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There's lots of talk these days about prosecuting Bush and Cheney for authorizing torture.  Questions are floating around like, should we do it?  can we do it?  will we do it?  And plenty of arguments pro and con.

But one thing is getting lost in this discussion.  As Bush made clear in one of his exit interviews, he went well out of his way to get legal counsel and legal backup for every bit of torture he authorized.

Now we all know that a so-called Nuremberg Defense doesn't cut it any more.  In the Nuremberg Defense, the one who commits war crimes knows they are illegal, but he maintains he was forced to commit them anyway.  But war crimes can't be excused any more on grounds that, "He made me do it."  

But Bush has a new defense.  His defense is, "The lawyers told me it was legal."  He maintains, "I asked them specifically, 'What can I do that is legal?', and this is what I was told."

Well, we all know who were the lawyers that Bush consulted:  John Yoo, David Addington, Alberto Gonzalez, and the rest of that crew.  

You remember John Yoo, don't you?  The one who said the Geneva Conventions are "quaint"?  The one who said torture is only treatment equivalent to major organ failure or death?

John Yoo and Co. were the enablers of the torture crimes of Bush and Cheney.  If this were a bank robbery, John Yoo drove the car.  If it were a murder, John Yoo provided the weapon, knowing full well what it would be used for.

So that raises the question:  Shouldn't any prosecution for torture go right after John Yoo and the other lawyers who gave the green light?  Just because they are lawyers "merely" giving legal advice, does that somehow let them off the hook?  Or are they just as culpable as the people who authorized torture and the people who committed it?

Originally posted to daveinojai on Sun Jan 25, 2009 at 04:37 PM PST.

Poll

Are the lawyers who authorized torture guilty of war crimes too?

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| 382 votes | Vote | Results

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Comment Preferences

  •  Are you going to send every lawyer (5+ / 0-)

    who loses a case to jail because his legal arguments didn't work?

    •  No, just the ones who give faulty advice (31+ / 0-)

      encouraging Presidents to violate our own laws and the Geneva Convention and encourage illegal torture.  

      The means is the ends in the process of becoming. - Mahatma Gandhi

      by HoundDog on Sun Jan 25, 2009 at 04:51:25 PM PST

      [ Parent ]

      •  It is likely that those laws and treatys (4+ / 0-)
        Recommended by:
        HoundDog, JSC ltd, Amber6541, stella0710

        have some gray areas that allow for differing interpretations. It's a lawyers job to argue those to his client's advantage and the ultimate job of the court to apply the law to a specific case. I think that it would be very difficult to prove that Yoo's advice in this situation was criminally faulty.

        •  Oh, I Think That Imbecile, Bush (7+ / 0-)

          ...will turn state's witness and tell a different story about Yoo. How much fun would that be?

          •  Gray areas? (16+ / 0-)

            Objections to the policy were ignored, and people who complained were demoted or transfered.

            Water boarding was prosecuted by the US in earlier wars.  If someone writes a memo saying it's now legal that's a crime.  

            Be ashamed to die until you have won some victory for humanity. Horace Mann (and btw, the bike in kayakbiker is a bicycle)

            by Kayakbiker on Sun Jan 25, 2009 at 05:11:36 PM PST

            [ Parent ]

            •  It may be immoral, but it's not likely a crime n/ (2+ / 0-)
              Recommended by:
              HoundDog, JSC ltd
              •  I, for one ... (19+ / 0-)

                ... would like to find that out at trial.

                I think a damned good case can be made against Yoo, et al.  I think if we allow what they did to pass it would set a very dangerous precedent.

                As well, the Bar Association ought to take a whack at this.

                I'd like to see them at trial.  They're innocent until proven guilty.  I would like to see a good lawyer prove them guilty.

                •  And you practice law in what jurisdiction? n/t (2+ / 0-)
                  Recommended by:
                  Nightprowlkitty, JSC ltd
                  •  LOL ... (16+ / 0-)

                    ... I've worked for lawyers for almost three decades.

                    Believe it or not, they quite often listen to me.  I respect their knowledge of the law and they respect my groping for justice.

                    I can think of several lawyers who could easily write out a case against Yoo.

                    Just as Yoo found it so easy to write a case for torture.

                    Most lawyers, if hired, could write up any kind of case at all.

                    Isn't that the point here?

                    •  Please tell me what crime Yoo committed (2+ / 0-)
                      Recommended by:
                      Richard Lyon, stella0710

                      malpractice, maybe.  But that's not a crime.  

                      •  Ha! (15+ / 0-)

                        I'm not a lawyer!

                        If I were a lawyer, I'd tell you I think Yoo would have to be investigated as part of a bigger case.

                        I think the reason I got so argumentative with the lawyer-defenders here is that they have such a limited view on this subject.

                        Valtin is a psychiatrist who is unafraid to call out his fellow psychiatrists as well as the APA, who as a result of his and others' activism, has had to confront their complicity with torture.

                        I am interested in why these commenters aren't as angry with Yoo, et al. and instead are so much more worried about the protections afforded lawyers by the law.

                        Valtin knows about the protections to psychiatrists, yet has no trouble condemning those doctors who participated in torture.

                        So yes, John Yoo should be in the cross-hairs.  I don't know if charging him with a crime is even the point so much as having what he did be part of a full and thorough investigation.

                        If I were writing the diary, I'd be focusing more on that.

                        I may end up writing one, though, because of this one.  When I think of all our professions -- doctors, lawers, accountants, all of whom have such supposedly strict codes of ethics.

                        And yet look what has happened.  They're not professions any more -- they're all businesses.

                        (Sorry for going off on so many tangents!)

                        •  Thanks for clarifying. Nobody is saying that (2+ / 0-)
                          Recommended by:
                          Nightprowlkitty, HoundDog

                          Yoo did a good thing.  But I don't want to see people here misled with the idea that Yoo can go to jail for torture.  Tht just is not going to happen.  Investigated, sure.  Raked over the coals -- that's different.  But under no theory of the law that I know if can writing a legal opinion make a person guilty of torture.  

                          •  Well ... (11+ / 0-)

                            ... regardless of the two big laws that protect lawyers (the other being attorney/client privilege), there's a level of criminality here that should indeed be investigated in a court of law.

                            How can we know whether or not Yoo committed a crime if we don't know exactly what happened and what he did?  His motivation?  All that?

                            It's not about going to jail, imo.

                            It's about restoring the rule of law.  If lawyers are allowed to do what Yoo did with no response, just business as usual, business that led to torture, the ultimate tyranny, then there's something wrong with our legal profession, imo.

                            I believe we do have the means for justice, including dealing with folks like Yoo.

                            We need good lawyers.  I think Holder is a good lawyer and hopefully he'll appoint a special prosecutor who is a good lawyer.

                            I can't think about punishment until I learn about what happened.

                            So I don't think we really know yet what is misleading in that sense.

                          •  Interesting... what if my lawyer... (3+ / 0-)
                            Recommended by:
                            Kayakbiker, Pluto, ksingh

                            gave me his legal opinion that robbing the corner store (for whatever reason) is A-OK?

                            When we go to trial and another lawyer defends me (because the first is a witness for the defense) using that opinion, what happens to the first lawyer if we lose? And my defense lawyer?

                            Ok... what if the person who gave me the advice in the first place wasn't a lawyer. Just some Joe on the street. Let me take a guess (IANAL). That Joe would probably have a cell right next to mine. The crime? I don't know... incitement to commit an indictable offense?

                            My point is I guess, where is the line between legal opinion, and incitement? Did Yoo's 'opinion' make chimpy and co. comfortable in what they were doing?

                            Let us think the unthinkable, let us do the undoable. Let us prepare to grapple with the ineffable itself, and see if we may not eff it after all. -Adams

                            by Clive all hat no horse Rodeo on Sun Jan 25, 2009 at 06:26:32 PM PST

                            [ Parent ]

                          •  Lots of questions (1+ / 0-)

                            in your hypothetical, the bad advice your first lawyer gave you is no defense to committing a crime.  You still committed a crime.  If the judge believed that you were stupid enough to rely entirely on what your lawyer told you even though anybody in your position would -- or should -- have known better, you might get some reduced sentence.  Maybe.  You'd sue the pants off your first lawyer for malpractice.  You'd make a complaint to the bar association and get him disbarred.  Your first lawyer could not be convicted of robbing that corner store, because he didn't do that.  

                            As far as I know, there is no such crime as "inciting to commit an indictable offense."  FYI, the U.S. Supreme Court has held that telling somebody else to commit a crime is protected free speech and cannot be a crime UNLESS I know when I tell you that there is a real risk of imminent lawless action.  In other words, if I tell you, I think you should go rob that store, that's not a crime.  It's free speech, under U.S. Supreme Court authority -- Brandenburg v. Ohio.  In order for it to be a crime on my part, I have to be standing with you outside the door, hand you the gun, open the door and tell you, I think you should take this gun right this very second and use it to rob this corner store.  That kind of thing.  Does that help "draw the line"?  

                            The person who commits the crime is responsible for the crime.
                            Not the person who told him to do it.  It is very very rare -- only in that "imminent lawless activity" situation -- where we hold somebody criminally accountable for any crime -- inciting a crime or anything like that -- simply for telling somebody else to commit it.  And "imminent" means like you're going to do it right now, this second, before the police or anybody can get there to stop you.

                          •  unless the person who told to do it (1+ / 0-)
                            Recommended by:
                            Nightprowlkitty

                            had signed an oath in one capacity or another. you seem to be forgetting that part. see my comment below.

                            working consciousness to raise consciousness

                            by john de herrera on Sun Jan 25, 2009 at 07:13:09 PM PST

                            [ Parent ]

                          •  Again, wrong, John. Violating an oath (1+ / 0-)
                            Recommended by:
                            Richard Lyon

                            is not necessarily a crime unless there is another criminal statute that says it is such.  Like it is a felony and/or misdemeanor, punishable by such and such.  Absent something like that, violating an oath is a bad bad thing, but is not CRIMINAL.  

                            If you think violating this oath is a CRIME, please point me to the federal or state statute that says so and prescribes the penalties for violating an oath.  As any lawyer knows, in order for any criminal statute to be constitutional, it needs to spell out exactly the proscribed criminal acitivity and the range of possible punishments.  Where is any such thing with respect to the violating an oath of office?  

                          •  wrong (1+ / 1-)
                            Recommended by:
                            dmhlt 66
                            Hidden by:
                            Richard Lyon

                            it's a criminal offense to violate an oath of office. read article vi of the constitution and read the oath of office.

                            the 1947 national security act actually limited free speech for government employees. yoo and his ilk are guilty. if you continue to advocate they are not, and you too have signed an oath, then you're guilty too.

                            if you have not signed an oath, then you're just another fascist asshole, playing dumb, hoping to run out the clock. good luck with that.

                            working consciousness to raise consciousness

                            by john de herrera on Sun Jan 25, 2009 at 07:50:26 PM PST

                            [ Parent ]

                          •  John -- so, so, so wrong (2+ / 0-)
                            Recommended by:
                            Richard Lyon, stella0710

                            A CRIME needs to be spelled out in a criminal statute.  A CRIMINAL STATUTE needs to say exactly what conduct is criminal AND what penalty is possible, otherwise it is unconstitutional as a violation of due process.  That is first year law school stuff.

                            The requirement that someone takes an oath does not (1) tell me what conduct is criminal or (2) tell me what punishment I could face if I do that proscribed conduct.   If it does not do BOTH, then it cannot be a criminal statute.  It cannot be the basis of charging someone with a crime.  That is abasic, basic, basic, first year law school principle.

                            And by the way, it is also first year law school stuff to know the differnce between a requirement of holding an office and a criminal statute.  

                            Please tell me you are not a lawyer.  

                          •  Please tell me ... (0+ / 0-)

                            ... YOU are not a lawyer!

                            For you and Richard Lyon to be demanding case law and statutes when you don't even know the facts of the case (i.e., there has been no discovery, and what we do have on the public record is incomplete) is a sign of really bad lawyering -- and this topic is too important for you to be throwing out this kind of nonsense when you don't even know what laws would or would not apply - because you don't know what has or has not been done by Yoo.

                            I don't think it's helpful for us to be making or not making a case when we don't have the facts.

                            I also find it very offensive that you are asking non-lawyers to cite case law instead of really discussing what Yoo did and how it affects the profession of law, as Valtin does with medicine.

                            Meh.

                          •  I'll bet you can't answer this, John: (0+ / 0-)

                            What's the CRIMINAL PENALTY for violating that oath?  How many years in jail? 1 to 5?  5 to 10?  10 to life?   How much of a fine?  

                            If you can't point me to a statute that spells that out with certainty, IT'S NOT A CRIME.  Period.  

                          •  your answers are here: (0+ / 0-)

                            working consciousness to raise consciousness

                            by john de herrera on Sun Jan 25, 2009 at 08:27:33 PM PST

                            [ Parent ]

                          •  You obviously don't read what you cite (2+ / 0-)
                            Recommended by:
                            Richard Lyon, stella0710

                            that link cited just one criminal statute:  5 U.S.C. 7311.  And, 5 U.S.C. 7311 makes it a crime for a government official to advocate overthrow of the federal government (the penalty being that anyone who advocates overthrowing the government cannot accept or hold federal office). I have seen no allegations anywhere that Yoo advocated overthrowing the United States government.    

                            I ask you again, where are the criminal penalties for simply violating the oath of office? Like for failing to "uphold the Constitution" (even if you could define what that means for criminal purposes)?  

                            Typically, the "penalty" for a government offical failing to "uphold the constitution" is not a criminal penalty, but a political solution -- impeachment or removal from office.  As the Supreme Court has made very very very clear, impeachment is a political matter, NOT a criminal matter. They are two completely different things.  

                          •  ... (0+ / 0-)

                            it's policy of our constitutional government to have three branches. did yoo advocate against that policy? no.

                            it's policy of the three branches that the u.s. does not commit or engage in acts of torture. did yoo advocate against that? yes.

                            as to the other stuff, you might want to place the 1947 national security act, and article vi of the constitution side by side, and figure out the legal argument for criminal activity.

                            (4) the term "employee" includes any person who receives a salary or compensation of any kind from the United States Government, is a contractor of the United States Government or an employee thereof, is an unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, except as otherwise determined by the President;

                            working consciousness to raise consciousness

                            by john de herrera on Sun Jan 25, 2009 at 09:20:14 PM PST

                            [ Parent ]

                          •  ... (0+ / 0-)

                            working consciousness to raise consciousness

                            by john de herrera on Sun Jan 25, 2009 at 09:40:20 PM PST

                            [ Parent ]

                          •  Thank-you for the detailed reply... (0+ / 0-)

                            the "freedom of speech" defense seems to be a weakness in the American legal system (IMHO- again, not a lawyer).

                            Let us think the unthinkable, let us do the undoable. Let us prepare to grapple with the ineffable itself, and see if we may not eff it after all. -Adams

                            by Clive all hat no horse Rodeo on Sun Jan 25, 2009 at 08:55:48 PM PST

                            [ Parent ]

                          •  Re: (0+ / 0-)

                            FYI, the U.S. Supreme Court has held that telling somebody else to commit a crime is protected free speech and cannot be a crime UNLESS I know when I tell you that there is a real risk of imminent lawless action.  In other words, if I tell you, I think you should go rob that store, that's not a crime.

                            Back to Yoo... (heh)

                            What if Yoo knew that chimpy and pals had already committed indictable offenses, and that what he was doing was legalising those acts retrospectively?

                            Let us think the unthinkable, let us do the undoable. Let us prepare to grapple with the ineffable itself, and see if we may not eff it after all. -Adams

                            by Clive all hat no horse Rodeo on Sun Jan 25, 2009 at 09:04:30 PM PST

                            [ Parent ]

                          •  how about conspiracy to commit torture? (3+ / 0-)
                            Recommended by:
                            ksingh, golconda2, Shhs

                            or to violate the Geneva Convention, which AFAIK America is still a signatory to?

                            Looking for intelligent energy policy alternatives? Try here.

                            by alizard on Sun Jan 25, 2009 at 06:49:21 PM PST

                            [ Parent ]

                          •  See my comment above (1+ / 0-)
                            Recommended by:
                            alizard

                            about Brandenburg v. Ohio and when you can be held liable in any way for inciting somebody else to commit a crime.  

                          •  bingo nt (0+ / 0-)

                            Steny Hoyer = a slam dunk argument for term limits

                            by jlynne on Tue Jan 27, 2009 at 11:19:59 PM PST

                            [ Parent ]

                      •  conspiracy to (0+ / 0-)

                        violate Geneva, the War Crimes Act and the US Constitution, Yoo's "legal advice memos" being the step taken in furtherance of the conspiracy.

                        Steny Hoyer = a slam dunk argument for term limits

                        by jlynne on Tue Jan 27, 2009 at 11:17:42 PM PST

                        [ Parent ]

              •  Not "likely" a crime? Fine, let's find out! (2+ / 0-)
                Recommended by:
                HoundDog, Shhs

                1/20/09 ... What a day!

                by dmhlt 66 on Sun Jan 25, 2009 at 06:06:34 PM PST

                [ Parent ]

                •  Meant to add more muscle to my Comment (10+ / 0-)

                  National Lawyers Guild accuses John Yoo as being a War Criminal - 1

                  "John Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," said National Lawyers Guild President Marjorie Cohn.

                  Let the courts rule if John Yoo is a War Criminal - 2

                  The United States used to not only investigate attorneys for their role in the perpetuation of war crimes—it used to prosecute them. After World War II, as part of the Nuremberg trials, the United States prosecuted 16 German attorneys and judges for war crimes and crimes against humanity for their role in implementing the "Night and Fog" decree. Three of the defendants in the so-called "Justice Case" held positions in the Ministry of Justice and directly advised the justice minister. These attorneys also drafted laws and rules for the administration of German-occupied lands and the operations of certain special courts. Many of these laws—and the courts themselves—ran afoul of the Geneva Conventions. The German lawyers argued, in their defense, that the Conventions did not apply because their enemies did not subscribe to them. They were ultimately convicted of war crimes and were each sentenced to 10 years in prison.

                  Let the courts rule is John Yoo is a War Criminal - 3

                  And of course, the torture lawyers fully appreciated from the outset that torture was a criminal act. Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law. [Emphasis added]

                  1/20/09 ... What a day!

                  by dmhlt 66 on Sun Jan 25, 2009 at 06:18:32 PM PST

                  [ Parent ]

                  •  If lawyers provide the cover (1+ / 0-)
                    Recommended by:
                    sistersilverwolf

                    for everyone involved in the torture fiasco, then all any politician needs to do in the future is ask enough lawyers until he or she gets the position they want to back their crime.  And they are then free to "operate" within the laws of the nation and to commit crimes with impunity.  

                    There is something horribly wrong with that notion.  

                    Be ashamed to die until you have won some victory for humanity. Horace Mann (and btw, the bike in kayakbiker is a bicycle)

                    by Kayakbiker on Sun Jan 25, 2009 at 08:44:51 PM PST

                    [ Parent ]

        •  I just wrote a clarification backing down (2+ / 0-)
          Recommended by:
          BigAlinWashSt, Shhs

          somewhat Richard, after reading yours and other comments.

          I'm not a lawyer, but support us trying to be the party of the rule of law, and consistent standards for both Dems and GOPs.  

          Even to the extent, that if legal tradition requires lawyers to be protected in order to give advice, I would back down, even if it allows some to go free in this instance, if it turns out to be a case of grey lines as you appear to suggest.

          Sorry, if my quick retort was faster than true wit.

          The means is the ends in the process of becoming. - Mahatma Gandhi

          by HoundDog on Sun Jan 25, 2009 at 05:16:57 PM PST

          [ Parent ]

          •  I share your feelings. (4+ / 0-)

            The reality is that law and justice are not the same things. In a well run society the best we can hope for it that there is considerable overlap between the two.

            If I had been in Yoo's shoes I would have resigned rather than figure out a legal rationale supporting Bush's position, but then again I wouldn't have gotten the job in the first place.

          •  Charles Manson and the Law (3+ / 0-)

            Charles Manson encouraged his followers to kill Sharon Tate and others because he believed they had the right to do so.

            If Charles Manson had a legal degree, would he then be innocent of any wrong-doing?  Did he simply give "bad legal advice" to his followers?

            Come on now.

            •  Conspiracy (0+ / 0-)

              is what Manson was convicted of. First, the jury found that Manson had control over the the people who did the killing.  They did whatever he told them to do.  Yoo did not have that kind of control over Bush.  He gave him advice, which Bush took into account in making his decision.  If Yoo told him not to torture, Bush could have done it anyway.  Yoo didn't control Bush.  Second, conspiracy like Manson was convicted of means planning the actual execution of the crime -- this guy is going to tie down Khalid Sheik M., this guy is going to hold the water, this guy is going to ask the questions, etc.  That kind of thing.  Real participation in planning the "doing" part of the crime.  If Yoo did that, if he conspired in the actual execution of the torture, sure.  But I haven't seen anything that says he did that.  All I've seen is that he wrote a legal memo that said that what Bush wanted to do was legal.  And maybe told Bush that what Bush wanted to do was legal.  I have seen nothing that indicates that Yoo had anthing to do with (1) planning how to do the torture; or (2) carrying out the torture.  If he did that, maybe there's some crime on his part.  

        •  Probably more criminally insane - kinda like (3+ / 0-)
          Recommended by:
          Philpm, ksingh, jayden

          the writings of the Unibomber - he felt he could rationalize his behavior too - doesn't mean his rationalization was sound though or even remotely near a "gray area".

          But you should really read the Geneva Conventions to which we are a party in the group of signatories.  Making a prisoner even slightly uncomfortable could be said to be torture under that broad definition and that was a very smart way of writing the definition of prisoner treatment.  There is nothing that the Republicans would like more than to have forms of torture defined so that they could come up with some hybrid version not enumerated and use that "legally".

          Anyhow, I have no idea whether John Yoo is prosecutable or not, but I would like to see his legal career - teaching at Berkeley especially - ended.

        •  A basic faulty premise there (6+ / 0-)

          Advocacy is fine for lawyers representing clients before a (theoretically) impartial judge, balanced by counsel for the other side.  That advocacy is then tested against established law.

          OTOH, A lawyer giving a lawmaker "advice" to those with the power to make law, purely to provide cover for a predetermined policy, is as culpable as those who commissioned the "advice" in the first place.

        •  The faulty premise (3+ / 0-)
          Recommended by:
          OnlyZuul, ksingh, HoundDog

          is right there in your argument.

          Advocacy is well and good, when one argues before an impartial judge, and is balanced by counsel for the other side--and the impartial judge is honor bound to decide based on established law.

          It's quite another thing when a lawyer is tasked to produce an opinion supporting a pre-determined outcome, commissioned by those with the power and responsibility to execute the law purely for the purpose of covering their asses.  That's just Nurembuerg territory in my book.

        •  The gray area is the idea the enemy combatants (1+ / 0-)
          Recommended by:
          ksingh

          are different...

          which is insane, but is the only argument hes got..

          Do not become the sycophants we have despised for 8 years.

          by justmy2 on Sun Jan 25, 2009 at 06:19:35 PM PST

          [ Parent ]

      •  I should clarify after reading other comments (3+ / 0-)
        Recommended by:
        ksingh, BigAlinWashSt, Knarfc

        stating that our law suggests lawyers cannot be held criminal liable for giving their client bad advice.  

        But, is there a distinction between "bad advice in good faith,"  and criminal conspiracies to intentionally help a client violate national or international law?

        My understanding is that lawyers are not supposed to help their clients commit crimes.   Do I not remember that the nature of Woo's assignment was "help us figure out how we can get around torture constraints?'

        But, if not, and Bush only asked for straight forward legal advice about how far he could go within the law, and Woo, acting in good faith, and only was outlining  his understanding of the boundary, then I will have to retract my comment.

        I believe in the rule of law so much, that I support abiding by it, even if it allows GOP scoundrels to escape accountability.

        I also believe we should hold ourselves to the same consistent standards for accountability and ethics, even if it means we have to engage in unsightly public soul searching, ethical self-reflection, and asking ourselves aggressive and uncomfortable questions.

        Even, if we appear to suffer short term disadvantage I believe investing in making the Democrats "the rule of law" Party will not only be the right the to do, but pay rich long term dividends.

        Let, the Republicans own "the might makes right, and tribal standards, and "our President right or wrong." with their "Baghdad Bob, apologists."

        And when we make the inevitable errors, or fall short of our own higher standards let's quickly acknowledge the gaps, correct them, and declare them as learning opportunities to adjust course and get back on track.

        Accountability does not have to mean wallowing in blame, negativity, and self-incrimination, but can instead be a powerful tool, like the guidance systems that got our spaceships to the moon, despite appearing to be off course most of the way.  

        Continuos ethical self-reflection can be the engine of accelerated learning and proactive adaptation.  

        The means is the ends in the process of becoming. - Mahatma Gandhi

        by HoundDog on Sun Jan 25, 2009 at 05:12:32 PM PST

        [ Parent ]

        •  International law is a generally murky area. n/t (2+ / 0-)
          Recommended by:
          HoundDog, JSC ltd
          •  If it is murky then it is not something we (3+ / 0-)
            Recommended by:
            HoundDog, BigAlinWashSt, Knarfc

            can really answer on Daily Kos, is it?

            GOP = Godless opposition party We Hassle to make America a Vassal (state)

            by Shhs on Sun Jan 25, 2009 at 05:16:58 PM PST

            [ Parent ]

            •  There in NOTHING (9+ / 0-)

              in the entire universe that cannot be answered on Daily Kos.

              <snark>

              •  I agree Richard. Well, at least debated (0+ / 0-)

                vigorously.   Now, if anyone tries to start hanging folks from trees, like in a Kangaroo court, I'm might shift over and agree with snarky shhs.   But, here we are debating social policy in a democracy.  

                So I would agree that we should acknowledge no limits to  the domain of our opinions, or topics on which we can pontificate on,  at least not in our solar system.  

                I only add this more modest constraint to your universal domain to increase our credibility and not appear grandiose or manic.  

                <sincere>

                The means is the ends in the process of becoming. - Mahatma Gandhi

                by HoundDog on Sun Jan 25, 2009 at 05:30:48 PM PST

                [ Parent ]

            •  Well, I'm not a lawyer. So I will not claim to (1+ / 0-)

              "answer" anything Shhs.  But, shouldn't we have strong opinions as citizens and express them vigorously in order to fulfill our obligations in a democracy? (or Republic)

              And, are you just being snarky?  If so, touche.  But, if you are seriously suggesting that we all just lower our eyes and move own to discussing TV programs then let me point out that the purpose of the this diary and this discussions is to inform, debates, and demand that our politicians and appropriate legal bodies hold the proper hearings and do the right thing.

              And, that our Party's leadership, forge the best social policy and law possible, which is exactly what we should be debating here.  And then raising all sorts of fuss to communicate our "findings" to our representatives and lobbying to get suitable laws passed and enforced.

              And the more "murky" it might be, the more we should probably be debating it.

              The means is the ends in the process of becoming. - Mahatma Gandhi

              by HoundDog on Sun Jan 25, 2009 at 05:25:12 PM PST

              [ Parent ]

              •  Uhm I'm not saying that we shouldn't (2+ / 0-)

                discuss this.  I was just replying to a comment about Int'l law being murky.  I think this discussion is great, I was just pointing to the fact that non of this is certain.  

                GOP = Godless opposition party We Hassle to make America a Vassal (state)

                by Shhs on Sun Jan 25, 2009 at 05:28:01 PM PST

                [ Parent ]

                •  I too think this discussion is great, and agree (2+ / 0-)

                  with you that Yoo's culpability  is murkier than I first thought.

                  What amazing smart people we have here shhs.

                  BTW, when I wondered if you were being "snarky" I did not mean to imply this would be a bad thing.

                  Ironically, the question of your culpability of "snarkiness" in this case, seem to parallel Yoo's.    If you were only being snarky in good faith, to entertain, or raise the wittiness of the debate,  then how could we hold that against you?

                  Only , if you were being snarky in a conspiratorial way, to aid the wrong side in a subterfuge against the common good and advancement of community understanding of the best way for us to advance the most progressive agenda possible, would my question contain any negative connotation against you.

                  And, as a gesture of good will, let me offer that it's sufficiently murky, that only you may every now for sure.

                  "=)

                  The means is the ends in the process of becoming. - Mahatma Gandhi

                  by HoundDog on Sun Jan 25, 2009 at 05:45:59 PM PST

                  [ Parent ]

                  •  Prosecuting Bush for these crimes (on American (2+ / 0-)

                    soil) is a lot more complex/murky then a lot of ppl on Daily Kos want to acknowledge.

                    GOP = Godless opposition party We Hassle to make America a Vassal (state)

                    by Shhs on Sun Jan 25, 2009 at 05:48:11 PM PST

                    [ Parent ]

                    •  Historically both the courts and congress (3+ / 0-)

                      have been reluctant to place too many restrictions on presidential authority because nobody can be sure about what kinds of problems the nation might face in the future.

                      Nixon was the only president who faced a serious risk of prosecution because he was basically a cheap crook.

                      •  Yea I know that is why I don't support (0+ / 0-)

                        indicting Bush or his cronies in the American courts. However, some of my prof. disagree even through they know the legal difficulties.

                        GOP = Godless opposition party We Hassle to make America a Vassal (state)

                        by Shhs on Sun Jan 25, 2009 at 05:53:05 PM PST

                        [ Parent ]

                    •  You may be right. And I say this as one of (1+ / 0-)
                      Recommended by:
                      Shhs

                      "those" people.   :-)  

                      I'm already beyond my ability to discuss intelligently whether impeachment after leaving office is possible.   Isn't the only penalty removal from office?

                      Although, I do believe some formal inquiry and finding is important in order to reestablish the correct precedent.

                      The means is the ends in the process of becoming. - Mahatma Gandhi

                      by HoundDog on Sun Jan 25, 2009 at 05:52:32 PM PST

                      [ Parent ]

                      •  Well if we want to prevent this from happening (1+ / 0-)
                        Recommended by:
                        HoundDog

                        again. we might want to push for an amendment to the Constitution.  

                        GOP = Godless opposition party We Hassle to make America a Vassal (state)

                        by Shhs on Sun Jan 25, 2009 at 05:54:14 PM PST

                        [ Parent ]

                        •  I would like to see what folks thought such an (1+ / 0-)
                          Recommended by:
                          Shhs

                          amendment should be.  

                          I was under the impression that our own existing laws and commitments to the the Geneva Conventions was already sufficient?

                          While, I've conceded that Yoo's involvement as a lawyer might be murky, does not everyone agree that Bush, Cheney's, Gonzales, and Rumsfeld's culpability is not murky?   Or are folks here going so far as to suggest that Yoo's potentially, incorrect legal advice, gets them off the hook?  

                          The means is the ends in the process of becoming. - Mahatma Gandhi

                          by HoundDog on Sun Jan 25, 2009 at 05:58:55 PM PST

                          [ Parent ]

                          •  We know that the Bushies involvement wasn't (1+ / 0-)
                            Recommended by:
                            HoundDog

                            murky.  What we don't know/ aren't completely sure about is if the executive branch can actually be tried.

                            GOP = Godless opposition party We Hassle to make America a Vassal (state)

                            by Shhs on Sun Jan 25, 2009 at 06:02:53 PM PST

                            [ Parent ]

                          •  Is this because, the Constitution specifies that (0+ / 0-)

                            the only accountability the president can be subjected to is impeachment, or are you saying that what we appear to know does not constitute an impeachable offense?  

                            Or are you distinquishing between the President, versus other members of the executive branch?   I do believe the Constitution allows impeachment of Cabinet officers, which would include Rumsfeld and Gonzales, but not Yoo.

                            The means is the ends in the process of becoming. - Mahatma Gandhi

                            by HoundDog on Sun Jan 25, 2009 at 06:07:44 PM PST

                            [ Parent ]

                          •  That doesn't protect him from criminal (1+ / 0-)
                            Recommended by:
                            HoundDog

                            prosecution after he's out of office.

                          •  I thought the point of protecting the president (0+ / 0-)

                            against prosecution was to prevent politicians from improperly using the threat of prosecution to either harass or intimidate a president with numerous or frivolous court challenges.  

                            But, if that protection ends after leaving office, it wouldn't seem to fully accomplish this intent.  

                            Are you saying that a former president can be prosecuted after office for committing potentual crimes after leaving office, or even for actions taken while in office?   I thought these were only addressable by impeachment hearings?

                            The means is the ends in the process of becoming. - Mahatma Gandhi

                            by HoundDog on Sun Jan 25, 2009 at 06:20:54 PM PST

                            [ Parent ]

                          •  That's why Ford pardoned Nixon. (1+ / 0-)
                            Recommended by:
                            HoundDog

                            While he is sitting as President an exercising the authority of the office prevailing theory holds that he cannot be indicted. That is not spelled out clearly in the Constitution. There was considerable debate about with the Watergate grand jury. They finally settled on referring to Nixon as an unindicted  co-conspirator. It was generally acknowledged that he could be criminally indicted once he was removed from office.

                          •  Thanks for this clarification. (1+ / 0-)
                            Recommended by:
                            Richard Lyon

                            The means is the ends in the process of becoming. - Mahatma Gandhi

                            by HoundDog on Sun Jan 25, 2009 at 06:39:59 PM PST

                            [ Parent ]

          •  What I love about this argument (1+ / 0-)
            Recommended by:
            HoundDog

            Not directing this against you, but against Bush when he opined in a press conference that the word "torture" was "kind of vague."  Wasn't he the guy who held himself out as having such a pure moral compass, having little trouble recognizing Evil when he saw it?

      •  It wasn't just that Woo gave "faulty advice" (0+ / 0-)

        It was egregiously faulty, flying in the face of the obvious meaning of the Geneva Conventions and the Nuremberg precedents.  Even if John Woo sincerely feels almost everyone else is wrong about the law on this point, he should be aware that he's disagreeing with the prevailing legal opinion and he should have made his client aware of that.  (If the vast majority of lawyers don't consider torture prohibited under the Geneva Conventions, let's take Shakespear's suggestion and kill them.)

        It was on a critical question; getting it wrong could lead to capital criminal offenses that are punishable by the death penalty in this country.

        It was clear that the faulty legal advice would lead directly to such capital offenses.

        It also seems likely that somebody did a lot of lawyer shopping to find someone who would give the opinion Bush and Cheney wanted to hear.  That should have been a warning to include the caveat, "Lots of people would not agree with this."    

        We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

        by david78209 on Sun Jan 25, 2009 at 06:29:46 PM PST

        [ Parent ]

        •  That may all be true (1+ / 0-)
          Recommended by:
          david78209

          but it still doesn't make Yoo guilty of torture.  The person who commits the crime is guilty of the crime. The U.S. Supreme Court in a number of cases, notably Brandenbug v. Ohio, has made clear that telling somebody else to commit crime is free speech, unless it is likely to result in imminent lawless activity -- as in, here, take this rock and throw it against that cop right now, this second. Any thing else -- even I think you should go throw rocks at the cops in the next hour -- is protected free speech under Brandenburg v. Ohio.  

          Telling somebody they should commit a crime is generally not a crime.  

    •  We Do Occasionally If It's Proven to Be (1+ / 0-)
      Recommended by:
      Amber6541

      negligent or criminal in some fashion, don't we?

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun Jan 25, 2009 at 04:55:09 PM PST

      [ Parent ]

      •  Just negilence would probably (3+ / 0-)
        Recommended by:
        coffeetalk, JSC ltd, stella0710

        be a matter of a civil malpractice action. Usually the only way that lawyers expose themselves to criminal liability is if they conspire to present false evidence in court.

      •  I don't know that we ever have (3+ / 0-)
        Recommended by:
        HoundDog, Richard Lyon, coffeetalk

        Short of helping someone bust out of jail or launder their assets, I don't think lawyers have gone to jail in recent years for anything related to the representation of their clients.

        -5.38/-3.74 We're currently in a sig interregnum. A siggie vacante, as it were.

        by Rich in PA on Sun Jan 25, 2009 at 05:03:02 PM PST

        [ Parent ]

      •  Here's a real case (4+ / 0-)
        Recommended by:
        Adam B, Lujane, Shhs, Amber6541

        That involved someone with the same name that I have.  He was a criminal defense attorney, his client had committed some very successful armed bank robberies.  The attorney offered to launder the money to the Bahamas and split it with his client.  The client decided he could get a better deal by telling the police what his lawyer had offered.  So the cops wired the bank robber, who got the attorney to make the same offer on tape.  The attorney with my name was disbarred and convicted and went to prison.  

        So attorneys are not immune from prosecution.

        "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

        by Navy Vet Terp on Sun Jan 25, 2009 at 05:03:43 PM PST

        [ Parent ]

        •  But that had nothing to do with legal advice. n/t (3+ / 0-)
          Recommended by:
          JSC ltd, Amber6541, stella0710
          •  It had to do with illegal advice - advice (3+ / 0-)
            Recommended by:
            skrekk, HoundDog, Shhs

            to break the law.  It isn't actually totally unrelated in terms of the question of Yoo's conduct.  Not that what Yoo did might be easy to prosecute, but if there was evidence that he was deliberately subverting the law, he'd be culpible I imagine.  He is afterall an officer of the court and does have some responsibility to uphold it...

            •  In this case it sounds like Woo might be held (0+ / 0-)

              accountable with Bush, Cheney, Rumsfeld, and Gonzales for conspiring to commit or encourage torture and breaking of national and international law.

              Not for giving legal advice.  Although, I will admit it seems murkier now than when reading the first comment.

              If Woo's involvement was only as a good faith attorney giving legal advice, and not as a co-conspirator, then I would agree that only the other 4 should be indicted.

              The means is the ends in the process of becoming. - Mahatma Gandhi

              by HoundDog on Sun Jan 25, 2009 at 05:37:21 PM PST

              [ Parent ]

        •  That is exactly my point (3+ / 0-)
          Recommended by:
          JSC ltd, Amber6541, stella0710

          That lawyer did something more than give legal advice.  He committed a crime -- money laundering -- himself.  That lawyer is guilty of the crime he committed -- money laundering.  That lawyer is not guilty of the crime that his client committed.  

          Yoo cannot be indicted for a crime that Bush committed.  

          •  Advice to commit torture (or acquiesence), (3+ / 0-)
            Recommended by:
            Nightprowlkitty, Shhs, FarWestGirl

            is a crime against humanity (not a war crime per se).  As "Compound F" notes above, many lawyers were convicted for precisely this at Nuremberg.  The law is a bit different now: we have an international treaty (which we wrote) that specifically applies.

            Here's what international lawyer Philippe Sands had to say about Yoo:

            I’ve laid out the reasons why I believe John Yoo has participated in authorizing torture, and that exposes him to investigation. But I entirely accept that until he is actually condemned by a court of law, he is perfectly entitled to carry on peddling views, even if I violently and fundamentally disagree with those views.

            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

            by skrekk on Sun Jan 25, 2009 at 05:42:02 PM PST

            [ Parent ]

            •  The only way anyone has ever been (0+ / 0-)

              prosecuted for war crimes, or any other violation of "international law", is after they lose the war.

              The victors define the crimes, and mete out the punishments.

              It has always been so. It will likely always be so.

              Throughout history, there has been only one international law...

              Win.

              Because if you can't enforce it, it isn't a law.

              --Shannon

              "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
              "Dissent is patriotic. Blind obedience is treason." --me

              by Leftie Gunner on Sun Jan 25, 2009 at 07:27:42 PM PST

              [ Parent ]

        •  The lawyer participated in the crime, (3+ / 0-)
          Recommended by:
          Richard Lyon, JSC ltd, stella0710

          and didn't just give advice.  So it's a different kettle of fish.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Sun Jan 25, 2009 at 05:13:45 PM PST

          [ Parent ]

          •  And Yoo didn't? (2+ / 0-)
            Recommended by:
            john de herrera, Shhs

            Why are you and everyone else so sure he did not engage in these illegal activities?  Seriously.  In this quest to make sure that there are no over prosecutions (which is fair) people seem to be talking out of their asses about what happened.  The fact is that none of us really have a complete understanding of what happened and how all of this went down.  We do not know whether Yoo authored that "opinion" in earnest or with the full intent to deceive and rationalize something that he understood to be illegal and probably should have reported to the court.  I do not think than any of these people should be able to avoid scrutiny.  If it is found that they were acting within the law then fine, but insisting that they were just giving legal advice and therefore had no culpability is an assumption on your part at this point.  

            I am sure John Dean would have loved to have kept his law license, but he was unable to do that.  He was the White House lawyer just giving advice too when he got in trouble...

            •  Even if Yoo did this (2+ / 0-)
              Recommended by:
              JSC ltd, stella0710

              We do not know whether Yoo authored that "opinion" in earnest or with the full intent to deceive and rationalize something that he understood to be illegal and probably should have reported to the court.

              He cannot be guilty of torture for writing a legal opinion.  Period.  

              Writing a legal opinion with the intention of deceiving means your client -- the one that relied on the opinion -- can sue you for malpractice or maybe fraud.  It does not make you guilty of the crime that your client committed.  

            •  If Yoo tortured somebody, (1+ / 0-)
              Recommended by:
              coffeetalk

              Yoo would be guilty of a crime.  Apparently, Yoo only offered to Bush an argument based on international law that attempted to justify torture.  I don't think it matters how you bend it, offering such advice probably isn't a crime, absent extraordinary circumstances such as a proceeding akin to the Nuremberg trials.

              We do not know whether Yoo authored that "opinion" in earnest or with the full intent to deceive and rationalize something that he understood to be illegal and probably should have reported to the court.

              I'm not sure what you mean here.  If by "in earnest," you mean that Yoo really thought that his memo was an accurate reflection of the law, I believe that writing a memo that the lawyer knows does not accurately reflect the law is best described as "legal malpractice."  As far as reporting something like this to a court, strict rules generally prohibit a lawyer from disclosing confidential client information to anyone, even a court; where the rules are less restrictive, e.g. where the commission of a crime may be impending, the rules say the lawyer "may" disclose confidential client information, and that rule may not have even been in effect when Yoo wrote the memo in question.

              If it is found that they were acting within the law then fine, but insisting that they were just giving legal advice and therefore had no culpability is an assumption on your part at this point.

              I might point out that your insistence that Yoo did something beyond writing a legal memo is an assumption on your part at this point.

              John Dean was convicted of obstruction of justice because he paid hush money to the Watergate burglars, not because of any legal theories he floated to Nixon.  Your comparison is not apt.

              I do not think than any of these people should be able to avoid scrutiny.

              At least we agree on something!

              •  I am not saying that there is a case here (0+ / 0-)

                given what people know right now at all - or ever for that matter - I am saying in part that we don't know much about how all of this went down - we don't really know what any of these people did in their construction and implementation of this program yet.  We may never know or we may find out in 20-30 years.  I am not inclined to think that anyone currently in government is going to lift a finger to find out right now either.

                •  What Yoo had the power to do here (0+ / 0-)

                  seems pretty clear, though.  Bush said to him something along the lines of, "Can I do x?"  Yoo's job was to analyze all the issues surrounding that question, and come back with an answer.  Yoo answered something like "Under y circumstances and to z degree, the President can do x."

                  That's probably the limit of Yoo's involvement.  He certainly did not have the power to authorize anything beyond some legal research.  He wasn't in a position to answer the related question of "should the President do x?" or give Bush any advice along those lines.  

                  I wholeheartedly agree that the entire situation needs to be put under a microscope, but based on Yoo's job description, he's not going to be the big germ they look for.

        •  Another case--Hollinger Intl (0+ / 0-)

          Mark Kipnis was one of the four defendants involved in the the trial that featured Conrad Black as the main star.

          Mark Kipnis was the lawyer for Hollinger International. He told Black and the others that the non-compete clauses that they wanted to insert in contracts for the sale of newspapers in the Hollinger chain were legal, even though the non-compete clauses called for payment of big sums of money to Black and others (not to the company) to refrain from competing. Kipnis got a bonus of $150,000, but the judge accepted evidence that that wasn't for the non-compete clauses but for his work in general. So he was the only one of the four defendants who didn't get any money from this non-compete business.

          Anyway, he was convicted, but the judge gave him the lightest sentence: five years of probation. Conrad Black is serving his sentence in a federal prison in Florida.

    •  If your attorney (6+ / 0-)

      advises you that kidnapping, rape, torture and murder is legal, he is stupid and culpable.  

      Yoo et al gave material aid and to the commission of  a crime.
      Conspiracy comes to mind.

      •  I think a case could be made ... (6+ / 0-)

        ... that the advice was "bought," i.e., Bush et al. told Yoo what their legal advice should conclude.

        I think a good lawyer could find plenty to look at in the case of John Yoo.

        At the very least we ought to have the full story of what happened between Yoo and Bush & Cheney.

        •  Lawyers should be required to work for free. n/t (0+ / 0-)
          •  Eh. (3+ / 0-)

            You miss the forest for the trees.

            For all that it's interesting to speculate on whether there is any precedent to punish lawyers like Yoo, illuminating the protections we afford lawyers in this society, I don't think that is what I care to focus upon.

            I'm not advocating that John Yoo and his cronies be taken to court separately or thrown in jail.

            I am (and have for months now, under the Citizen's Petition for a Special Prosecutor project) advocating that Bush and Cheney be tried, that Eric Holder appoint a special prosecutor to investigate charges of torture.

            As part of that case, Yoo, et al. would (and should) also be investigated.

            We need to know what happened.  This is about lawyers per se as Valtin's many essays on psychiatrists who willingly worked at Gitmo "supervising" torture is about the protections afforded doctors in our society and laws.

            I am assuming our laws are strong enough to withstand this kind of investigation.  I am not interested in revenge here.  There is an urgent need to know the truth, and I believe that using the full force of the law is the only way we will get to that truth.  Because crimes have been committed.

    •  Holy shit (4+ / 0-)

      What sophistry!

      We are NOT talking about every lawyer here.

    •  This is different. (0+ / 0-)

      If a client tells a lawyer he's going to embezzle money and that he wants a memo from the lawyer saying it's legal -- to use as an "advice of counsel" defense, the lawyer should refuse.  That's notwithstanding that the lawyer should, after the fact, vigorously argue on the client's behalf that it was legal at the trial.  It's not the quality of advice that's the issue.  It's whether the lawyer aided or encouraged the crime itself.

      Where perception is reality, the truth is irrelevant.

      by legalarray on Sun Jan 25, 2009 at 06:04:33 PM PST

      [ Parent ]

      •  Sure, the lawyer should resign. Absolutely. (0+ / 0-)

        If he doesn't resign, however, and tells the client that, if you do x, y, and z, that's legal, then the lawyer may be guilty of malpractice.  He may be disbarred.  The lawyer did not commit the crime of embezzlement.  The client did.

        •  This is different - still. (1+ / 0-)
          Recommended by:
          coffeetalk

          If the lawyer only privately tells the client the crime is legal, he's just guilty of bad advice -- assuming he doesn't go farther and tell him how to do it or help him some other way -- like giving him an "opinion of counsel" letter to facilitate inducing others to commit crimes.

          Where perception is reality, the truth is irrelevant.

          by legalarray on Sun Jan 25, 2009 at 06:51:53 PM PST

          [ Parent ]

  •  As far as I know (5+ / 0-)

    giving bad -- even very very bad -- legal advice is not a crime.  You can't go to jail for it.  Your client -- and only your client -- can sue you for malpractice, of course. If your legal advice is so bad that it is below any pretense of even being legal advice, maybe you can be disbarred.  But that's not the same thing as it being a crime.  

    And before you start saying, well, we were his "client," the ethical rules of being a lawyer don't see it that way.  

    •  A lawyer can't go to jail if he tells a client to (1+ / 0-)
      Recommended by:
      Amber6541

      lie?? Or to cheat? Or to concoct evidence? To deliberately break the law ("go ahead, rob a bank, it's fine...")

      If a lawyer can be brought up on charges for any of those instances then surely he can be charged for something if he tells the head of state that it's okay to torture and ignore international treaties.

      •  If the lawyer is part of the criminal activity (1+ / 0-)
        Recommended by:
        JSC ltd

        like if he holds the gun in a bank robbery, or if he uses his own bank accounts in money laundering, he is guilty of a crime because he participated in the criminal act.

        If he tells his client it's ok to rob a bank, his client will sue the hell out of him for malpractice, and he'll lose his law license. But if all the lawyer did is tell the client that it's ok to rob a bank, and the client went out and robbed the bank, the lawyer is not guilty of bank robbery. The lawyer himself has to commit the crime -- not just give advice that it's ok to commit the crime -- in order for the lawyer to be guilty of the crime.  

        •  Can he be debarred? n/t (0+ / 0-)
          •  Possibly, if his legal advice (1+ / 0-)
            Recommended by:
            JSC ltd

            was so really really below the standard of what one might expect of a lawyer.  But that's not something a prosecutor can do.  It's not a crime.  In order for that to happen, typically someone brings a complaint to the Bar Association, and the committee of the Bar Association makes a recommendation to the Supreme Court for the state where the lawyer is licensed to practice.  The Supreme Court of that state decides whether the advice was so bad as to warrant disbarment.  And that's very rare.  Typically, they only disbar lawyers who commit crimes themselves, like stealing their clients' money.  

  •  Interesting... (10+ / 0-)

    No lawyer is ever criminally liable for legal advice offered in good faith.

    Yeah but anyone really believe JohnYoo the Hutt acted in good faith?

    (1) D.I.E.B.O.L.D.: Decisive In Elections By Ousting Liberal Democrats.
    (2) R.A.T.S.: Roberts, Alito, Thomas, Scalia.
    (3) -8.75, -8.10

    by Archangel on Sun Jan 25, 2009 at 04:44:06 PM PST

  •  Go After Yoo... (12+ / 0-)

    ...until he squeals like a pig.  They should put enough heat on Yoo and make him believe he is in deep doo-doo, then get him to turn evidence against Rove, Cheney, Bush et al.  As much as I would like to see them indicted, convicted and jailed, I don't think it will happen.  But they will be forever shamed and Bush's "Legacy Redemption (TM)" will be a greasy skidmark on the underwear of American history.

    "America needs a (pay) raise..." - Blue Jersey Mom

    by Skylarking on Sun Jan 25, 2009 at 04:44:47 PM PST

    •  Even more important than shamed....we need to (8+ / 0-)

      dispute the notion that the Executive decides what is legal in pursuit of Constitutional duties for national security. That is a dangerous legacy which the foundation of all of our civil rights.

      •  threatens all of our civil rights n/t (0+ / 0-)
      •  We Can't Fix This Without Amendment (1+ / 0-)
        Recommended by:
        Amber6541

        I'm thinking.

        If we convict, the next criminal president will go on and issue mass pardons as needed.

        Meanwhile he can ravage the planet for up to 8 years because nobody outside his branch has power to enforce. He only needs 40 allies in the Senate and he's even politically immune from removal.

        --Unless we can do with law enforcement, some analogue of what the framers did with war powers, putting them in 2 branches, so that if there is a question of Executive branch illegality, there is enforcement outside the branch to initiate a prosecution, without it being a political distraction like impeachment.

        We need to be able to stop the lesser crimes early on, which make the foundation for the big ones.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sun Jan 25, 2009 at 05:01:00 PM PST

        [ Parent ]

  •  Bad analogy (3+ / 0-)
    Recommended by:
    corvo, OleHippieChick, Amber6541

    If this were a bank robbery, John Yoo drove the car.

    The getaway drive would be a relatively minor accomplice in a bank robbery, compared to those who planned and operated it.

    That said, who's to say that John Yoo and his ilk didn't deliver the legal opinions that they were ordered to deliver, by those (Bush, Cheney, et al) who were planning nefarious deeds?

    •  John Yoo was more like the guy (1+ / 0-)
      Recommended by:
      skrekk

      Who supplies the guns and the car and who cases the bank and advises the bank robbers how best to do the robbery.

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Sun Jan 25, 2009 at 05:06:23 PM PST

      [ Parent ]

      •  Correct. An accomplice... (0+ / 0-)

        who the Feds eventually get to turn on the masterminds (or at least, that's what Hollywood would have us believe)

      •  No, Woo is like the lawyer who tells his (2+ / 0-)
        Recommended by:
        Navy Vet Terp, Shhs

        druggie client that it's okay to mug a little old lady to get money for his fix.

        •  Exactly (1+ / 0-)
          Recommended by:
          JSC ltd

          but the lawyer is not guilty of the crime of mugging the little old lady.  The client is.  

          The lawyer committed malpractice, but malpractice is a civil matter -- the client can sue the lawyer.  It is not a crime.

          •  And the lawyer goes to court (0+ / 0-)

            and convinces the jury that he said hug instead of mug.

            •  If the lawyer lies under oath (1+ / 0-)
              Recommended by:
              JSC ltd

              in court, that's perjury.  That's a separate crime.  Then the lawyer is guilty of perjury.  The lawyer is still not guilty of the mugging.  

              Just like Yoo is not guilty of torture.  The people who tortured -- or who had the power to order the torture -- are guilty of torture.  

          •  Not quite exactly, since there's no international (2+ / 0-)
            Recommended by:
            Nightprowlkitty, Shhs

            law controlling that matter.  On the torture issue there is.

            I think you're confusing Yoo's legal malpractice with his obligations under the treaty as a US official.  They are different things.

            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

            by skrekk on Sun Jan 25, 2009 at 06:44:56 PM PST

            [ Parent ]

            •  His obligations under international treaties (0+ / 0-)

              are not, as I understand it, the same as being guilty of a crime.  In order for violation of the provisions of international treaties to be a domestic crime, there must be domestic legislation that makes it so.  The intenational treaty, in and of itself, does not equal domestic criminal activity.  

              And, as I've said elsewhere, I think you're interpretation of that provision is not legally correct.  But, while I'm a lawyer, that is not my particular area of the law.  

              •  I have seen the (0+ / 0-)

                theory/notion that the act of ratification of treaties by the Senate automatically incorporates their provisions into US law. Do you have any views of that?

                •  Any treaty is considered the highest law of (0+ / 0-)

                  the land.  We do have laws prohibiting torture (18 U.S.C. § 2441 and 2340A), and Yoo could readily be charged under the conspiracy clause.  However, even absent those laws the supreme court has determined that treaties are controlling, contrary to what "burrow owl" notes elsewhere.

                  The president of the National Lawyers Guild said this:

                  The high officials of our government and their lawyers who advised them should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their crimes.

                  Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                  by skrekk on Sun Jan 25, 2009 at 07:44:16 PM PST

                  [ Parent ]

                  •  The National Lawyers Guild is not (0+ / 0-)

                    exactly a mainstream organization.

                    •  How about the ABA? (0+ / 0-)

                      link (PDF):

                      FURTHER RESOLVED, That the American Bar Association urges the United States government to pursue vigorously (1) the investigation of violations of law, including the War Crimes Act and the Uniform Code of Military Justice, with respect to the mistreatment or rendition of persons within the custody or under the physical control of the United States government, and (2) appropriate proceedings against persons who may have committed, assisted, authorized, condoned, had command responsibility for, or otherwise participated in such violations.

                      Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                      by skrekk on Sun Jan 25, 2009 at 08:02:19 PM PST

                      [ Parent ]

                      •  Unlike the NLG the ABA isn't (0+ / 0-)

                        prejudging anybody's guilt. They certainly don't make any mention of Mr. Yoo.

                        •  Nor does the NLG. Read the article. (0+ / 0-)

                          Both organizations call for exactly the same thing: investigation and possible prosecution.

                          Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                          by skrekk on Sun Jan 25, 2009 at 08:09:24 PM PST

                          [ Parent ]

                          •  The NLG statement seems to imply (0+ / 0-)

                            that prosecution is more or less inevitable.

                          •  They use the word "should" a lot. (0+ / 0-)

                            But I agree with their concluding sentence:

                            John Yoo, Jay Byee, and David Addington should be subjected to particular scrutiny because of the seriousness of their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of domestic and international law.

                            I think the reason so many lawyers and associations have called for an investigation is because no one thinks it's inevitable - everyone realizes that politics will likely prevent domestic prosecution.  Even with blatant, documented evidence of a crime that's why we have to demand prosecution.

                            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                            by skrekk on Sun Jan 25, 2009 at 08:48:31 PM PST

                            [ Parent ]

                          •  I'm all for a full and through investigation. n/t (1+ / 0-)
                            Recommended by:
                            skrekk
                •  It does not make a violation of internatonal (0+ / 0-)

                  treaty a crime unless criminal penalties are spelled out in advance.  In other words, for it to be a crime -- something you can go to jail for -- the law needs to tell you, in advance, if you do x, you can get 5 to 10 years in jail.  If you can show me the criminal statute that does that (I'm not aware of any) then you can say it's a crime.  Without that, no crime.  Perhaps civil liability, but not a crime.  

  •  Bush's defense: trickle up legalism... (4+ / 0-)
    Recommended by:
    OleHippieChick, mommaK, Shhs, Amber6541

    the lawyers made up the rationale actually based upon a unitary executive who had the right to determine what was legal because he declared it legal.

    it is a circular argument behind which I don't think they can hide. Ultimately, whether or not we actually prosecute or convict isn't as important as that we investigate it and dispute this dangerous notion of the Presidency.

  •  And your poll is not phrased correctly at all (6+ / 0-)

    Lawyers did not "authorize torture" -- mainly because they had no authority whatsoever to authorize anything.  Yoo could not have told anybody to go ahead and start the torture -- he had no authority to do that.  What they did is give legal advice as to whether the actions contemplated by the president, VP, and others were legal.  That is not the same thing at all -- ask any lawyer.  We don't "authorize" our clients, or those working for our clients, to do anything.  We provide legal advice.  

    •  I think you missed the point.... (3+ / 0-)
      Recommended by:
      KateCrashes, Lujane, Amber6541

      Bush himself maintains that the lawyers gave him the green light.... in his mind they authorized it.

      •  They constructed a legal case for Bush/Cheney (5+ / 0-)

        to make the decision to torture and to spy on us. However, the decision was made by Bush/Cheney/Rumsfeld/Rice etc. and carried out by underlings. To hide behind the lawyer's advice is hardly a defense.

        If you could get a lawyer to advise you it would be ok to take your neighbor's car, it doesn't qualify as a defense when you are prosecuted for it.

        •  I used the same kind of analogy in my comment (2+ / 0-)
          Recommended by:
          JSC ltd, stella0710

          If you could get a lawyer to advise you it would be ok to take your neighbor's car, it doesn't qualify as a defense when you are prosecuted for it.

          And the lawyer doesn't go to jail when you take your neighbor's car.  The law doesn't work that way.  If he's your lawyer, you can sue him for malpractice.  But he doesn't go to jail because he didn't take the car.  

      •  The Bush is the one guilty of "malpractice" (5+ / 0-)

        if he in any way, shape, or form thinks he needed somebody to tell him he could do it.  Suppose Yoo had said I don't think it's legal.  Does that mean Bush could not order it?  Of course he could.  He may have decided not to, but he still had the authority to authorize it, no matter what Yoo said or didn't say.  

        Look, if I tell you that transferring this money from this account to that one is probably not money laundering under the law (no lawyer on earth gives 100% guarantees -- a slam dunk in our book is like an 80%) and you go ahead and move that money around, and a jury later decides that is was money laundering, I don't go to jail.  You probably sue  the hell out of me for malpractice, but I don't go to jail because I did not do the actual crime, and I had no authority to force you to do it.  I told you it would be ok under the law (wrong advice), but that's not the same as committing the crime myself.  

  •  Yoo also said that the question of whether (12+ / 0-)

    the president had the right to crush the genitals of a little boy depended on why the president wanted to have the little boy's genitals crushed.

    Yoo is one of the few Americans I know of with a pure Nazi mentality, and no, I don't give a g-d damn about Godwin's law at this point.

    Dammit, it's time for some poetry! And some news!

    by Yosef 52 on Sun Jan 25, 2009 at 04:46:58 PM PST

  •  Didn't Bush/Cheney require that (3+ / 0-)
    Recommended by:
    david78209, Rogneid, OleHippieChick

    they get the answer they want, no matter how many people they had to fire to get it?

    We never know the worth of water `til the well is dry. Thomas Fuller 1732

    by Amber6541 on Sun Jan 25, 2009 at 04:51:08 PM PST

    •  So Bush's defense will be that Yoo (5+ / 0-)

      authorized it.... and Yoo's defense will be that Bush made him do it!

      Cute!

      •  Bush has never said that Yoo "authorized" (4+ / 0-)
        Recommended by:
        burrow owl, Rogneid, VClib, JSC ltd

        anything because Bush -- the "decider" -- knows full well that Yoo could not authorize anything. Suppose Bush wanted to say no to torture -- could Yoo authorize it anyway?? Suppose Yoo had told him it was illegal -- could Yoo have stopped him if Bush wanted to do it anyway?

        Yoo gave him legal advice as to whether his advice would be legal. That's not the same thing as "authorizing" the actions, at least not under the law, and not for purposes of criminal liability.  

        •  Well, you might be splitting hairs here a bit.... (1+ / 0-)
          Recommended by:
          Amber6541

          Bush did clearly state that the lawyers told him that these "enhanced interrogation techniques" were legal.....

          I would have to see the transcript of the interview to find out whether Bush used the word "authorized," but that was clearly the intent of his remarks.

          No you can make the case that the lawyer's advice does not amount to some technical definition of authorization, but in common language that is clearly what Bush is maintaining.

          •  If you are talking about a CRIME, then yes, (4+ / 0-)
            Recommended by:
            burrow owl, VClib, JSC ltd, stella0710

            splitting hairs does matter.  Lawyers know full well that, when we give legal advice to clients, we can be liable for malpractice.  If I tell a client not to pay money under a contract, and that it's ok, and it later turns out that a court determines that was a breach of the contract, MY CLIENT is liable for the breach of contract, not me.  The party on the other side of the contract can't sue me.  MY CLIENT can sue me for malpractice.  

            If I tell my client to do such and such and it won't be a crime, and he does it, I have not committed a crime.  My client has.  I cannot be charged with a crime.  I can be sued by my client for malpractice -- big time.  By I cannot be convicted of the crime because I didn't do it.  

            So when you are talking about being indicted for a crime, then yes, it matters.  

          •  All parties to torture are liable. (2+ / 0-)
            Recommended by:
            david78209, Nightprowlkitty

            Even those with mere knowledge of it.

            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

            by skrekk on Sun Jan 25, 2009 at 06:47:20 PM PST

            [ Parent ]

            •  Is that an ethical assertion or law? (0+ / 0-)

              It ought to be law, but is it supported by something like the Nuremberg precedents?

              We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

              by david78209 on Sun Jan 25, 2009 at 07:14:06 PM PST

              [ Parent ]

              •  Read the CAT. (1+ / 0-)
                Recommended by:
                david78209

                It says that in the very first sentence of the treaty.  Article 1.1:

                ...or acquiescence of a public official or other person acting in an official capacity.

                And from our 1999 report to the Committee Against Torture:

                Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

                Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                by skrekk on Sun Jan 25, 2009 at 07:57:01 PM PST

                [ Parent ]

                •  Is it a criminal offense or 'just' a dereliction (1+ / 0-)
                  Recommended by:
                  skrekk

                  of duty to "condone or tolerate torture in any form"?  We have to drop back to the Nuremberg precedents to call it a criminal offense.

                  It sure ought to be.

                  We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

                  by david78209 on Sun Jan 25, 2009 at 08:40:47 PM PST

                  [ Parent ]

                  •  The real issue here (1+ / 0-)
                    Recommended by:
                    david78209

                    is it against US law?

                    •  It's against the CAT. Treaties are US law even (1+ / 0-)
                      Recommended by:
                      david78209

                      if no enabling law exists.  Further, we've asserted to the Committee that US law fully enacts the CAT.

                      Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                      by skrekk on Sun Jan 25, 2009 at 08:51:05 PM PST

                      [ Parent ]

                      •  I think that is a matter open to debate. n/t (1+ / 0-)
                        Recommended by:
                        david78209
                        •  Well, there is the 1999 Ogbudimkpa decision... (1+ / 0-)
                          Recommended by:
                          david78209

                          link (PDF)

                          Although the court shied away from expressing any final opinion on the question, it nonetheless seemed to reject the conventional argument, noting that "[r]atification purporting to cabin a treaty as non-self-executing nonetheless provides jurisdiction to the United States courts to hear cases premised on its violation," even though such a treaty "does not provide a cause of action".

                          This specifically involves the CAT, and a Habeas claim.  The court ruled in favor of the plaintiff based on the CAT.

                          In general, all treaties are controlling:

                          All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a U. S. court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that--as long as the treaty is consistent with the Bill of Rights--the President could not constitutionally ignore or contravene it.

                          Since there exists no conflicting legislation, the CAT is controlling even though it's non-self-executing.

                          Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                          by skrekk on Sun Jan 25, 2009 at 09:18:42 PM PST

                          [ Parent ]

                  •  That's where it gets tricky... (1+ / 0-)
                    Recommended by:
                    david78209

                    what the US says to the Committee is one thing, and there might not be any penalties associated with that offense; apparently we lied.  But in the first block quote, "acquiescence of a public official" is an offense under the CAT, and conspiracy to commit torture is a federal crime.

                    Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                    by skrekk on Sun Jan 25, 2009 at 08:54:43 PM PST

                    [ Parent ]

  •  Decision makers (2+ / 0-)
    Recommended by:
    grrr, Amber6541

    can "shop" for lawyers just like lawyers "shop" for judges.  They're all culpable in my book.

  •  Is anyone here in Yoo's class, or know of anyone (1+ / 0-)
    Recommended by:
    Amber6541

    who is?

    GOP = Godless opposition party We Hassle to make America a Vassal (state)

    by Shhs on Sun Jan 25, 2009 at 04:56:57 PM PST

  •  That movie, "Brazil" (2+ / 0-)
    Recommended by:
    cotterperson, Rogneid

    With Michael Palin. In it, the torturers wear these weird Asian masks, kind of round and puffy. Yoo's face always reminds me of those masks - expressionless and cruel. To Yoo, the agony of a tortured captive, innocent or guilty, is something very abstract and distant.

    I'd very much like to see a flash of fear cross his plump visage.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Sun Jan 25, 2009 at 05:00:10 PM PST

  •  Look if the question is will Yoo (3+ / 0-)
    Recommended by:
    cotterperson, david78209, Rogneid

    (assuming there are trials/investigations) be bought b4 a grand jury and indicted.  I would say yes.  Now will that indicted be successful, well that is a matter for the courts to decide.

    Whether or not a lawyer, who is working for the executive branch, can be indicted is something the Supreme Court might have to answer.

    GOP = Godless opposition party We Hassle to make America a Vassal (state)

    by Shhs on Sun Jan 25, 2009 at 05:00:19 PM PST

    •  You're simply not in the reality-based world (5+ / 0-)

      if you think he'll be indicted.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Sun Jan 25, 2009 at 05:03:23 PM PST

      [ Parent ]

      •  I think it would be a long process (0+ / 0-)

        I said "assuming there are trials/investigations."  So my answer was based on that assumption.  There are a lot of legal questions that aren't clear.  

        GOP = Godless opposition party We Hassle to make America a Vassal (state)

        by Shhs on Sun Jan 25, 2009 at 05:05:32 PM PST

        [ Parent ]

    •  What, pray tell, crime can he be indicted for? (5+ / 0-)

      He can't be indicted for torture, because he didn't do it, and he had no power to authorize it.  He couldn't tell the intelligence agents, go ahead and torture Khald Sheik M.  Even if he had called them up and said to torture the guy, they wouldn't have done it because he had no authortity to tell them what to do.  He gave legal advice to Bush.  Bush takes that legal advice into account in making his decision.  

      As far as I know, you can't be indicted for giving very very very bad legal advice.  Sued for malpratice, yes.  But I can't figure out what crime you would be indicted for.  

      •  I said assuming that there are trials (0+ / 0-)

        of Bush, Rumsfield.... and who is called upon to testify in-front of a grand jury.  Hell he could lie under oath.  But again, this is based on a hypothetical situation.  

        GOP = Godless opposition party We Hassle to make America a Vassal (state)

        by Shhs on Sun Jan 25, 2009 at 05:09:06 PM PST

        [ Parent ]

      •  If Yoo committed a crime (which none of us) (0+ / 0-)

        can really say he did or he did not) again I said:Whether or not a lawyer, who is working for the executive branch, can be indicted is something the Supreme Court might have to answer.

        GOP = Godless opposition party We Hassle to make America a Vassal (state)

        by Shhs on Sun Jan 25, 2009 at 05:10:38 PM PST

        [ Parent ]

        •  Nope, the law is already pretty clear (5+ / 0-)

          A lawyer who advises a client to that it's ok to do something that later turns out to be a crime is not guilty of the crime himself.  No prosector would indict on something like that -- the prosector would be sanctioned for trying to bring that kind of indictment.  

          •  What about a lawyer who advises his client that (1+ / 0-)
            Recommended by:
            cotterperson

            it is okay to commit a crime, even thought the lawyer knows that it is a crime.

            GOP = Godless opposition party We Hassle to make America a Vassal (state)

            by Shhs on Sun Jan 25, 2009 at 05:22:44 PM PST

            [ Parent ]

          •  Not in this case. This is a treaty obligation (3+ / 0-)
            Recommended by:
            cotterperson, Nightprowlkitty, Shhs

            (ie, the supreme law of the land).  He's guilty of advice which approved torture, and knowledge that torture was being used.  He's fully liable under the CAT.

            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

            by skrekk on Sun Jan 25, 2009 at 05:28:36 PM PST

            [ Parent ]

            •  Nope, read your own quote (3+ / 0-)
              Recommended by:
              VClib, JSC ltd, stella0710

              it only applies to somebody who can authorize or instigate torture in their official capacity.  Yoo could not do either.  He could have called everybody on earth and ordered them to torture Khalid Sheik M., he could have sent them telegrams, he could have gone in person and ordered them to waterboard the guy, and they would not have done it.  Period.  Because he had no authority to tell them to.  Just like he had no authority to stop it.  If he had told Bush it was illegal, and Bush ordered it anyway, nothing Yoo said or did could have stopped that totuture.  

              Read that provision in its entirety.  People who cannot authorize or instigate torture -- and that means, under the law, you have the legal authority to do that -- cannot be guilty under that provision.  

              •  IANAL, but Philippe Sands is - he specializes (5+ / 0-)

                in international law.  His opinion is that Yoo is liable under the treaty for the reasons I've stated.  Scott Horton is of the same opinion:

                Consequently, the United States, acting on its own, convened a separate Nuremberg tribunal to try lawyers, judges, and legal policymakers. In doing so, it established the principle that policymakers who overrode the mandatory prohibitions of international law against harming prisoners in wartime could be prosecuted as war criminals, no matter how many internal memos they had written to the contrary.

                Yoo authored the opinion which authorized torture.  And, as far as we know, he did nothing to stop torture from being practiced even though he had the whistle-blowers statute as well as the press as possible options.

                Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                by skrekk on Sun Jan 25, 2009 at 06:12:04 PM PST

                [ Parent ]

              •  Read article 4: (2+ / 0-)
                Recommended by:
                Nightprowlkitty, daveinojai

                The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

                Unless you're going to argue that authoring the legal opinion authorizing torture doesn't constitute complicity in torture, you lose.

                Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

                by skrekk on Sun Jan 25, 2009 at 06:33:07 PM PST

                [ Parent ]

              •  Coffeetalk (2+ / 0-)
                Recommended by:
                Shhs, daveinojai

                I fully agree with you that giving legal advice does not make an attorney criminally liable in the context of US domestic law. What do you think of the notion that Yoo might be found liable in the terms under which the Nuremberg trials found Nazi lawyers liable? That would seem to be a somewhat different argument.

                •  That's international law, You'd have to have an (1+ / 0-)
                  Recommended by:
                  VClib

                  international court -- not A.G. Holder, not a U.S. Court, not a U.S. prosecutor -- brng that kind of a charge, and he'd have to be tried outside of the U.S. at the Hague or something.  Those kinds of things only have happened, as far as I know, when a country has lost a war, and the losers are tried by an international tribunal, like Nuremburg.

                  Interesting, but the chances of it here are less than zero.  

                  •  If that can only (0+ / 0-)

                    be prosecuted in an international court it would seem that the ICC would be the court of jurisdiction. As I recall we didn't sign up for that.

                    I share your view that by and large war crimes are something of which the victor convicts the vanquished.

      •  Read the Convention Against Torture. (3+ / 0-)
        Recommended by:
        cotterperson, Nightprowlkitty, Shhs

        Woo is fully liable (as would be Pelosi and others who were aware of torture, yet did nothing to stop it):

        Article 1.1: ...when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

        Article 2.3: An order from a superior officer or a public authority may not be invoked as a justification of torture.

        Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

        by skrekk on Sun Jan 25, 2009 at 05:25:37 PM PST

        [ Parent ]

        •  But does that only apply to (0+ / 0-)

          courts outside the U.S. ?

          GOP = Godless opposition party We Hassle to make America a Vassal (state)

          by Shhs on Sun Jan 25, 2009 at 05:30:12 PM PST

          [ Parent ]

          •  In the US - that's part of our treaty commitment. (2+ / 0-)
            Recommended by:
            cotterperson, Nightprowlkitty

            There's lot's of stuff in the treaty which mandates that domestic law must conform to the treaty.

            What I wonder about is this clause:

            Article 20.1: If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

            The international community has known for many years now that the US has been torturing suspects.  What has the committee done about it?  We're also required to submit periodic reports asserting that we don't torture.  Did we lie?

            Dubya's legacy: 25 million really pissed Iraqis...50 million shoes

            by skrekk on Sun Jan 25, 2009 at 05:54:55 PM PST

            [ Parent ]

        •  Yoo had no authority to order it or stop it (3+ / 0-)
          Recommended by:
          VClib, JSC ltd, stella0710

          If Yoo had called up the guys torturing Khalid Sheik M. and said, hey guys, stop torturing him, would they have done it? NO.  He is not the one with the authority to tell them either to (1) do the torture or (2) stop the toruture.  The people who had the authority to order torture are the ones guilty of torture.  If Yoo had called up the intelligence guys and said, go ahead and waterboard Khalid Sheik M., would they have done it?  No -- he is not their commander.  He has no authority to tell them to do it.  He gave legal advice to their commander.  That is not the same as having the authority to order, or to stop, torture.  

        •  So he violates the CAT. (1+ / 0-)
          Recommended by:
          coffeetalk

          That doesn't get us very far w/o domestic enabling law.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Sun Jan 25, 2009 at 06:08:43 PM PST

          [ Parent ]

  •  Come on now (4+ / 0-)

    He hasn't even been sanctioned by other lawyers.  How do you think Yoo is going to be convicted of anything?

    -5.38/-3.74 We're currently in a sig interregnum. A siggie vacante, as it were.

    by Rich in PA on Sun Jan 25, 2009 at 05:01:41 PM PST

  •  Since I voted and paid my taxes (0+ / 0-)

    as a citizen of the country that supported this regime, I suppose I'm up for war crimes too.

    Bummer.

    What about civil liability?

  •  And what of Jay Bybee? (4+ / 0-)
    Recommended by:
    david78209, skrekk, Lujane, daveinojai

    He now sits in judgment of others on the U.S. Court of Appeals for the Ninth Circuit on a life-time appointment.  

    (He was confirmed 74-19 in the Senate, with Reid, Leahy, Daschle, Dodd, Lieberman, Rockefeller, and Schumer among those voting for him; Boxer, Byrd, Clinton, Durbin, Feingold, Kennedy, Levin, and Wyden among those voting against him; and Biden, Edwards, and Kerry not voting.)

    If anybody here doesn't recognize the name, it was during Bybee's tenure as the assistant attorney general in charge of the Justice Department's Office of Legal Counsel that the torture memo authored primarily by Bybee's deputy John Yoo and often referred to as the Bybee Memo was issued.  It defined "torture" as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

    "Injustice wears ever the same harsh face wherever it shows itself." - Ralph Ellison

    by KateCrashes on Sun Jan 25, 2009 at 06:08:56 PM PST

    •  Ship him off to The Hague, then, along with Yoo (0+ / 0-)

      And then we can have the shame of knowing he continues to collect his salary as a federal judge while he's on trial for war crimes.  Heck, he could probably still draw his salary if he were convicted and in jail over there, if he refused to resign.  Wouldn't his salary continue unless he was impeached and convicted?

      We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

      by david78209 on Sun Jan 25, 2009 at 07:35:08 PM PST

      [ Parent ]

      •  Small problem (2+ / 0-)
        Recommended by:
        david78209, VClib

        The US declined to ratify the ICC treaty.

        •  We should ratify it now (0+ / 0-)

          It still might not apply to Yoo because I think it has something about applying only in countries that have ratified it after they've ratified it.

          But,
          Wasn't the doctrine of 'universal jurisdiction' developed to make it possible to prosecute pirates arrested on the high seas, getting around similar jurisdictional barriers?  I wouldn't be surprised to see most of the world apply the same or a similar doctrine to war crimes and crimes against humanity.  

          Even if it's not illegal for someone to advise someone else to commit a crime,...
          Even if it's not illegal for a lawyer to advise someone else to commit a crime,...
          It darn well ought to be illegal, and prosecutable, for a lawyer to advise someone to commit a war crime or a crime against humanity.  If it was illegal at Nuremberg in 1947 or 1948, and led to German lawyers going to prisoners for 10 years, it ought to be illegal in the United States in 2009.
          What's the difference?  Or were we just pulling rules out of thin air in Nuremberg, only to let those rules disappear back into thin air now?

          We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

          by david78209 on Sun Jan 25, 2009 at 07:50:20 PM PST

          [ Parent ]

          •  I think that it is (1+ / 0-)
            Recommended by:
            david78209

            possible that the Obama admin will be more inclined to revive the ICC issue. I certainly think that the US should ratify it.

            There are many things that the law should be that it is not. However, you can only prosecute someone for what the law is.

  •  Are these guys lawyers? (0+ / 0-)

    Are are they more accurately termed consiglieri?

  •  hey coffeetalk and richard lyon (2+ / 0-)
    Recommended by:
    Nightprowlkitty, FarWestGirl

    it is a federal offense to advocate breaking the law.

    when the bush admin was seeking legal standing to torture, any good lawyer would have known right then, that in other words, the executive was looking for someone to advocate something clearly illegal.

    yoo, addington, and others are guilty. they just never thought they'd be caught above ground the way they have in the sea-chage of the american political landscape.

    to advocate breaking the law is illegal, you two seem to advocate that this situation is murky. it's not.

    working consciousness to raise consciousness

    by john de herrera on Sun Jan 25, 2009 at 06:38:27 PM PST

  •  about your poll questions (1+ / 0-)
    Recommended by:
    Nightprowlkitty

    No lawyer is ever criminally liable for legal advice offered in good faith.

    Who says that the advice was offered "in good faith"?

    Looking for intelligent energy policy alternatives? Try here.

    by alizard on Sun Jan 25, 2009 at 06:47:23 PM PST

  •  Gosh, I wish this diary would make the rec list (1+ / 0-)
    Recommended by:
    Shhs

    It's the best discussion I've seen on this very, very important point.  It's a discussion I've been wanting to take part in for a good five years.

    We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

    by david78209 on Sun Jan 25, 2009 at 07:52:52 PM PST

  •  Well, after 200+ comments, it looks like (1+ / 0-)
    Recommended by:
    coffeetalk

    the lawyers among us -- coffeetalk and Richard Lyon -- have got the better of the argument.  Maybe Yoo is not liable after all.  However, I make note of two qualifications to this conclusion:

    1. nightprowlkitty rightly points out that the issue is one that cannot be finally settled until all the facts are known, and shedding the light of day on all that went on in secrecy is maybe the most important thing..... and it might take a legal or quasi-legal forum in order to get all the facts on the table.
    1.  the very large majority of those who took this poll would like to see Yoo and Co. held responsible, whether the law provides for it or not!

    Much would seem to depend on Erik Holder's integrity and judgment at this point.

    Good night all, and thanks for a most interesting and enlightening discussion.

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