The Law: Who Was John Yoo's Client? The Torture Memos and Professional Misconduct

Abstract

From 2001 to 2003, law professor John served as deputy assistant attorney general the Office of Legal Counsel (OLC) the Justice Department of President George W. Bush. In that brief time, he wrote or helped write key memos pertaining to the president's authority fighting terrorism, which included assertions that the Geneva Conventions did not apply to al-Qaeda or Taliban fighters, that Americans' international communications could be subject to National Security Agency surveillance without warrant, and that domestic and international antitorture laws only applied to very small class of interrogation practices and adequate legal defenses existed cases which did, fact, occur. This last series of opinions--commonly referred to as the torture memos-created firestorm of opposition when public, and triggered four-year investigation by the Office of Professional Responsibility (OPR) the Justice Department. The OPR examined whether John and his boss, Jay Bybee, who had signed off on the 2002 memos, violated professional norms and standards. In their final report, OPR investigators found guilty of professional misconduct, basing their conclusion on evidence that Yoo knowingly provided incomplete advice to the and that he had failed his obligation to inform his client that his analysis was novel and untested (OPR 2009, 253, 252). Consistent with the department's practice, his case would then be referred to the disciplinary bodies of his bar associations Washington, D.C., and Pennsylvania. But the final decision rested with Associate Deputy Attorney General David Margolis, and he disagreed with the OPR. A high-ranking career attorney at Justice, Margolis criticized the standards used by the OPR, and he concluded that the Justice Department would not refer either or Bybee to their state bar associations (Margolis 2010, 67, 68-69). characterized the Margolis decision as a victory for the people fighting the on terror, including himself, who had written the legal opinions in good faith. This refrain was picked up by partisans, who called the Margolis report vindication. An editorial the Wall Street Journal, for example, said Margolis had found that and Bybee made legal errors but did so good faith ... the ethical service of their clients the executive branch at time of war (Frisby 2010). The editorial ignores Margolis's strong criticism of and Bybee, but it reflects the attitude of those who saw an exoneration of John Yoo. One result appears to be the continuing credibility accorded Yoo's theory of presidential power, despite the fact that it contradicts the vast body of scholarship on the presidency and constitutional law. (1) publishes monthly column called Closing Arguments the Philadelphia Inquirer and continues to be published on the editorial pages of the Wall Street Journal, Washington Post, and New York Times, as well as numerous law reviews. (2) For example, his views on executive power and the nomination of Elena Kagan to the U.S. Supreme Court were published by the New York Times two weeks after her nomination (Yoo 2010b). This study will argue that the OPR's higher standard was the correct one to apply Yoo's case, and that the Justice Department should have referred him to his bar associations to consider for disciplinary action. To advance this argument, the context and language of the 2002 and 2003 interrogation memoranda will be examined, followed by review of the findings of the OPR and David Margolis. The study will then argue that Margolis applied criteria appropriate to the private lawyer model, but that are not adequate when evaluating the actions of law officer the Department of Justice. The Torture Memos of John On August 1, 2002, an OLC memorandum drafted by John was signed and sent by Assistant Attorney General Jay Bybee to the White House counsel, Alberto Gonzales (OLC 2002a). …