Justice Souter has been promoting the importance of civics, truly concerned that there is a basic lack of understanding about simple concepts involving our means of government. This is a reasonable fear -- repeatedly, a debate over some legal or political matter brings to bear the fact that basic concepts (such as judicial review or whatever) are misunderstood. The below is in response to one of the Slate articles regarding the OPR report previously cited.
After more than a year's delay, the Department of Justice released the Office of Professional Responsibility's report on whether government lawyers who wrote two notorious torture memos violated professional ethics.
There appears to be some confusion on what is at stake here. Some are under the impression that people (mainly the "left" or "far left," apparently) want to put people in jail for writing legal opinions because we don't agree with them.
The immediate issue is a referral to a bar association for sanctions, which might include stripping of a law license. This happens from time to time, including when lawyers are found to have violated their professional ethical requirements, such as providing particularly shoddy work product. The test is not a dispute over the basic policy promoted by the lawyers in question or dislike of their clients. Some lawyers have a higher standard to meet:
The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."
-- Dawn Johnsen, nominated as head of the Office of Legal Counsel
As Jack Cerf., a veteran of the office, explained, the OLC is not the same thing as the President's personal lawyer. OLC lawyers have a special obligation, which means the actions of Yoo et. al. rankles that much more. Nonetheless, some are under the impression that slanted spin jobs that provide a shoddy description of the law, advice that is particularly nefarious since it would be used to determine the proper scope of activities such as waterboarding, was Yoo's "job."
Though it is not the immediate issue at hand, some argue a step further. They argue that there is a reasonable claim to be made that professional ethics alone were not violated here. In fact, they argue that the lawyers here (including one who is now a federal appellate judge) should be fully investigated as possible criminals. This too has precedent:
For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.
Some suggest Altstoetter is not necessarily the best case to use, but I cite a specific principle here, and it works on that level. One that also highlights that "existential threats" do not justify violations of the law (or professional responsibility), if anything, we must be on guard more in such cases since they are when the rules don't seem so important any more. This is a harder case to make, though the report helps to make it by filling in some details of how things occurred, while others have also done yeoman work in this department. This includes evidence that Yoo and others are guilty of conspiracy.
But, even if a "beyond a reasonable doubt" standard might not be met, those who consider Yoo et. al. to be "criminals" have something like this in mind. And, like those who think O.J. is a murderer, they can colloquially so argue, even if they will avoid a court of law.
A final basic misunderstanding respects Yoo's tenure. See, e.g., here. Basically, it is argued by some that it is a threat of academic freedom to strip him of tenure, or even, to have a full investigation over the matter. Cynics would say the likely result would be something like the report in question, but even that was productive in various ways. Anyway, the investigation would not be based on simply doing legal work for the Bush Administration. It would have to determine that while doing so, his shoddy work or even possible criminal behavior makes him an unfit teacher.
The matter at hand is not just Yoo or Bybee. It is understanding basic principles, principles sadly appear not to be understood or accepted.
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PS Some cite possible wrongdoing of the Obama Administration, including use of drone attacks, some that might target U.S. citizens. Not bringing Bush Administration officials to task only furthers such possibly nefarious activities. And, many critics of Bush continue to criticize Obama in such areas. The alleged claim of hypocrisy doesn't stick.