I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.

1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney )in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques), Yoo’s future doesn’t look too bright.

(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)

2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.

In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)

Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!

*In the interests of full disclosure, Mr. Rojansky is a close friend of mine.

I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.

1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney )in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques), Yoo’s future doesn’t look too bright.

(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)

2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.

In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)

Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!

*In the interests of full disclosure, Mr. Rojansky is a close friend of mine.

I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.

1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques.

(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)

2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.

In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)

Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!

*In the interests of full disclosure, Mr. Rojansky is a friend of mine.

- John Yoo is guilty until proven innocent
- the burden to prove innocence is on John Yoo
- John Yoo should be punished, and punished severely, for a crime that Purohit refuses even to state
- a lawyer can be prosecuted for erroneous advice rendered to his client, regardless of the chilling effect this has on the effective assistance of counsel

Purohit’s positions are a disgrace, let alone unconstitutional and fascist. His was a post that should not have been made.

The critic should then put forward the basis on which it challenges Yoo’s conclusions. A different textual interpretation, cites to other authors / commentators, a reference to a moral code (Bhudda teaches us …, the Bible says …).

A lawyer can write that there is no applicable domestic or international law specifically banning the U.S government from using (the xyz enhanced interrogation technique). That conclusion may be correct or incorrect. It may be correct but then the debate turns on whether the XYZ enhanced interrogation technique is raises to a level that is universally, generally, or rarely considered to be torture. The next step of the analysis is what laws ban torture. [Most everyone agreeing that torture is a bad thing. Not everyone agreeing that XYZ enhanced interrogation is torture].

However, any talk or proposal to disbar, punish, or ban John Yoo, is ridiculous on its face.

I think the answer is not to draw a conclusion about Yoo, or summarily dismiss him from Berkeley, at this point. Rather, I think the burden is on John to come forward with his own story, and for other administration officials to do the same. If they fail to do so, then the burden shifts to Congress and concerned citizens to press for a deeper investigation.

But short of that, we just don’t know anywhere near enough about what actually happened within the administration in the early days after 9/11 to conclude whether Yoo or others were quite as knowingly or (to semi-intentionally use a legal term) grossly recklessly endorsing torture as Raj, DeLong and others suggest.

Yes, there’s a case to be made that Yoo was at least reckless in his disregard for the consequences of his legal advice, but I wonder whether fuller context from the time would illuminate a slightly different story: The administration, like the country, was probably questioning a lot of fundamental assumptions they suspected might have left this country vulnerable on 9/11–some political, some military, and some legal. While it’s no excuse to suspend robust legal analysis and ultimate sound decision-making, it’s at least understandable that lawyers charged with parsing what they considered a substantially new geopolitical/security landscape in legal terms would have been inclined to push the boundaries of theoretical questions like what type of treatment is permissible.

I’m no apologist for torture memos, but I do want more information before I level charges of intentional or reckless abetment of torture. I’m involved in a working group now considering precisely what steps might be needed to achieve that clarity, and for those interested, I would be happy to share some of our conclusions offline.