Coming after John Yoo
LS reminded me of an important point.
As soon as (or even before) Mukasey came in as AG, the OPR investigation into the legal opinions that justified the warrantless wiretapping was reopened. When it was reopened, Marty Lederman was skeptical that OPR would get very far:
According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")
[snip]
Thus, since John Yoo apparently was doing exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing.
But after an interesting discussion, he makes one caveat:
P.S. I should add that OPR might uncover information that demonstrates distinct ethical or other legal lapses — such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving; or evidence that OLC intentionally declined to seek the legal views of others within the Department because it knew that such views would undermine the office’s desired conclusions; or evidence that DOJ and others provided fraudulent misrepresentations to telecoomunications providers in order to induce their cooperation; or, of course, evidence that DOJ lawyers dissembled to the FISA Court. It would be entirely appropriate for OPR to investigate, report and condemn such conduct. I just don’t quite see the value in OPM evaluating the bona fides or "competence" of OLC’s legal advice.
What if, I wonder, OLC had entirely rewritten the Constitution? What if it was more than just saying (as Marty describes), "that the President has an article II authority to disregard FISA" and instead saying, "the President has an article II authority to interpret article II authority as he sees fit"? Or, as Sheldon Whitehouse described it:
- "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."
- "I get to determine what my own powers are."
- "The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is."
Is that something that qualifies as a distinct legal lapse?
These legal opinions are–as we speak–under review. I have no clue if the sheer audacity of these opinions counts as something within OPR’s mandate. But they may well rise to that level.
I had just written this 2 posts down (well past EPU’d):
Hi Marcy!
I keep going back and re-reading Scott Horton’s piece on Balkinization about lawyers being war criminals. I think we need to resurrect this and talk about it. A lot.
The lawyers here not only did the wrong thing, they then allowed it all to be covered up. I want to see John Yoo frog marched.
As an attorney, I would love to see some of these devious crooks get disbarred.
I have been saying this about the Bush gang. Disbar them all. AGAG there should be no problem filing the complaint with the Texas State Bar. If Yoo wrote these opinions then he too should face disbarment. Telling aclient in writing to disregard the law of the land and make it up as you go is “moral turpitude”. Can anyone imagine an attorney telling his client in writing to go rob a bank.
I had a conversation with Alan Brinkley a few weeks ago about the hazards of academic hiring. You want some political balance and even some controversy, but you never really know when you’re hiring John Yoo.
The further this all goes, with all these Rice, Harvard, Yale, Stanford
geneii turning up so far gone into aconstitutional thought as opinion,
the more glad I am to have gone to a small teachers college in the woods
where it was just about education rather than stardom. The Revolt The
Elites was a prescient last work by Chris Lasch, and nailed this thing
over the horizon.
I beg to differ. Academic hiring can indeed be hazardous, but any dean who hires John Yoo damn well knows what she or he is getting — or else they have no business being dean.
Sounds like weak tea to me. How could a John Yoo not stick out like a sore thumb?
If you look at the form of Yoo’s associations, it’s a textbook case of a meteoric rise: Yale, a beginning professorship at Berkeley, clerking for a DC circuit judge, then a Supreme Court Justice, getting the full professorship, then another stint at the DOJ in a prestigious office. It’s all there.
If you look at the content, there are a bunch of red flags even before he got tenure at Berkeley, notably the clerkships with super-conservative judges Silberman and Thomas. Yoo’s views did not spring fully formed one day at the OLC. I assume he got the position at the OLC precisely because his view were well known. If Bushies knew where Yoo was coming from, why didn’t Berkeley and the Boalt Law School.
Yes. Your last Q was the give-away. I asked the way I did because I have a nose for bad eggs. Doesn’t always work, of course. But frequently enough.woudl like to believe I could have figured him out. It’s not just in the background you cite, but in the Qs you ask in the interview.
As a non-lawyer, I would think that telling your client that he is above the law qualifies as failing to meet your ethical obligation of providing competent legal advice. I could be wrong. Let’s ask Sheldon Whitehouse. He’s a good lawyer and familiar with the facts at hand.
“An imposing former prosecutor and self-described conservative who
stands 6-foot-8, [Deputy Attorney General James B. Comey] was the
rare administration official who was willing to confront [Cheney’s
Chief of Staff and Legal Counsel David] Addington. At one testy 2004
White House meeting, when Mr. Comey stated that “no lawyer” would
endorse [John] Yoo?s justification for the N.S.A. program, Mr.
Addington demurred, saying he was a lawyer and found it convincing.
Mr. Comey shot back: “No good lawyer,” according to someone present.”
http://www.eff.org/deeplinks/2…..tification
Comey was being polite. When he said, “no good lawyer,” he really meant “no one who has gotten at least a C in High School civics.”
LOL
“such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving;”
Yoo and other lawyers involved may have written “memos to file” about this…that’s what my old boss did regarding something really shady that was happening when a former WH regime asked him to do something…distasteful but that supported their “situation”.
He, Addington, and Fielding should be all be subpoened and asked to produce any notes in their possession, rather than necessarily correspondence.
Yoo and his brother are both long gone Federalist Society types who
believe what they write, I doubt there are any memos to file from them.
This is a deep movement with sitting Supremes as members ready to help
their fellow lodge members.
I agree with you, but there’s just one problem. Bush administration flacks have been flaunting subpoenas for months and this Congress lacks the ___(fill in the blanks)/or means to enforce the subpoenas. “Contempt” of the 110th Congress means nothing to the Bushies. So subpoenas from Congress mean nothing to them.
“That all you got, George?”
~ Muhammad Ali
Spoken to Foreman in a Clinch, late in the Rumble in the Jungle in Zaire on 30 October 1974
Now, wait just a doggone minute here.
If I understand the twisted thinking here, as long as an attorney produces an opinion the client likes, he/she is in the clear. Is that right? What a handy trick!
I thought attorneys had to promise to uphold the LAW, and that the LAW derives its power from the Constitution.
Therefore, if there’s an opinion written for a power-mad client which says, “hey pal, you have the right to ignore any Constitutional restrictions, so go right ahead, the sky’s the limit” then by definition the attorney has violated the most basic precept of his/her profession.
Right???
MrsK8
Read through the whole Lederman post before you go crazy. I’m not sure I took a fair sample to explain his point.
All lawyers are sworn to uphold the laws and constitution of the United states.
There’s plenty of gray area in interpreting almost any law . . . but in my opinion, some of the positions these men staked out are completely indefensible. But that’s my opinion. A judge might give plenty of leeway. But if there is evidence they knew they were full of it . . . oh my, as Atrios would say. Time for disbarment and prison.
And in the case of withholding evidence from courts and tribunals, e.g. the interrogation tapes . . . more violations of the attorneys’ duty. More disbarments. Potential prison.
Peterr
The point is that when Berkeley hired Yoo, all of this wasn’t clear.
Point well taken.
I was reading your comment in a forward looking, not backward looking, mode.
I periodically leave a message over at Doonesbury asking Garry Trudeau when Joanie Caucus Redfern is going to lead the protest at Boalt (her alma mater) over Yoo’s hiring.
For some reason, I never hear anything back.
abc evening news leading with the CIA tapes…
No no. I was using him as an example of the biggest nightmare you could have when trying to hire honest conservatives to a lifetime appointment. I think Columbia is doing just that right now–actually looking at former Bushies. It’s a pretty risky endeavor when someone’s most important work will be secret for 7 years.
“trying to hire honest conservatives”?
Almost spilled my Friday afternoon scotch with that! Putting “Yoo” and “honest” in the same thought without a “not” in there somewhere requires a spew warning.
I am glad olc’s bounds are receiving scrutiny in what are both legal and political processes. It is peculiar to hear Whitehouse’s tale of having permission to read secret directives in a secure room, and taking notes. If these areas of executive function can improve from yet more daylight, some of the best minds from former olc personnel might appreciate the checks and balances such a redefinition might produce. Marty Lederman did a quizzical article once about when is bad advice appropriate; and I observed he remained retired from the thread that examination produced. Doing it in a court is the final test process, but even the courts exist in a political milieu. maybe some of the materials Whitehouse was barred from including in his speech will appear after appropriate clearance, later.
Dont particularly want to go to the UC vetting process, especially now that he is tenured; but also the 9th court got Bybee. I wonder how much communications there were among experts doing both hires.
Prez would have given them a group version of the Medal of Freedom.
For doing a heckuva job.
whew – 300+ comments in the Whitehouse thread! We’re not in Kansas anymore~
Whenever some Bush inspired disaster occurs, my first reaction is no one could be that stupid. But as 7 years of the Bush Administration have shown they not only can be that stupid but they almost always are. So yes, I think that John Yoo could be that stupid. I would point out though that stupidity is not a criminal defense, especially when Constitutional and war crimes issues are involved.
Here also is a short bio of Yoo that I put together just now:
JD Yale Law School 1992
Law Clerk to Judge Laurence H. Silberman, U.S. Court of Appeals for the D.C. Circuit. 1992-93
Acting Professor of Law Boalt Hall School of Law, University of California at Berkeley 1993-99
Law Clerk to Justice Clarence Thomas U.S. Supreme Court 1994-95
General Counsel to the Committee on the Judiciary, U.S. Senate 1995-1996
Professor of Law of Boalt Hall School of Law, University of California at Berkeley 1999-present
Deputy Assistant Attorney General at Office of Legal Counsel, U.S. Department of Justice 2001-2003
His memberships include the American Enterprise Institute and the Federalist Society as well as the National Constitution Center (Bill Moyers is a member) and the Council of Foreign Relations
He wrote “The Powers Of War And Peace: The Constitution And Foreign Affairs After 9/11″ in 2005
and
War by Other Means: An Insider’s Account of the War on Terror in 2006.
Parenthetically, he is married to Elsa Arnett the daughter of reporter Peter Arnett (You know the one who reported live from Baghdad during the First Gulf War). She also is a professor at the Boalt School of Law.
ew: fyi andrew sullivan links to your sheldon whitehouse post in his post titled “it keeps getting worse”.
http://andrewsullivan.theatlan…..ettin.html
(i emailed him the link earlier. don’t know if the two are related)
Emptywheel, I’m going back here, but does anyone think that all of the video on torture has been destroyed? Wouldn’t it be likely or at least possible, that a Patriot kept copies?
Once stored on a computer, nothing ever disappears. We await the patriot.
OT: There are comments on FDL threads about the shredding truck outside Dick’s place. We should consider adding sightings thereof to the Big Timeline. For example, Wonkette has one on 10/19/2006:
http://wonkette.com/politics/d…..211028.php
I have to believe it would be pretty tough to smuggle a copy out . . . if not, our security must be pretty lax, no?
Still, it’s possible, and I hope that a copy has been preserved and that prosecutions will result.
I am not interested so much in prosecuting the torturers but those who gave the orders. Cheney, Rumsfeld, Bush, Addington, AGAG, etc.
OT: Kos has an alternate theory for why the video recording were destroyed:
http://www.dailykos.com/storyo…..707/419308
What a legal freak show!
We’ve got craven henchpeople – like Yoo, Bybee, Bradbury and Gonzo – in all their fawning, grovelling, human weakness, just slavering away to enable the inhuman Neocon Superiority Ideology, itself.
They all sold their souls to Addington, Cheney and Bush for trinkets and few minutes of fame, without even a second thought about hurting US.
Their only true defense is that they only wanted to Please Bush.
This week seems to put the many resignations the past few months into perspective… They all have a part to play even though they are now out of the WH and DoJ…
Keith is saying Harriet Myers told the White House not to destroy the video.
Mukasey has not ordered preservation of documents, etc.
here’s what is devastating though;
the fact that “opinions” like this can even be discussed as if they have legal standing, that at that very face of the “opinion” those making the opinion and relying on the opinon aren’t thrown into jail to await charges of treason
how brazen, how insoent, how audacious can a person and their advisors be before they are brought to account?
these people need to be jailed for the very thought of even proposing the theory that a president of the united states of America can make his own law, ignore his own law and be subject to no revue
OT: tpm Muckraker now has a thread up related Whitehouse’s speech today. I tried to post the link to here, but every once in a while that system decides you’re a new poster and holds the comment… maybe it was putting the link in… who knows.
So, if someone could go to tpm and just post a link from there to the post below where Whitehouse’s speech is extensively discussed, that would be great.
Here’s the link to the tpm thread: http://www.tpmmuckraker.com/ar…..p#comments
Thanks!
Whitehouse in the Whitehouse!!!
I have to say, I agree…
Honestly, I can’t think of anywhere else I would rather have Whitehouse be than in the Senate. Not to single you out, but why do people chronically dis the legislative branch? Everytime someone in Congress does the right thing, cheers ring out for them to go straight to the executive branch (pres, veep, a.g.). After 7 years of a rubber stamping Congress, I’m all in favor of a much more independent, courageous, and smart Congress. Whitehouse for SENATE! Woo Hoo! ; )
phred,
I think there is an underlying concern that none of the candidates really measure up to the kind of leader we need. Many independents tend to comment on that point. Whitehouse just seems a breath of fresh air –willing to put himself on the line for the sake of the Constitution’s protection. He appears to be someone who really could uphold the Presidential oath of office.
But your point is well taken… A strong voice in the Senate can be just the ticket to Constitutional protection.
Exactly, that’s my point, the Constitutional crisis we face is a direct result of the failure of Congress to uphold their oaths of office. The founders anticipated an abusive executive, they did not anticipate an abject Congress disinterested in maintaining their own power. Admittedly what BushCo has done is beyond the pale, but it is entirely due to Congress’ failings (both Rethugs and Dems) that we are where we are today. At the moment, I am much more interested in a functioning independent Congress (which we clearly do not have) than another name in the ring for President. With an effective Congress we can muddle through with a mediocre President. With a supine Congress we will risk more of the same abuses of power.
Speaking of people to be punished . . . this guy appears to be on the hook for some trouble . . . I remember the speculation around his unexpected retirement . . . now we know why (from the Lede at NYT – emphasis added):
From his Wikipedia entry:
I guess he knew this was going to be published soon, too.
What Sheldon Whitehouse has uncovered is that, effectively, the POTUS has long since suspended the Constitution of the United States. Who’s gonna stand up to the Masters, now?
nice job today, ew! excellent work…
Here’s something interesting: John Yoo has a webpage at Boalt Hall. With an e-mail address. Handle with care.
Hope their coming after John Yoo and David Addington?
Hey Emptywheel,
If you get a chance, check out the latests posts over at Balkinization where both Marty Lederman and Jack Balkin let the air out of our balloons regarding Senator Whitehouse’s “find” in those OLC opinions.
Sure deflated me! *g*
EW–How much did you love him the afternoon he voted for the Intell Bill with Amnesty ala the agreement with Cheney, Addington, and Fielding courtesy of Jello Jay and Feinstein.
Only Senators Russ Feingold (D-WI) and Ron Wyden (D-OR) voted against the bill.
Whitehouse votes for Telco Immunity version of the Senate Select Intell Markup on 11/15/07