First, some quick background: John Yoo (now a law professor at the University of California-Berkeley) worked in the Office of Legal Counsel in the Bush Administration. While there he authored memos authorizing the use of waterboarding as an interrogation technique. Basically, he interpreted (wrongly, most people believe) the federal torture statutes in a way that would allow waterboarding to be used.
There's been a call for Yoo to lose his law license, or even be prosecuted, for his complicity in causing officially sanctioned torture. Over at the Volokh Conspiracy, Orin Kerr has an article where he raises the hypothetical of a "Reverse Yoo." This "Reverse Yoo" (RY) hypothetical assumes that waterboarding was legal and supposes that John Yoo had twisted the law to say that it was not legal. Kerr then seems to suggest that RY would be just as bad as Yoo himself.
In a following post, Kerr evaluates the comments on his initial post to say that opponents of Yoo don't mind RY as much, because they dislike Yoo for policy reasons, not legal reasons.
I think that Kerr (and perhaps his commentators) miss the main reason why Yoo is different from RY.
Both Yoo and RY (in the hypothetical) violated a lawyer's ethical duty to provide honest legal advice. However, if we take as true (as Kerr did in the hypothetical) that waterboarding is a violation of the federal torture statutes, what Yoo did is not only violate his ethical duty, he also conspired to authorize the commission of a crime. In the hypothetical, RY did violate his ethical duty, but he did not authorize a crime; instead, he prevented action. The difference between authorizing and preventing action is a significant one; they are not analogous.
The only way RY could have "aided" in the commission of a crime (like the real Yoo did, under the assumptions in Kerr's article) is if his disallowance of waterboarding led to a terrorist attack. Of course, this would require a significant causal connection and predictability that would almost surely not be present. Even then, RY would probably only be liable for negligence, while the real Yoo was an active participant in a conspiracy.
So, while the real Yoo and the reverse Yoo both violated their ethical duties, the real Yoo's breach was more severe since it aided in the commission of a crime rather than in the curtailment of legal governmental action.
There's been a call for Yoo to lose his law license, or even be prosecuted, for his complicity in causing officially sanctioned torture. Over at the Volokh Conspiracy, Orin Kerr has an article where he raises the hypothetical of a "Reverse Yoo." This "Reverse Yoo" (RY) hypothetical assumes that waterboarding was legal and supposes that John Yoo had twisted the law to say that it was not legal. Kerr then seems to suggest that RY would be just as bad as Yoo himself.
In a following post, Kerr evaluates the comments on his initial post to say that opponents of Yoo don't mind RY as much, because they dislike Yoo for policy reasons, not legal reasons.
I think that Kerr (and perhaps his commentators) miss the main reason why Yoo is different from RY.
Both Yoo and RY (in the hypothetical) violated a lawyer's ethical duty to provide honest legal advice. However, if we take as true (as Kerr did in the hypothetical) that waterboarding is a violation of the federal torture statutes, what Yoo did is not only violate his ethical duty, he also conspired to authorize the commission of a crime. In the hypothetical, RY did violate his ethical duty, but he did not authorize a crime; instead, he prevented action. The difference between authorizing and preventing action is a significant one; they are not analogous.
The only way RY could have "aided" in the commission of a crime (like the real Yoo did, under the assumptions in Kerr's article) is if his disallowance of waterboarding led to a terrorist attack. Of course, this would require a significant causal connection and predictability that would almost surely not be present. Even then, RY would probably only be liable for negligence, while the real Yoo was an active participant in a conspiracy.
So, while the real Yoo and the reverse Yoo both violated their ethical duties, the real Yoo's breach was more severe since it aided in the commission of a crime rather than in the curtailment of legal governmental action.
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