At the very least, John Yoo needs to re-think what it means to be a lawyer.
That is the minimal conclusion one reaches after reading the final report of the Office of Professional Responsibility of the Department of Justice and the final review of that report by the DOJ’s Assistant Deputy Attorney General David Margolis.
Margolis rejected the OPR conclusion that Yoo had engaged in intentional misconduct, but no one who reads both the report and the Margolis review letter can come away with anything other than a queasy feeling in their gut that someone like Yoo was advising the CIA during the early stages of the post-9/11 period.
As Margolis indicates, Yoo came to the position with his own personal view of expansive presidential power. He then used his position as a top legal advisor to the Executive Branch to assert that viewpoint.
As Margolis conceded:
“While I have declined to adopt OPR’s findings of misconduct, I fear John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligations to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.”
Yoo was asked by the CIA for legal advice about the use of interrogation techniques. Specifically, whether or not these would be considered torture and thus subject CIA officers to legal liability. The CIA was so concerned about this potential liability that it actually asked for “advance pardons” in case of future prosecutions.
In other words, the CIA was looking for a “Get Out of Jail Free” card and they asked John Yoo to provide them one.
Although it should have been perfectly clear to Yoo that his view of presidential power was not sufficiently well accepted to assure the CIA that they would not be held liable at some point in the future he nonetheless advised them that they could engage in tactics like water boarding.
When a lawyer is asked for advice about the law he is really being asked, as Oliver Wendell Holmes suggested, to predict what it is that a judge (or jury) is likely to do if they are asked to assess what happened. A lawyer’s client deserves no less.
CIA officers involved in the “war on terror” have already faced liability for their actions in Italy. It may only be a matter of time before they face prosecution in the United States.
When the CIA called Yoo they needed a lawyer. An ideologue answered the phone and sadly misled them. As a result it is likely that hundreds of people were needlessly and illegally harmed.
One wonders if the UC Berkeley Law Dean, Chris Edley, who has hidden behind John Yoo for several years will have the courage to respond appropriately. While Yoo cannot have his tenure revoked, there is nonetheless a need for other action to be taken here if only to put students at Berkeley on notice about the actual content of Professor Yoo’s behavior and ideology.