Alex Constantine - March 10, 2009
By CHARLIE SAVAGE and SCOTT SHANE
March 8, 2009
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.”