Last year, the Department of Justice’s Office of Professional Responsibility concluded that the authors of the Bush administration torture memos, John Yoo and Jay Bybee, violated the standards of ethical conduct required of attorneys so egregiously that they should be reported to their state bar associations for disciplinary action. At the time, many of us thought that this was the least that they deserved—I’d have preferred to see them take the stand at the Hague—but it turns out that professional, let alone criminal, discipline isn’t going to happen: This week, another DOJ lawyer, David Margolis, rejected his department’s earlier finding and concluded that, while the torture memos represent very poor legal work, they’re not actually bad enough to merit professional sanction. In the words of Yale law professor Jack Balkin, Margolis found that the relevant standards of professional responsibility are so low that they are only “violated by lawyers who are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.”
Yoo is a very skilled lawyer, and the torture memos are what might be called exquisitely elegant hack work, or perhaps high-rent intellectual prostitution.
Yoo is a very skilled lawyer, and the torture memos are what might be called exquisitely elegant hack work, or perhaps high-rent intellectual prostitution. Because the opinion his employers wanted flew in the face of the views of almost all scholars of the law of war, Yoo had to engage in the sort of highly selective and distorting arguments that an attorney being paid to advocate for a fundamentally weak position must use.
Now Yoo is now back at UC Berkeley, where he taught before joining the Bush administration. He is molding the minds of the next generation of lawyers. The school has no plans to do any inquiry of its own into Yoo’s behavior, or even to modify the professor’s teaching schedule, other than to keep the time and location of Yoo’s classes off the school’s Web site, in order to discourage protesters.
Yoo’s continuing and apparently permanent position on the faculty of one of the nation’s leading law schools does have some significant educational value for his students. For one thing, I am reliably informed that, when he’s not busy arguing that the president has the legal authority to massacre villages and crush the testicles of children, Professor Yoo teaches a very fine class in civil procedure.
Beyond that, having Yoo as one of their professors teaches Berkeley’s law students several valuable lessons.
First, if you’re a person of high social status and have good enough political connections, nothing will happen to you even if you commit the most serious crimes. (This applies even more obviously to Yoo’s former White House employers, but the fact that it’s impossible in this country to levy even the mildest professional sanctions against a mere law professor illustrates the absurdity of imagining it might be possible to actually prosecute the likes of Dick Cheney and Donald Rumsfeld.) Second, the legal profession’s system of self-regulation is largely dedicated to protecting lawyers at almost any cost rather than protecting the public from the consequences of incompetent or immoral lawyering.
Third, legal argument is a sufficiently flexible tool that, under the right circumstances, it’s possible to argue successfully that torture isn’t torture, that laws which explicitly make no exceptions for exceptional circumstances actually do make exceptions for exceptional circumstances, that in time of war America is essentially a dictatorship, and that we are always at war. These are all very valuable lessons, which American law schools generally do their best to avoid conveying to the students. John Yoo’s brilliant career makes these lessons easier for his students—and are we not all, in this matter at least, his students?—to learn.
Paul Campos is a professor of law at the University of Colorado at Boulder.