Monday, February 22, 2010

Yoo and Bybee escape from justice isn't entirely complete

I've been reading various reactions to the overruling by the Department of Justice of the recommendation to refer pro-torture Professor John Yoo and Appellate Judge Jay Bybee to bar association disciplinary committees (the hundreds of pages of info can be found here, and the first two links at that cite are the most important).  Basically the argument is that the failure to provide objective and reasonable advice is insufficient grounds for sanctions.  DOJ concludes that the legal arguments for torture are nonsense, but Yoo actually believed it, and Bybee didn't bother to look at it very closely and some other folks told him it was okay.  Balkin explains that reasoning in all its glory.

Three points:

1.  I've only skimmed the DOJ memo, but what I've seen fails to focus on the duty to respond to arguments contrary to the attorney's conclusion.  This is the key issue in my opinion.  It doesn't matter whether Yoo thinks he's right - he failed to discuss precedent that limits the power of the president, even in wartime.  Even if he thinks that precedent isn't controlling, any lawyer worthy of practicing has to respond to the best contrary arguments.  As for Bybee, he's either in charge or he isn't.  A lawyer of all people has to know the consequences of signing something.

2.  As for the "you're all forgetting the atmosphere of 9-11" issue, you can forget that argument.  The memos were from August 2002, eleven months later.  There's enough time for people to think clearly again after a year, plenty of reasons by then to know that America hadn't been brought to its knees, and to know that we clearly weren't facing a threat as significant as we had several times before in conventional wars against great industrial powers.

3.  It's not over, entirely. Jonathan Zasloff points out that the Pennsylvania and Utah bar associations don't need a referral from DOJ - they can act independently, and they should given the information in front of them.  Similarly, UC Berkeley can independently use the information to determine whether someone acting this incompetently, crazily, or dishonestly meets the standard of a law professor.  I can't say I'm extremely hopeful of this happening, but the option exists.

UPDATE:  Kudos to Mike Potemra for fighting torture in the web pages of the National Review, of all places.  Posts like that help me believe that there's still hope.

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