moment. Many non-lawyers I know thought carefully after 9/11 and came to the conclusion that we needed a measured, thoughtful response, not bombing, not invasions, not torture, not shredding of our constitutional rights. Pity they weren't running the government instead of that bunch of quasi-fascist, "Christian" hysterics.
I know that the USA does not recognize law from any other jurisdiction but it's own. So given that a fair trial is not possible in the USA, perhaps the world Court that recently indicted the president from (Somolia?)(old age)could proceed to indictement and if needs be trial in absentia and post wanted Dead or Alive postered rewards just as the USA did in the case of "Osama bin Laden". There are hundreds if not thousands that could be included and it would establish the might of the "Arm of the LAW' whereever in the world the "GUT LESS WONDERS" hide. Could work and at least the real world (as opposed to the USA) would do a far better job of getting to the criminals. The USA has millions of armed and ready bounty hunters
and there are millions more around the world great for various economies and they are just waiting for the "CALL"!
the USA does not recognize international laws UNLESS they comport to american views of what is "lawful" -- which of course means just another way of giving advantage to the USA in ALL aspects of relationships to the rest of the world.
the irony is that the constitution of the united states -- IF the USA REALLY respects and honors what it proclaims as the "greatest document in history" -- specifically instructs that the USA -- is BOUND by ANY international treaties it signs -- and that those laws "SHALL TAKE PRECEDENCE OVER AMERICAN LAWS"....they not only "BECOME PART OF THE LAWS OF THE UNITED STATES" but SUPERSEDE the domestic laws of the United States wherever those international laws signed by the USA are related to the domestic laws: such as TORTURE, WAR CRIMES.
that means: the USA - having SIGNED the NUREMBERG TRIALS, WAR CRIMES ACT -- is BOUND by the definitions of those treaties
ABOVE ANY DOMESTIC LAWS of the United States regarding such things.
under BOTH the Constitution of the USA and International Laws it has signed -- the USA therefore IS a CRIMINAL organization.
a SCOFFLAW.
The advice was only cover, and the cover was evil. This is not something which is sanctionable by law in a court, by bar associations, or any other formal institution I know of. The only realistic sanction is the opinion of his peers, and the general shadow cast on his character. "This guy won;t bother with what the law says, he'll tell you what you want to hear, interspersed with legal dicta." McCarthy's lawyer had a profitable career for the rest of his life, and he is the icon of what everyone thinks is wrong with the law. Just remember, when the Drs. were putting leaches on Geo Washington's arse to cure him of pneumonia, lawyers were writing the Constitution. It sort of put things in perspective. Far too much of practicing law consists of car wrecks and providing cover. Its a shame.
.
These NeoFascist Lawyers are just as responsible for war crimes and atrocities, today; as the Nazi Lawyers and Judges of 70 years ago.
What is worse, is that the United States and its Western Allies, at the conclusion of WWII, set the standards for war crimes prosecutions.
Maybe not this year; but in the near future, after the Global Power reailignment; the United States will be held responsible for the war crimes committed by the George W. Bush & Company.
Mordechai, teddy, and bill of Saginaw make their points.
Words have consequences. And Yoo is a master craftsman of words. Words, after all, are the _lawyers'_ media.
When a lawyer gets asked for his opinion--in words--not only ideas and concepts but _empathy_ for other human beings have to come to the fore. That is called ethics; others call it "morality."
_Words_ that will impact on millions of lives have to be delicately framed and considered, never once must a lawyer relinquish his humanity. Yoo defaulted, badly.
Men do not exist in an abstract universe of "maps" (mere words). We, men, inhabit a territory of existence, of pure experience. Yoo mistook the map for the territory and that is his fundamental flaw. Yoo's inhumane, cold, detached "words" got a lot of people killed and permanently damaged.
As long as we men forget the prototype virtue, empathy, we are no better than savages...
Yoo, W, Cheney and their ilk must be prosecuted a-la-Nuremberg as a warning and example to the future and all future leaders. There are limits to reckless, irresponsible, and lethal human behaviors and to what _a humanity_ that calls itself decent and civilized will tolerate. One generation of concentration camps and Hiroshima/Nagasaki was enough. Never again!
From the article about Gonzales...
He recently told The Wall Street Journal that the controversy surrounding him had made law firms "skittish" about hiring him, calling himself "one of the many casualties of the war on terror." Mr. Gonzales's lawyer, George J. Terwilliger III, said in a statement that "Judge Gonzales looks forward to the day when reason prevails over partisan politics and he can get on with his professional life."
I find this pretty sick.
That somehow it is 'reason' to simply let the person who advocated torture and who thinks waterboarding is simply another interrogation tool practice law as if that were all 'ok'??
Seems to me that 'reason' is prevailing just fine.
Except that Gonzales isn't sitting behind a jail cell.