Sunday, February 21, 2010

Yoo's Professional Misconduct

Although Associate Deputy Attorney General David Margolis has decided that John Yoo's "poor judgment" did not rise to the level of professional misconduct, the issue is not yet settled, because what is essentially the same issue is being litigated in federal district court, and is now before the 9th Circuit Court of Appeals.

In the recently-released final report of the Office of Professional Responsibility within the U.S. Department of Justice, the OPR concluded that many of the misstatements and omissions in the legal memoranda that John Yoo (then in the Office of Legal Counsel) approved on the use of "enhanced interrogation techniques" were intentional and constituted professional misconduct because he failed to provide legal advice that was thorough, objective, and candid. The OPR concluded that Yoo failed to provide the proper level of legal advice because he "put his desire to accommodate the client" (i.e., the policy makers in the Bush White House) above his professional obligations.

In rejecting the conclusion that the misstatements and omissions constituted professional misconduct, Assoc. Deputy Attorney General Margolis disagreed that Yoo wanted to tell the policy makers within the Bush administration what they wanted to hear, and concluded instead that Yoo was telling the Bush administration what Yoo wanted them to hear. "While I have declined to adopt OPR's findings 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 author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client."

But is the sincerity of Yoo's ideology a defense to charges of professional misconduct?

That issue may be addressed in a federal district court action brought by Jose Padilla against John Yoo in which Padilla alleges that John Yoo's memos resulted in Padilla's imprisonment (and mistreatment). Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal.) Yoo moved to dismiss the lawsuit on the grounds that, among other things, he was a federal officer entitled to immunity to suit. In a ruling last June, the court ruled that Yoo was not entitled to immunity because the opinions expressed in Yoo's memos violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

The district court ruling is currently on appeal to the 9th Circuit (No. 09-16478), and one of the issues being argued is whether Padilla's complaint alleges facts that constitute unprofessional conduct by Yoo, and a brief filed by a group of professors of legal ethics say that it does. According to the "amicus" brief filed by "legal ethics scholars" last month, Padilla has alleged that Yoo "stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism," and that allegation supports the conclusion that Yoo did not merely give "poor" or "incorrect" legal advice, but gave advice that violated ethical rules.

In other words, Margolis seems to believe that Yoo did not act unethically because he only allowed his own views to interfere with his obligation to give impartial legal advice, while the legal scholars filing the amicus brief with the 9th Circuit believe that Yoo acted unethically because he allowed his own views to interfere with his obligation to give impartial legal advice.

Now, the 9th Circuit is being asked to rule on allegations and not evidence, but the fact that the OPR has already concluded that Yoo's erroneous legal advice was not accidental but intentional suggests that Padilla will be able to prove the same thing. And Padilla may be able to avoid the mistake that the OPR may have made in assuming that Yoo gave bad legal advice to please the White House and failing to consider that Yoo might have given bad legal advice to please himself.

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