John Yoo and Jay Bybee Dodge Disciplinary Action but Recall Nuremberg

Are Law Professor John Yoo and Federal Judge Jay Bybee war criminals or have they just dodged a bullet? Perhaps both.

This week the Justice Department released the final report from its Office of Professional Review on the actions of Yoo and Bybee who, as officials in the Office of Legal Counsel noted, wrote the infamous “torture” memo advising the Bush administration that waterboarding and other “enhanced interrogation” techniques were not “torture”; that the president as Commander-in-Chief was not bound by federal law prohibiting torture; and that, in any event, the persons who actually committed such actions might have defenses against prosecution, such as self-defense and necessity.

Yet, despite the fact that, as Slate’s David Luban noted, “[The original report] harshly condemn[ed] the torture memos and recommend[ed] discipline for the lawyers who wrote them,” the final version includes a memo from Associate Deputy Attorney General David Margolis criticizing the findings and rejecting the recommendation that they be disciplined by their respective state bars. Margolis’ milder verdict accused the two of “poor judgment.” Luban concluded that “They are home-free.”

But are they? 

Yoo’s defense, that servants of the president cannot be prosecuted under domestic law, is the same claim that defendants raised at the Nuremberg trials. There too, it was argued that some or all of the actions for which defendants were being prosecuted were lawful under the legal framework of Nazi Germany. According to the Nuremberg standards, which are still in place, John Yoo and Jay Bybee may still be war criminals and may yet face prosecution—though it’s unlikely to happen in the United States.

It’s Not Illegal if it’s for the President

Much of Margolis’ report concerns the actions of Yoo rather than Bybee, who’s described in the report as having an essentially “supervisory role.” For both men the ultimate standard for professional misconduct was the same: did they “knowingly or recklessly provide incorrect legal advice.” In Bybee’s case, Margolis states that the evidence does not support such a finding because he relied on the advice of well-respected attorneys, including Yoo.

Yoo’s situation was different as the original report concluded that Yoo engaged in intentional misconduct. Margolis concluded that Yoo offered “extreme, but sincerely held views of executive power.” Thus, in his case as well, although Margolis concludes that many of Yoo’s opinions were wrong as a matter of law, Yoo could not be found to have engaged in professional misconduct.

Essentially Margolis is suggesting that John Yoo really does believe that the president possesses unlimited legal authority in the area of national security. Therefore, an executive branch official who follows the directives of the president cannot be prosecuted under the laws of the United States.

It’s difficult to believe, as Margolis does, that Yoo didn’t understand that his views did not represent the law of the land. He is too smart to have been in the dark about the fact that his conclusions reflected only his specifically minority view. Nevertheless, even if we assume that Yoo recommended what he did in the good-faith belief that the president’s word is law (and thus that he delivered minimally competent legal advice), that still doesn’t exonerate him. He may indeed be a war criminal.

Yoo’s description of the law is eerily familiar. His claim that servants of the president can not be prosecuted under domestic law was also raised by defendants at the Nuremberg trials. There too it was argued that some or all of the actions for which defendants were being prosecuted were lawful under the legal framework of Nazi Germany. That claim was so prevalent, in fact, that “I was just following orders” has come to be known as the “Nuremberg Defense.” 

Principle VI of the guidelines created by the International Law Commission of the United Nations for determining what constitutes a war crime for purposes of the Nuremberg Trials included “ill-treatment of prisoners of war.” Under Principle VII, complicity in the commission of a war crime is also a crime under international law. And, most important for our purposes here, Principle II declared that “[t]he fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.”

In other words: Margolis’ rejection of the OPR verdict released this week does not preclude Yoo and others from being prosecuted for war crimes internationally; under the Nuremberg framework, Yoo’s conclusion that torture and other actions are condoned by the president’s role as Commander-in-Chief would be irrelevant. Lawyers and Judges were prosecuted at Nuremberg.

If Not by International Court, then the Court of History

I don’t wish to be misunderstood as suggesting that President George W. Bush was like Hitler or that American interrogation techniques were like the Holocaust. Whether or not the actions Yoo defended constitute “ill-treatment of prisoners of war” would have to be examined with care in a fair hearing.

I am, instead, pointing out the inadequacy of purely formal legal analysis in determining Yoo’s guilt and that of others. Nuremberg represented a reestablishment of natural law principles binding on all governments and officials at all times. It was understood that the Nuremberg Principles constituted, to an extent, ex post facto law. In other words, actions that might have been legal in the sense of man-made, or positive law, at the time they were committed, were nevertheless rendered punishable after the fact.

For all their purported religiosity, the Bush administration never took the natural law foundations of Nuremberg seriously. They never believed that their actions were subject to norms and standards that bind all men and women regardless of domestic law. But all persons now are on notice—and have been since WWII—that there are binding principles to which they will be subject.

It is possible that Yoo will never face judgment under the Nuremberg principles, but that is far from certain. Both he and those he advised are subject to prosecution anywhere, at any time. And he must know that. He must either travel with care and assurances or remain at home in self-imposed restriction.

Furthermore, even if he and others are never tried, they will remain subject to the court of history. In that regard, we all have a responsibility to ensure that the actions of the Bush administration not be allowed to pass into obscurity. We must be certain that the judgment of the future is informed by our insistence that certain actions do represent torture and mistreatment and can never ultimately be lawful.

John Yoo is a professor of law at the University of California at Berkeley School of Law. His thoughts on executive power are the subject of books—his own and those of others—and are cited in textbooks on the subject. I am ashamed that my fellow law professors have not shunned him. I have asked the editors of the constitutional law textbook that I teach to omit all references to Yoo’s work, or at the very least to note the allegations against him. They are unwilling to do this, as are any textbook editors. I would add that all such discussions should include references to Nuremberg.

As we know, sometimes the only power is to bear witness. John Yoo is not going to be disbarred; nor is Jay Bybee going to be impeached and removed from the federal bench. They may never have to defend their actions in any court. That is why it is essential that we remember. And if we do, perhaps history will ensure that the actions and justifications of the Bush administration will never be repeated.

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