The Resurrection of John Yoo


Imagine you are an attorney in a law firm and one day your boss comes in and asks you to research an urgent matter for which he needs an immediate answer.  Over the next few weeks, you pour over case and statutory law, and in the end render a legal brief that, in your opinion, represents United States law as it stands today. 

 Unfortunately, the case for which the legal brief was initially requested is lost at trial.  The clients are unhappy, but understand that this is the way things sometimes go in our courts of justice. 

Several years later, the law firm decides that it needs to buttress its reputation for legal exactitude, and while going through the files comes across your brief.  Certain that the legal brief  you had written was the ultimate cause of the lost trial and subsequent damage to the firm’s reputation, it decides to launch an internal investigation into your conduct, threatening you with censure, public disgrace and even disbarment.   And indeed, for the next several years your career is put under the microscope, as the firm systematically rips apart your life.  After years of investigation, however, management cannot find one thing in your conduct or even in the legal brief that was either unethical or in breach of professional standards.   You are told that you are free to leave  – as long as you clean up the mess left on the floor by your evisceration.    

If you think that is pretty harsh, then think of what the life of White House counsel John Yoo’s and Jay Bybee’s lives were like over the past few years.   In the latter years of the Bush administration and throughout the first year of  the Obama administration, both men were subjected to an intense investigation  which was focused on finding a culprit for the legal briefs used in authorizing what is popularly referred to today as  “CIA torture.” 

Fortunately, that ordeal is now over.   Five days ago the results of  an independent study led by Associate Deputy Attorney General David Margolis, revealed that the real malfeasance had taken place in the  the Department of Justice’s Office of Professional Responsibility which had investigated  the Office of Legal Counsel to which Yoo and Bybee once belonged.   Margolis found evidence of  bias, sloppy legal reasoning and unwarranted expectations leveled against Yoo and Bybee and dismissed the absurd claim that they had somehow broken the law by the mere act of offering their legal opinions. 

I am not going to presume to offer my own judgment on the credibility of Yoo’s or Bybee’s legal briefs. Perhaps they did make mistakes.  But the effect of  this witch-hunt must surely be to caution every would be legal advisor to any president, to hedge his or her advice and to caution the president against taking any action that could have a potentially negative political or moral impact. 

Yoo himself argues that setting the dogs loose upon the President’s advisers will only end up emasculating the commander-in -chief’s extensive powers to prosecute a vigorous war on the country’s enemies.  Thus:   

“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”

Since his liberation from the Office of Legal Counsel, Yoo has written a highly acclaimed and scholarly work on the necessity for a strong executive.  But others, more concerned with the torment of the country’s defenders, will continue to pound the drum of Bush era malfeasance in the hope that it will engender a  new form of ethics that will offer  kindness to the country’s enemies and extend solicitude to its prisoners. 

But if the United States is struck again, don’t expect any of these 60s-era nostrums to survive.  They will be as dead as the adminstration that sponsors them.

The trouble is, thousands of us might be as well.

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