Did a Government Lawyer "Aid and Abet" Possible War Crimes By Writing a Crucial Memo?
The Controversy Surrounding Berkeley Law Professor John Yoo

At this year's graduation at the University of California at Berkeley's Boalt Hall School of Law, about one-quarter of graduates wore red armbands. They were protesting Boalt law professor John Yoo's co-authorship of a memorandum written in 2002, when he served in the U.S. Justice Department's Office of Legal Counsel.

In the memorandum, Yoo expressed the view that neither those whom the government deems to be Al Qaeda members, nor those whom it deems to be Taliban members, are covered by the Geneva Conventions. That strongly implies -- though the memo does not explicitly state -- that detainees in Guantanamo who are suspected of being Al Qaeda or Taliban members are not covered by the Geneva Conventions' protections against abuse or torture.

It's important to stress that under Yoo's approach, the class of those unprotected by the Geneva Conventions includes not only well-known leaders thought to have information about terrorist attacks, but also any person suspected of being an Al Qaeda or Taliban member. Effectively, the logic of Yoo's memo strips all persons deemed to be possible terrorists of Geneva Convention protections (unless, as in Iraq, the President has specifically deemed the Conventions to apply).

Human rights attorneys have complained that Yoo's Geneva Conventions argument, with respect to Al Qaeda and the Taliban, is not only wrong, but, in their view, specious - a misreading of the law. They have also noted that Yoo's memo ignores the protections of an important treaty that the U.S. has ratified: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Granted, Yoo and his co-author did not specifically take up the issue of abuse and torture, and were very clear that their memo covered only legal, not policy issues. But they must have known the possibility of torture was a real one, and the memo lacked any stern caveats about legal or moral issues. And in the international law arena, the lines between law, policy, and ethics can be unclear - suggesting an especially great need for caveats.

Some Boalt Hall students see a connection between Yoo's memo and the reported abuses in U.S.-run prisons abroad - in particular, Abu Ghraib. They have denounced Yoo for "aiding and abetting war crimes."

Might he actually have done so?

No Allegation of Hypocrisy Or Catering

What's important to first note, is that there is no accusation being made that Yoo changed his views in order to give the Bush Administration advice it wanted. To the contrary, Yoo has pointed out that his academic articles have stated the very same views he expressed in the memo.

So it appears that what Yoo wrote was what he has long believed. Indeed, Yoo was likely chosen by the Bush Administration to advise precisely because of the views he held, as laid out in his prior academic articles.

Some may say there is nothing wrong with this: Any Administration is entitled to choose like-minded advisors. But when the advisors are lawyers, the issue becomes more complex.

For example, whereas a President should choose a National Security Advisor because their views on the world situation must be copacetic, a President (or his advisors) should not choose a government attorney because he or she likely will not put legal obstacles in the President's path. Particularly in this context, choosing a lawyer with a strong, near-absolute view of executive power means choosing someone who will likely set no legal limits.

This choice ought to be laid at the Administration's door - not Yoo's. But Yoo's own choices can also be called into question.

When Thought Becomes Action: Giving Legal Advice as a Moral Act

Some have claimed the controversy over Yoo's memo at Berkeley is simply an academic freedom/free speech issue, and urged that the answer is obvious: Yoo ought to be able to express whatever views he chooses. But Yoo did more than just express views; in writing the memo, he also offered counsel.

After all, Yoo's articles alone could have been used to justify Administration action, even if he had never worked for the government. What his memo added - as he was doubtless aware - was cover. It provides cover for the Administration, in the event there are future attempts to prosecute Administration members for war crimes. In such proceedings, he doubtless anticipated that advice of counsel could either be used as a formal defense, or at the very least, a persuasive point in favor of the defense: "My lawyer told me it was legal."

Of course, legal opinions are used for - indeed, procured for - what amounts to "cover" all the time in private practice. But the government should be held to a higher standard; an Executive official should seek a legal opinion for candor, not cover. And from the government attorney's point of view, the attorney should realize that giving legal advice that one knows will be used in a certain way is a morally freighted act, and that when basic human rights are at stake, the moral import of that advice is even graver.

In sum, the Berkeley students who have protested Yoo's action in writing the memo should not simply be accused of being anti-academic freedom. They are arguing that through the act of giving counsel, Yoo acted immorally, perhaps even illegally.

They object, that is, to what the memo adds to the views Yoo had already expressed in academic articles: A specific blessing from a person acting not as professor, but as attorney. Lawyers' advice matters: It can make people hesitate, or spur them on.

Did Yoo's Memo Aid and Abet War Crimes? No Link to Abu Ghraib in Particular

That brings us back to students' specific accusation: That Yoo, in writing his memo, aided and abetted war crimes.

As noted above, Yoo expressed the view that accused Al Qaeda and Taliban members aren't covered by the Geneva Conventions. The bottom line: They have no legal protection against torture or other abuse.

Yoo's view that the Geneva Conventions do not apply would presumably have covered suspected Iraqi resistance or Al Qaeda members in Abu Ghraib and other prisons, too. However, as he noted in a recent Wall Street Journal Op Ed, the President "announced" early on that he deemed the Geneva Conventions to apply in Iraq, and must now abide by his word.

Thus, it's not fair to link Yoo's memo to the Abu Ghraib abuses - as some students have done. Any influence Yoo's memo might have had as to comparably situated prisoners in Iraq, was probably superseded by the President's own announced view.

But it is fair to hold Yoo morally responsible for the causal role his memo may be playing outside Iraq.

Could Yoo's Memo Have Caused Abuses, Or Cause Them in the Future?

While Yoo does not expressly discuss torture in his memo, it seems impossible that the issue would not have been on his mind. After all, he co-wrote the memo in the wake of September 11, when the interrogation of suspected terrorists and other suspected hostile persons was already a priority for the Bush Administration.

In addition to the Abu Ghraib abuses, there have also been much less publicized reports of possible acts of torture and abuse by U.S. forces in connection with the war on terrorism elsewhere - in Guantanamo, and in Afghanistan's prisons. Yoo's memo may have played a causal role in fostering these possible abuses - not only because of what it said, but because of what it did not say.

Had the memo taken an opposite view, would-be torturers might have thought long and hard before going ahead. Indeed, had the memo even been written more equivocally, and more responsibly - for instance, stressing the immorality of any torture, while expressing the view that it was technically legal - then it might have triggered greater qualms on the part of those who sought to rely on it as permission.

So while students' claim that Yoo "aided and abetted" war crimes may have sounded like overheated rhetoric, from a causal standpoint, at least, it may turn out to be reality.

Suppose the memo did cause abuses. Is it also fair to say, as students have, that it "aided and abetted" them? From a moral point of view, possibly. But from a legal point of view, probably not.

Even if Yoo's Geneva Convention views are indeed a blatant misreading of the law, as human rights groups claim, it would be very dangerous (from a legal point of view) to deem the giving of even specious legal advice a form of aiding and abetting.

There are many strong institutional reasons not to make lawyers - in particular, here, government lawyers -- criminally responsible for "aiding and abetting" their clients' actions: Most obviously, to put governments' attorneys on trial for war crimes would only deter future lawyers from candidly advising heads of state - a potentially disastrous consequence.

Similarly, there are strong institutional reasons not to put professors' jobs in jeopardy because they gave advice to the government, no matter what that advice may have been. For one thing, such advice could become a pretext for removing a professor whose academic articles are controversial, thereby risking an impingement on academic freedom. (Yoo has suggested that is what is happening here, and it's certainly possible - although it's also possible that it is truly the memo itself, and its possible causal connection to abuses, that has sparked students' outrage.)

Speciousness can also be too much in the eye of the beholder to form the basis for criminal penalties, or for removal from a position in a job integrally involving free speech. (Indeed, constitutional prohibitions against vagueness in criminal statues strongly counsel keeping lawyers' advice out of the criminal realm entirely.)

But Yoo's actions still can be judged morally - and judged harshly. And from a moral point of view, students are right to protest them. They are right to do so if they find Yoo's Geneva Convention views specious. They are right to do so if they simply find torture immoral and wrong. And they are right to do so if they are concerned, as I am, with the especially horrific prospect Yoo's views open up: that entirely innocent persons may be, or have been, subject to torture and abuse.

The Convergence of Two Views Leaves Innocent Detainees Helpless

At the same time that Yoo advised the President that the Geneva Conventions did not apply to Al Qaeda and Taliban detainees at Guantanamo and elsewhere, he also advised, in a separate memo, that no U.S. court can review claims by Guantanamo detainees saying that they are innocent of any crime, and are not even members of such groups in the first place.

This advice, too, is morally suspect, and could lead to abuse. With no judicial review, no Geneva Conventions protection, no procedure to prove innocence, and the current, freighted "war on terrorism" atmosphere adding pressures to the mix, surely the possibility that innocent persons will be tortured or abused is a very real one.

For those who open up such possibilities, hiding behind a law degree and an official position does not mitigate the wrongness of what is done.