I'd like to thank David Swanson for bringing this story to my attention in his diary.
It seems that the Federal Court in San Francisco has accepted that John Yoo can be called before the court to testify on the grounds that his memoranda justifying torture techniques using non-conventional interpretations of the law might make him complicit in the acts of torture and the abroagation of constitutional rights of detainees that followed.
I think this is an extremely dangerous precedent to set, and as much as I abhore torture and find John Yoo to be a man lacking in virtue, I do not think he can be held accountable as the lawyer upon whom the Bush Administration came to depend.
Let's begin with shared assumptions. Torture is both morally repugnant and illegal, and what was allowed according to Yoo's memoranda was torture and is now held to be illegal. On that much I think most of us would agree.
I am somewhat on the fence in terms of pursuing prosecutions for torture - I am wary of the appearance politically motivated legal actions being used by new administrations to punish their predecessors from the other party. Whilst I agree there is a case to answer, and that Executive officers of the government and the military who acted upon orders to torture might have to be held accountable, I still retain some nervousness about the appearance - however, let us also assume that I support prosecution of government and military officials who participated in or facilitated torture.
John Yoo's case is different. He did not order torture, he did not enact torture, and is not accused of such. He is accused of complicity in torture because he wrote a legal opinion for his clients that stated that he believed 'enhanced interrogation techniques' to be outside of the definition of torture and therefore legal.
I find this interpretation bizarre, wrongheaded, counter-intuitive, and fringeworthy - however, I cannot accept that a lawyer writing an opinion for his client should be responsible for the criminal behaviour that the client undertakes as a result.
For what the lawyer does as a person, he is accountable to the law as are we all. But in offering legal opinion, the lawyer is solely accountable to his client. If the opinion is mad, bad or wrong and the client suffers as a result (finds themselves prosecuted for something they were told was ok) then the client has a justifiable case for suing the lawyer - for breach of care, negligence, incompetance etc. It may well be that in failing a client so egregiously that the Bar might revoke the lawyer's licence to practice.
However, if you make any lawyer who offers a non-standard opinion to his client legally responsible for the acts that the client then undertakes, you completely undermine the attorney-client relationship. A lawyer must be free to give (in his view) the best and h=most honest legal advice to his client that he can - his sole duty of care is to his client. Our entire system of legal representation is predicated on the idea that all are entitled to legal representation, and that such an advocate should provide advice solely in the best interests of the client: it would be a travesty if lawyers were giving different advice, modifying it from their true legal opinion, because they cared not only for the clients interests, but for covering themselves from legal retribution.
John Yoo, I suspect, sincerely believes that he was correct in his interpretation of the law. If he was not, and his clients suffer, they have a case for malpractice. But those who suffered at the hands of his clients do not.
He offered a highly unconventional interpretation of the law, and as long as his client does not feel let down by his duty of care, this must be protected. Lawyers must be free to give their honest opinion, even if it is outside of the mainstream public opinion - to persecute lawyers for their legal opinions would be a dangerous precedent.
Imagine this hypothetical: in some dystopic future, a far-right Republican administration (with huge support from a country that has grown massively pro-life) judges that partial-birth abortion is morally repugnant and a crass violation of the Constitutional rights of the unborn. Clearly, they come after the doctors and medical staff, as well as Naral and Planned Parenthood. That would be horrific, but probably legal under new laws and clarifications introduced.
Imagine though, that they considered legal opinions used to defend NARAL to be 'morally misguided' and 'so far outside of the mainstream opinion taht they were peverse'. Would we support the prosecution of the lawyers for complicity in such a case? Would that not due undue harm to the principle that a defendent (NARAL) should have the best legal defence possible?
Lawyers writing opinions, like academics writing papers, must be free to do their jobs irrespective of overriding public opinion and democratic government. They must remain solely accountable to their clients (however repugnant the client or the crime) because that is how we retain faith in the legal system. We need to know that prosecutions of the guilty succeed, not because counsel was hobbled or intimidated into accepting mainstream opinion, but because justice prevailed over the best arguments that could possibly be made on that client's behalf.
If I were one of the defendents in the coming trials for torture, who acted upon the advice of John Yoo, I would consider suing for a poor excuse for a legal interpretation and for leaving me open to prosecution for what I was advised was legal. Those defendents have a case. But those affected by torture, and those who continue to oppose it and prosecute it cannot and must not prosecute John Yoo for his legal opinions.
From 'A Man for All Seasons':
WILLIAM ROPER: So, now you give the Devil the benefit of law!
SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!