Investigating John Yoo.

The law, lawyers, and the court.
Dec. 16 2008 1:01 PM

Lawyers Aren't Special

Why it's legitimate to investigate the Bush lawyers who may have approved war crimes.

John Yoo. Click image to expand.
Former Department of Justice official John Yoo 

John Yoo and other lawyers who were involved in developing the Bush administration's interrogation policies have been roundly criticized for the shoddy and controversial nature of their legal advice. And yet even some of the critics have rejected the notion that Yoo and his former colleagues should be investigated for their role in the commission of torture and other war crimes. Writing recently in the Washington Post, Jack Goldsmith, the lawyer (and now law professor) who repudiated much of Yoo's work at the Office of the Legal Counsel, dismissed calls for further probes for fear that government lawyers would become excessively cautious in offering legal advice. The country is better served by moving on, Goldsmith suggested.

Lawyers are often asked to offer their views on complicated questions with significant real-world consequences, and the idea that offering the wrong answer could implicate an attorney in criminal wrongdoing is a frightening prospect to many in the profession. It is not surprising, therefore, that lawyers are reluctant to condemn fellow lawyers on the basis of the advice that they give.

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But attorneys are hardly the only ones who must make difficult decisions in times of war. American soldiers, under the Uniform Code of Military Justice, are duty-bound to obey only lawful orders. Indeed, since the Nuremberg trials, it has been a fundamental precept of international law that soldiers must disobey orders to commit war crimes. If soldiers are supposed to differentiate between lawful and unlawful orders, why should lawyers, who are trained to know the law, have the privilege of never being held accountable if they advise unlawful conduct?

That stance seems especially unwarranted since lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues. In fact, lawyers are mandated to at least consider opposing points of view. They may, moreover, refer to moral and political considerations when advising clients, not purely legal ones. And yet John Yoo and other administration attorneys wrote one-sided arguments about crucial aspects of the coercive interrogation policy. It is perfectly legitimate to ask, given the controversial nature of their conclusions and the importance of their work, why they crafted their arguments in the way that they did.

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. (A more complete discussion of these cases is available here.)

The crimes with which Yoo and others are alleged to have been involved are clearly not of the magnitude of those in wartime Germany. Another key difference between the convicted German attorneys and the Bush lawyers is that the former specifically authorized the commission of war crimes. Nevertheless, British jurist Philippe Sands has plausibly alleged that Yoo and others went beyond advising and specifically approved certain interrogation tactics for use at Guantanamo Bay. Without knowing the full details of the interrogation program, it seems premature to conclude, as Attorney General Michael Mukasey apparently has, that Yoo and others were simply attempting to answer difficult questions about interrogation policy.

We have domestic cases on the books that allow for an attorney to be found criminally liable solely for the legal advice he offers to a client. In 1919, in Firpo v. United States, the United States Court of Appeals for the 2nd Circuit instructed: "To advise a client to commit an act which is a crime makes the lawyer an accomplice and at common law he would be an accessory." Georgetown law professor David Luban has noted an analogous recent precedent from the 7th Circuit, in which an attorney's disruptive litigation tactics implicated him in criminal wrongdoing.

Firpo involved an attorney who was charged as an accomplice in the desertion of a young soldier. The lawyer had advised the soldier to leave New York to live with relatives while he worked to secure the soldier's release on the grounds that the soldier had been too young to enlist. The 2nd Circuit ultimately reversed the attorney's conviction because the prosecution had not proved that the attorney was aware that the soldier was already a deserter when he advised the soldier to flee—the lawyer's knowledge mattered for criminal culpability. But the court as a whole agreed that the key consideration was whether the attorney's advice was intended to assist the soldier in violating the law. It is certainly possible to see the work of Yoo and others in this light—as legal cover for interrogators.

Goldsmith worries that if they fear criminal sanction, government lawyers will shy away from offering potentially controversial legal advice when novel issues arise. But that would misread the role of a government lawyer. Nor is the fear of political division sufficient reason to dismiss the idea of an investigation as counterproductive. If allegations of torture and other crimes against Yoo and other lawyers are handled soberly and responsibly, there is the possibility that the United States will not only be able to heal internal divisions regarding the war on terror but will earn much-needed good will from abroad. Lawyers should be leading the call for a full investigation, not seeking amnesty for their peers before any meaningful attempt to determine the scope of their misconduct.

Milan Markovic was formerly a law clerk in the Chambers of the International Criminal Court in the Hague, Netherlands.

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