I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Just in case you thought the final OPR report exculpated John Yoo

I’ve not posted about the Justice Department’s Office of Professional Responsibility report about whether Yoo and Bybee should be referred for bar discipline for their authorship of the Bush era “torture memos.”  I’ve not posted in part because I find the whole topic so discouraging.

The final report finds that You provided legal advice that was incompetent and reflected what he wanted to be true instead of what the relevant legal authority might suggest.  Yet this has been viewed by many as somehow acquitting him.  I’m going to quote this from the final report, the one that decided not to refer Yoo for bar discipline:

For all of the above reasons, I am not prepared to conclude that the circumstantial evidence much of which is contradicted by the witness testimony regarding Yoo’s efforts establishes by a preponderance of the evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel.   While I have declined to adopt OPR’s finding of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to adopt opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.

So–It’s a “close question” whether Yoo’s advice was “intentionally or recklessly” misleading (I’m going to interject here that given the “close question” I cannot understand why the “close question” is decided against a referral to a bar disciplinary panel).

There are several essential takeaways from the OPR report:  First, that the legal advice in support of torture was incompetent and unprofessional; second, that the only question in the Justice Department’s analysis was whether this called for a discipline referral; third, that the legal advice really was that the president is not bound by law during wartime.

James Fallows writes that the documents released last week are essential reading for our era.  Anderson has a couple of good posts up on all this.  Based on some other things I’ve read, I think there are good reasons to doubt Yoo believed the advice he gave.

The folks writing on Legal Ethics Forum are having a lot to say about the OPR reports and responses. Rob Vischer argues Yoo is wrong about part of his response (“Of course political officials should be worried about preventing another terrorist attack, but should the lawyers advising those officials allow that worry to affect the advice they provide on whether a proposed course of conduct is legal?  Isn’t this exactly when we want lawyers to stay level-headed and not wholly subject to the same worries driving the political officials?  Elsewhere in the response, Yoo argues that if the “OLC was unduly conservative in its legal analysis the result quite literally could be the loss of thousands of lives.” Should the evaluation of the legal advice I give turn on the stakes of the matter on which I’m advising?”).  Another post on the same forum argues that the OPR is wrong to let Yoo off the hook on the reasoning that, while objectively wrong, he subjectively believed what he was saying– “Yes, it’s true that [Disciplinary Rule] 2.1 doesn’t say much except that lawyers must provide candid, independent advice.  But why is it hard to apply that rule to a lawyer who sincerely, but objectively wrongly, believes her advice to be correct?  We apply objective standards in the rules all the time.”  There’s another post providing a huge catalog of links on the subject.

Finally, beyond the legalities, there’s this:  General Petraeus on Meet the Press, discussing torture: “I have always been on the record, in fact, since 2003, with the concept of living our values,” Petraeus responded. “And I think that whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside.”  He went on:  “We decided early on in the 101st Airborne Division we’re just going to — look, we just said we’d decide to obey the Geneva Convention, to move forward with that. … We have worked very hard over the years, indeed, to ensure that elements like the International Committee of the Red Cross and others who see the conduct of our detainee operations and so forth approve of them. Because in the cases where that is not true, we end up paying a price for it ultimately.”

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