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

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.

BlogRoll

“Mr. Yoo and Mr. Bybee were not acting as fair-minded analysts of the law but as facilitators of a scheme to evade it.”

The editorial page of the New York Times has apparently been thinking through its reaction to the recent OPR opinions as deliberately as I have (note the quote in the title). The lede sentence is haunting to me as a lawyer:

Is this really the state of ethics in the American legal profession? Government [...]

It all depends on who’s ox is gored: John Yoo and Youngstown

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) is the leading case on presidential power in wartime, and specifically on the president’s authority with regard to congressional power when the nation was at war.  Justice Black’s opinion frames the issue in those terms:

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. … The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.

The opinions (there was a majority opinion, a dissent, and five opinions concurring in the majority) grappled in a serious way with the scope of presidential power in wartime (there are extensive quotes from the opinions at the bottom of the post to illustrate this point).

One of the most remarkable things about John Yoo’s opinions about torture and presidential power that he wrote while at the Justice Department was that they did not bother to discuss, distinguish, or even mention Youngstown. Brad DeLong has lead a major part of the charge against John Yoo, by demanding the administration at Berkeley consider whether Yoo was fit to continue as a law professor.  DeLong argued that Yoo had so violated professional norms his tenure should be revoked; one point he has raised is about Yoo’s failure to even mention Youngstown in the torture memos.

Yoo’s memos concern presidential powers in a time of war. One famous precedent with which any lawyer would have to grapple is the Supreme Court’s decision in Youngstown, concerning President Truman’s seizure of the country’s steel mills to keep them rolling during the Korean War. The Supreme Court ruled his action unconstitutional. The Youngstown case set out the Supreme Court’s judgment as to how far the president’s inherent powers go in a wartime emergency and to what degree those powers are subject to congressional authority.

In his memos, however, Yoo never mentioned Youngstown—either to distinguish it as sufficiently different that the decision does not control, or to argue that it was wrongly decided and should be overturned. This, the lawyers say, is compelling evidence that Yoo was acting not so much as a lawyer but as a political hatchet man.

Last year, Yoo did see fit to mention Youngstown in a Wall Street Journal op-ed about whether the president had the power to ignore legislation– in that instance, federal wiretapping statutes.  He thought the Justice Department “absurd” to take the position that legislation like that limited presidential power, and jeered at citation to Youngstown– “Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes.”

Oh.

It’s about labor disputes.

Not about the scope of presidential power in wartime.

I think what we have here is equivalent to a con law professor telling us that Brown is an education law case about pupil assignments, and I’m reminded of Justice Holmes’s remark in “The Path of the Law” that the color of the hat one wears when signing a contract is not relevant to questions about the nature of the contract being signed.  It is untenable to say that the issue’s origin as a labor dispute– a threatened strike– means that the case did not deal with questions of presidential power in wartime.

So there it was, till yesterday.  Yesterday, John Yoo, through counsel (Miguel A. Estrada and Scott P. Martin of Gibson, Dunn &  Crutcher.  Folks may remember the two year battle over Estrada’s nomination as a circuit judge during the Bush adminsistration) filed a brief in a case where Yoo was sued by Jose Padilla for facilitating the torture of Padilla through writing those torture memos.  On pages 23 and 24 of the brief (which I am going to assume that Mr. Yoo, a lawyer, has read), there’s this about Youngstown:

The holding of that case, of course, is that by seizing steel mills, President Truman had impermissibly encroached onto congressional lawmaking authority. See id. at 588- 89. “The Founders of this Nation,” the Court held, “entrusted the law making power to the Congress alone in both good and bad times.” Id. at 589 (emphasis added).

What? No mention of labor law?  Just something about Presidential power as against Congressional enactments?  I think we can give Yoo and his lawyers two points here for mentioning the presidential versus congressional power issue, but what should we deduct for failing to mention the wartime context?

Continue reading It all depends on who’s ox is gored: John Yoo and Youngstown

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 [...]

Atty Gen. Holder names proseuctor for preliminary review of C.I.A. torture

Eric Holder has named John Durham as the special prosecutor to evaluate cases involving C.I.A. employees and prisoner abuse. As Talking Points memo notes, the initial news reports about this– that the preliminary investigation is limited to cases where the C.I.A. interrogations exceeded what was authorized by the torture memos– appears to have been [...]

Reading past the headline on the OPR report on what to do about the torture memo authors

I have to agree with the writer at Letter of Apology blog:

According to this WSJ piece by Evan Perez, DOJ’s Office of Professional Responsibility (”OPR”) is likely to call for state bar sanctions, rather than criminal prosecutions, against John Yoo and Jay Bybee, the former Office of Legal Counsel (”OLC”) attorneys who wrote [...]

Letter of Apology blog’s take on investigating the torture memos

In a post about John Bybee, the Letter of Apology blog notes that talk of impeachment is premature, but…

…if DOJ professionals can make a reasoned argument that certain Bush-era legal memos sought merely to cover obviously illegal activities, let the investigations begin. After all, we investigate (and sometimes even prosecute) lawyers for fraudulently [...]