Legal Ethics

Should Yoo Be Punished for Memos? Experts Disagree, DOJ Opposes Liability

Critics are calling for punishment of the Justice Department author of several memos backing harsh interrogation techniques and broad presidential powers. They raise the specter of prosecution, civil liability and ethics sanctions against John Yoo, now a law professor in California.

But Yoo is getting backing from current lawyers in the Justice Department, who argued against civil liability last Friday in a lawsuit by Jose Padilla, held for three years as an enemy combatant before being prosecuted and convicted for plotting terrorist acts. Padilla claims Yoo’s memos intentionally misstated the law and led to his torture.

The Recorder explained the administration’s stance this way: “Torture—illegal. Extended military detention—under review. Lawsuit against an ideologically hostile former government attorney—bad, very bad.”

Justice Department lawyer Mary Mason argued that any recourse against a government lawyer isn’t a subject for the courts, the San Francisco Chronicle reports. Instead, it “is for the executive to decide, in the first instance, and for Congress to decide,” she said.

Padilla is represented by Yale University law professor Hope Metcalfe, according to the Chronicle.

The New York Times also mentions the lawsuit in a story today that says lawyers and others are debating the issue of punishment for Yoo and other authors of controversial memos. The story says the authors are facing an investigation into the interrogation memos, and negative findings could be forwarded to state bar authorities for ethics inquiries.

Some critics are calling for criminal prosecution, pointing out that Nazi lawyers and judges were tried for war crimes. But scholars point out that the Nazi trials involved mass murders.

Columbia University law professor Daniel Richman told the New York Times it is unlikely that any Bush administration lawyers will be punished absent e-mail messages or other indications that they altered their legal conclusions to fit a policy agenda. Richman thinks that’s unlikely, since Yoo had long advocated aggressive theories of presidential power.

Yoo himself has pointed out that he had to make legal decisions “in an unprecedented kind of war with legal questions we’ve never had to think about before.” He worries that the publication of his legal memos will discourage government lawyers from giving straight-talk legal advice in the future.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.