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Diana Shaw: The tortured logic of John Yoo

Democratic Voices

Posted: June 15, 2009 10:23 p.m.
Updated: June 16, 2009 4:55 a.m.
On March 14, 2003, John Yoo of the Justice Department's Office of Legal Counsel wrote a memo addressing military interrogation of alien unlawful combatants held outside the United States.

Yoo's memo essentially tells the commander in chief of the United States that if he orders it - whatever "it" ends up to be - it must be legal.

Jack Goldsmith, who headed the Office of Legal Counsel from 2003 to 2004, repudiated Yoo's memo.

Goldsmith explained on on May 18, 2009: "One consequence of (OLC's) power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes."

Yoo is now a UC Berkeley tenured law professor. That's right. Your tax dollars pay Professor Yoo to impart his values to California's youth.

What's more, his Office of Legal Counsel supervisor, Jay Bybee, enjoys an appointment to the 9th U.S. Circuit Court of Appeals.

From the time they take the tough ethics portion of California's Bar exam, our lawyers are reminded of their ethical responsibilities.

They regularly tuck ethics classes under their belts.

If they have a ghoulish streak like me, when their monthly magazine arrives, they turn to the section listing the reprimanded, suspended and disbarred attorneys who have violated their ethical responsibilities to see if they recognize names and what led to their demise.

After five years of review by the Justice Department's own Office of Professional Responsibility, it has fallen upon Attorney General Eric Holder to opine on allegations that Yoo and Bybee crossed the ethical line.

Recommending referral to bar associations for discipline, According to a Daily Beast report from May 6, 2009, Holder's report suggests the authors failed to exercise the independent judgment and professionalism they owed their clients and may have created legal cover for pre-existing conduct.

Under California's Rules of Professional Conduct, an attorney can neither advise a client to violate the law nor recklessly fail to perform services with competence.

Yoo, licensed to practice in Pennsylvania, is not covered by California's rules, but as a UC law professor he should share our ethical standards.

I waded through Yoo's tome of tortured logic. Had Yoo addressed torture rulings, a logical expectation, he would have noted that post WWII American judges sentenced a number of Japanese soldiers to hang for water-boarding Americans.

John McCain addressed this history in November 2007 (confirmed by the St. Petersburg Times).

Instead, Yoo analyzes words, noting that the United Nations Convention Against Torture, to which we are signatory, defines "torture" as the infliction of "severe pain." Fair enough.

We know art when we see it, and we should know severe pain when we feel it.

Admitting a lack of detail on the subject, Yoo excavates a Medicare statute that defines the threshold for emergency treatment. Yes. Medicare.

When Bill O'Reilly wails that water-boarding is not torture, his reasoning (presumably Yoo's) is based upon health insurance emergency care.

Severe pain under the statute indicates an ailment that can cause death, organ failure or impairment of bodily function and therefore, in a desperate leap of logic, Yoo concludes interrogation is torture only if it reaches the same thresholds.

Under Yoo's tutelage, a president can ignore the Convention Against Torture since anything a president does is legal because he is president, subject to the necessity of war.

I was surprised that Yoo did not address the seminal 1952 Supreme Court ruling on President Truman's seizure of steel mills to avert a strike. Like the necessity of war rationale for Yoo's take on presidential powers, Truman cited needs of the troops fighting in North Korea.

Yet the Court ruled Truman had overstepped constitutional limitations. Our system respects precedent. Yoo apparently does not.

It is one thing for an attorney to voice outer-limit arguments during an adversarial conflict. If you prevail, good for you.

It's quite another to pander to your client by withholding the dark potential inherent in the client's chosen path.

At the least, Yoo rendered legal services recklessly, a violation of California's ethical boundaries.

I'm not the only one steamed about Yoo. A coalition of organizations recently filed disciplinary complaints with state bars against 12 attorneys, including Yoo and Bybee.

"These lawyers misused their license to practice law to provide legal cover for the war crime of torture," said Kevin Zeese, coalition lead counsel, in an MSNBC/AP report May 18.

Yoo's 2003 memo falls outside Pennsylvania's four-year statute of limitations, so he won't be disbarred.

However, it is time to end his opportunity to sully California's youth. And it is time for Congress to remove Yoo's supervisor from California's federal appeals court.

Diana Shaw is a Santa Clarita Valley resident, an entertainment attorney and an elected member of the L.A. County Democratic Central Committee. Her column reflects her own views amd not necessarily those of The Signal. "Democratic Voices" is written by local Democrats and runs Tuesdays in The Signal.


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