From 2001 to 2003, law professor John Yoo served as deputy assistant attorney general in the Office of Legal Counsel (OLC) in the Justice Department of President George W. Bush. In that brief time, he wrote or helped write key memos pertaining to the president's authority in fighting terrorism, which included assertions that the Geneva Conventions did not apply to al-Qaeda or Taliban fighters, that Americans' international communications could be subject to National Security Agency surveillance without a warrant, and that domestic and international antitorture laws only applied to a very small class of interrogation practices and adequate legal defenses existed in cases in which torture did, in fact, occur.
This last series of opinions--commonly referred to as the "torture memos"-created a firestorm of opposition when made public, and triggered a four-year investigation by the Office of Professional Responsibility (OPR) in the Justice Department. The OPR examined whether John Yoo and his boss, Jay Bybee, who had signed off on the 2002 memos, violated professional norms and standards.
In their final report, OPR investigators found Yoo guilty of professional misconduct, basing their conclusion on evidence that "Yoo knowingly provided incomplete advice to the client" and that he had failed in his "obligation to inform his client that his analysis was a novel and untested one" (OPR 2009, 253, 252). Consistent with the department's practice, his case would then be referred to the disciplinary bodies of his bar associations in Washington, D.C., and Pennsylvania.
But the final decision rested with Associate Deputy Attorney General David Margolis, and he disagreed with the OPR. A high-ranking career attorney at Justice, Margolis criticized the standards used by the OPR, and he concluded that the Justice Department would not refer either Yoo or Bybee to their state bar associations (Margolis 2010, 67, 68-69).
Yoo characterized the Margolis decision as "a victory for the people fighting the war on terror," including himself, who had written the legal opinions "in good faith." This refrain was picked up by Yoo partisans, who called the Margolis report a vindication. An editorial in the Wall Street Journal, for example, said Margolis had found that Yoo and Bybee "made legal errors but did so in good faith ... in the ethical service of their clients in the executive branch at a time of war" (Frisby 2010). The editorial ignores Margolis's strong criticism of Yoo and Bybee, but it reflects the attitude of those who saw an exoneration of John Yoo. One result appears to be the continuing credibility accorded Yoo's theory of presidential power, despite the fact that it contradicts the vast body of scholarship on the presidency and constitutional law. (1) Yoo publishes a monthly column called "Closing Arguments" in the Philadelphia Inquirer and continues to be published on the editorial pages of the Wall Street Journal, Washington Post, and New York Times, as well as in numerous law reviews. (2) For example, his views on executive power and the nomination of Elena Kagan to the U.S. Supreme Court were published by the New York Times two weeks after her nomination (Yoo 2010b).
This study will argue that the OPR's higher standard was the correct one to apply in Yoo's case, and that the Justice Department should have referred him to his bar associations to consider for disciplinary action. To advance this argument, the context and language of the 2002 and 2003 interrogation memoranda will be examined, followed by a review of the findings of the OPR and David Margolis. The study will then argue that Margolis applied criteria appropriate to the private lawyer model, but that are not adequate when evaluating the actions of a law officer in the Department of Justice.
The "Torture" Memos of John Yoo
On August 1, 2002, an OLC memorandum drafted by John Yoo was signed and sent by Assistant Attorney General Jay Bybee to the White House counsel, Alberto Gonzales (OLC 2002a). …