John Yoo’s Disbarable Incompetence

John Yoo’s Disbarable Incompetence

John Yoo’s Pennsylvania bar number is 69500. Recently some bloggers have urged that Yoo be deprived of that number and disbarred, for having been the ultimate legal theorist behind denial of POW status to suspected terrorist detainees, warrantless domestic surveillance, and interrogations under torture. As Jack Goldsmith, former head of the Office of Legal Counsel (“OLC”), has observed: “[N]ever in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11.” And all indications are that when these policies were adopted, Yoo, formerly a deputy in the OLC, was the most extraordinarily influential lawyer of the lot. The bloggers are right; the Pennsylvania Office of Disciplinary Counsel should pursue disbarment, though more for the manner of Yoo’s advice than the contents thereof.

First some background. The OLC is a 22-lawyer office that advises the President and the Attorney General, especially concerning legal issues pertaining to the presidency. Much of the advice that Office provides will inevitably concern areas in which there are no judicially tested or legislatively created rules. In the absence of external authority, particularly judicial authority, the Opinions issued by the Office have binding force throughout the Executive, and earlier Opinions are cited as stare decisis for later ones. The OLC thereby wields something akin to the power of a Supreme Court within the Executive.

Small wonder, then, that the Office has generally (though not without exception) tended to be sober and cautious in its advice. Legal Counsel have typically viewed themselves as being not merely advisors to the President, but fiduciaries of the public interest in seeing that the President “takes care that the laws be faithfully executed,” a constitutional requirement. The role of presidential advisor incentivizes approving presidential plans, the role of public fiduciary sometimes demands saying “no” to the President. These frequently competing roles call for maturity, balance, and judgment in all of the Assistant Attorneys General who work at OLC.

What OLC got instead, when Bush 43 arrived, was John Yoo. A specialist in matters of presidential war powers, Yoo served under Edward Whelan (formerly a communications lawyer) and then Jay Bybee (whose constitutional expertise was focused elsewhere), and so, after 9/11, he became in effect the senior expert within the Office on the way the Executive Branch could lawfully respond to the terrorists. And he deployed that expertise in writing memo after memo on the subject.

There is no question about the man’s brilliance. Not only was he well-groomed (summa at Harvard, J.D. at Yale, clerkship with Justice Thomas, general counselship with the Senate Judiciary Committee), but one has only to read his writings to recognize a formidable legal mind. They are dense with authority, beautifully organized, and well-phrased.

At the same time, though, they are manifestly the products of a mentality innocent of maturity, balance, or judgment. His basic mode of operation is to search for loopholes, largely located in the unreviewed fiat of earlier OLC Opinions. Having loopholed his way to a dubious conclusion, he proclaims it without fear or doubt. In plain English, he seems unable to recognize when his views fail the smell test. Nor is he bashful about stating very large and questionable principles that are hardly necessary to reaching the narrow points at issue in his memoranda.

But don’t take my word for it. Hear instead Jack Goldsmith, who succeeded Bybee as the head of the Office, and to whom fell the delicate but necessary task of repudiating and withdrawing Yoo’s Opinions on torture. It is now revealed that Yoo was the co-author of the August 1, 2002 OLC memo on torture nominally written by Bybee (discussed in my earlier column, Playbook, 8/26/05) , and was the prime author of a just-released March 14, 2003 memo that expanded much of the earlier memo’s analysis and in essence opined that in interrogating suspected Muslim terrorists, the President was subject to no legal constraints whatsoever.

In his memoir, The Terror Presidency (2007), Goldsmith had this to say: the memos showed an “unusual lack of care and sobriety in their legal analysis.” For example, Yoo advised that “Any effort by Congress to regulation the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” Goldsmith’s comment: “This extreme conclusion has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law. And the conclusion’s significance sweeps far beyond the interrogation opinion or the torture statute. It implies that many other federal laws that limit interrogation … are also unconstitutional, a conclusion that would have surprised the many prior presidents who signed or ratified those laws, or complied with them during wartime.” He continues that the opinion “rested on cursory and one-sided legal arguments,” and were lacking in “the tenor of detachment and caution that usually characterizes OLC work.”

These are not the words of a wild-eyed liberal; they come from a Republican who had served as a counsel in the Defense Department and was championed by Yoo himself to fill the role of head of OLC after Yoo.

It is too early, and the proof still too sketchy, to draw a line direct enough between Yoo’s advice and the Guantanamo and Abu Ghraib atrocities to justify a Nuremberg-style trial. Nor, in my view, is it appropriate to breach academic freedom and oust Yoo from his professorship at Berkeley. But there is no reason we lawyers have to put up with having him in our profession. We have standards to uphold.

Pennsylvania follows the Model Rules of Professional Conduct. The very first of those, Rule 1.1, requires competence. It calls for “the legal knowledge [and] skill … reasonably necessary for the representation.” Yoo’s advice may have been erudite, but it was so lacking in judgment and so fraught with grievous potential that it was instantly reversed as soon as there was a grownup in the room. His juvenile fantasies of overthrowing conventional understandings of the Constitution with his memos betray a mind unfit for the practice. This is not a political judgment, just a professional one.

There is certainly ample precedent for disbarment for incompetence. Disbarable incompetence generally proves to be of a less political nature, but there is nothing inherent in the rule which immunizes incompetence when it is exercised through advice with a political aspect. Nor is there any shelter in the language of Rule 3.1, which sanctions “a good faith argument for an extension, modification or reversal of existing law.” These words understandably pertain to a lawyer’s role as advocate, not as advisor.

Moreover, we lawyers swear to uphold the Constitution, including the portion of the Supremacy Clause which makes our treaties the law of the land. Yoo failed to live up to his oath when he advised that our treaties, which have interdicted torture and commanded humane treatment of our Muslim prisoners, did not mean what they said, and/or were somehow subordinate to the President’s warmaking powers. No doubt he believed his advice, so I am not assailing his integrity. But only a lawyer exhibiting an appalling failure to appreciate the structure and meaning of our legal system could render such advice. One can surely undermine our laws negligently or recklessly; it is not a shortcoming that on its face requires specific intent. Yoo doubtless intended to keep his oath, but he was not competent enough to do so.

Few lawyers will ever know as much law as John Yoo does. But I’d like to think that few lawyers are such dangerous fools. I assume that some of the calls for disbarment are already under confidential consideration by the Pennsylvania Office of Disciplinary Counsel. For the protection of the public and our profession’s reputation, the number 69500 should be retired.