March 6, 2009

"These memos I wrote were not for public consumption. They lack a certain polish." Said John Yoo.

Polish?
"I think [it] would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."...

"One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’ ... Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do."
Any sympathy for the lawyer? For lawyer-client confidentiality? The need for harsh, straight-talk without the verbal lubrication of public speaking.

UPDATE: More here.

34 comments:

Fred4Pres said...

Yoo's memos were made to give legal cover to a decision that was already made. No amount of polish is going to clean up that crap sandwich. Yoo obviously agreed with the decision. Many would have said no.

I would have more respect for Yoo if he came out and just tried to defend what he wrote. He need (and should not break privilege)--just say why these harsh measures are legal (as he concluded).

Henry Buck said...
This comment has been removed by the author.
m00se said...

Lawyers behaving badly! Perish the thought!

Off with his head!!

former law student said...

Boo freakin' hoo. Yoo should have realized he was writing for posterity. Further, Yoo's "client" was the United States of America, not just one politician. His fiduciary duty was towards us (U.S., as the late Paul Harvey used to say.)

Joe said...

Can't we all just agree that John Yoo is a complete dick and leave it at that?

David said...

I have lots of sympathy for the lawyer and for the doctrine of executive privilege, even though I disagree with John Yoo on most of his legal conclusions.

How do you suppose members of Congress would respond if their communications with their staff and counsel were regularly released to the public?

If we want our leaders to get objective advice, they and their advisors need to have a presumption of confidentiality. Otherwise the substance and tone of the advice will be shaded out of fear. Lawyers are subject to the same self protective urges as anyone else.

Privilege is conditional and should be subject to review in limited circumstances. The attorney client privilege is subject to numerous conditions.

But confidential communications should not--as here--be released just because the next administration wants to. This is a very bad idea, and will chill advice if it becomes a habit.

Greg said...

Yoo's getting a taste of what private lawyers have been faced with for years. Under the Holder memorandum and its progeny, the decision whether or not to prosecute a company factored in that company's willingness to waive attorney-client privilege and work-product protection. Sarbanes-Oxley also eroded corporate privilege.

Lawyers in the private sector, therefore, have operated for years with the understanding that while there is strong protection under the various privileges, circumstances beyond their control could result in waiver. The legal memo written for one CEO could be produced by the next CEO to the DOJ, as the privilege rests in the corporation, not in the executive.

So, no, not feeling any pity for the poor government lawyer who now has to operate under the same restrictions the rest of the world has to.

veni vidi vici said...

I think Yoo makes a good point. In an age where completely idiotic, uncurious nincompoops comprise the "investigative" media that will now jabberjaw these documents to pieces across the cable and broadcast spectra, there is something to be said now for the "unvarnished raw legal memo" standard of prose versus the "with an eye to public consumption" standard.

This, like everything else, though, will break down along familiar lines: on one hand, those who look at the reasoning and justification and contextualize it against conditions at the time and administration objectives, and those with an axe to grind.

In both groups, there will be those who agree and disagree with the memos' conclusions. However, it'll be easier to listen to the arguments pro and con from the one group than the other.

Is it just me, or is the US government seemingly moving towards the "Solar Lottery" model set forth by Philip Dick? That TeleprompterEverywhere(TM) should be a clue to the qualifications necessary to "lead" anymore. Where's our modern-day Farrakhan, discussing the new "hidden hand"?

tim maguire said...

Yoo is being vilified for the contents of his memo. I have seen no commentary at all about the accurateness of those contents.

He was asked to opine on the state of the law, not on the state of what he wishes the law were. It's the president's job to decide what to do with the information, not Yoo's.

The attacks on Yoo (and others, from time to time--Yoo is not unique in his victimization) are not just ignorant, but dangerous. The attackers are demanding that the presidnet's aides filter their information and advise the president dishonestly. To do, despite being appointed officials, the job of elected representatives.

Wahrheit said...

From the linked article:

One of them, written by Yoo, says government troops could storm buildings housing terrorists, and protections guaranteeing free speech and warrantless searches could be suspended in wartime.

How is this even controversial?

It is exactly what has happened in every war in history, including the wars of the Unite States. Our "greatest President" Lincoln did all this and more, 1861-5.

I don't believe the critics, left, right or center, of the so-called "Global War on Extremism" or whatever it's called now are anti-American, or traitors to their country; they're just magical thinkers. They want complete security and complete freedom. They want to do everything to make the fight difficult, and expect the people who do the dirty work to win, with their hands tied, while never making a mistake or violating the non-existent "constitutional rights" of enemy combatants.

Get real, boys and girls. there are no perfect solutions. There are difficult decisions, compromises and trade-offs. That's what Yoo wrote, and he was right. Criticize his opinions or his judgment, but unless you have been in the arena you've got no right to say he's a "complete dick" and "leave it at that."

Joseph Hovsep said...

I have no sympathy. If Yoo had reservations about any of the conclusions he drew, it would have been entirely appropriate to include those in an OLC memo. These memos address major policy issues and the Constitutionality of controversial actions. Obviously, nuance about the pros and cons of a given action would be expected no matter if the "decision" has already been made.

Wahrheit said...

Veni...Solar Lottery! You are so right. Anyone reading these comments, get it and read it. I think it was Dick's first published novel.

Eli Blake said...

Can't we all just agree that John Yoo is a complete dick and leave it at that?

Scroo Yoo.

garage mahal said...

I'm just glad President Obama has the tools, now, to fight the terrorists in time of war. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,”.

There you have it. I'm sure the right is completely on board with this, as they have been for the last 8 years.

veni vidi vici said...

Garage,

Some look at Obama's use of Lincoln as his guiding light with suspicion that there's a habeas corpus suspending brotha behind all those eloquent teleprompter readings.

garage mahal said...

veni
Who knows. But we are at war indefinitely and must give our President any tool he needs.

veni vidi vici said...

Watching the president speaking this morning while on the treadmill at Equinox, I noticed a few things:

1. Before he came on, market was up ~30 pts from yesterday's close. As he spoke, it went down(from yesterday's close) 28, 39, 57, 48, and finally settled down 28 from yesterday's close when he finished speaking. Remarkable; what people say about "every time an administration official opens his/her mouth, the market tanks" just gained credibility in my experience.

2. I am saying it here first: Obama is the "Bobble-head President". The teleprompter thing is distracting and very queer. His head swivels back and forth, like he's posing for pictures in that "looking deeply into the distance" style that all Great Men of History like so much, but never, ever looks straight ahead. Having such reliance on the teleprompter crutch that one cannot look away from it for even a sentence fragment indicates laziness: does he even know what he's going to be saying before the words come onscreen?

3. If he's to continue with the Leif Garrett-esque profile posturing necessitated by his heavy reliance on the teleprompter, he ought to have a fan blowing at him giving him that Barry Gibb-esque "windblown" look, preferably with his shirt open a few buttons and his chest-hair waving seductively, to complete the package.

4. When the worm turns on this administration (and it always does, so Obama's not the exception), there will be no end to the hilarity. There's simply far too much to work with here for the entertainment klasse to ignore for much longer, unless they're all complete nutters. The American tradition is to lampoon our leaders; why so dour about this one - it's not like he's Jesus or anything. Or is it?

Joe said...

For years, I've been bemused by the penchant for governments to carefully document their dirty deeds.

veni vidi vici said...

Garage,
don't get me wrong; the idea that Barry has some nefarious plot to take our liberties (at least, our physical liberties; reasonable minds may differ vis. economic liberty) and turn the country into the Matrix or something is way outside of my horizons. In fact, the idea is accompanied by the vague distant sound of black helicoptors...

John Stodder said...

Greg at 11:41 makes a really good point. I was about to say that I had no particular sympathy for the lawyers, but I did think damaging the ability of a present to get confidential counsel was bad for the country.

I suppose I still think that way. But Greg is right. If lawyer-client privilege can be forced to succumb to bullying by the government, then it's only fair that the government itself play by the same rules.

David said...

Veni Vidi--

I'm with you. Where's the eloquence when the teleprompter goes off? Plus eloquence is one thing--talking to the American people is another. Obama gives pretty good speeches. But when he talks it always sounds like a speech. There is very little sense of "he's talking to me." Even Bush, for all his fumbling (or perhaps because of it), was better at that.

Peter V. Bella said...

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,”.

On two separate occasions, Harry Reid used the power of his office in an attempt to restrict free speech. He sent a threatening letter to Disney demanding they edit some stupid movie that put Clinton in a bad light. He also sent a threatening letter to the Company that distributes Rush Limbaugh. Harry Reid, a US Senator suffered no sanctions over his official attempts at stifling free expression and free speech.

Oh the hypocrisy!!!!!!!!!!!!

garage mahal said...

Careful Peter. Careful.

Alex said...

So when are we going to frog march Yoo for his crimes against humanity?

cokaygne said...

I worked in government for 12 years. The agency I worked for was always being sued. In discovery, which was very expensive, every possibly remotely relevant scrap of paper or bit of memory was given to the plaintiffs. The upshot of this is that real advice and significant decisions are given orally in private conversations, often off-site. Anything written in a memo or eamil was a CYA job. We had no in-house counsel and getting formal advice from the AG took months. If the AG's formal written opinion was going to say that something was contrary to law, decision makers were orally informed well in advance. Surely the White House, must operate this way as well. Yoo could not have assumed that his written work would never see the light of day.

One more thing, as far as I know the two presidents to whom Obama is most often compared violated civil rights on a wholesale basis during wars. Lincoln suspended habeas corpus and FDR, with the assistance of future liberal Supreme Court justice Earl Warren, imprisoned an entire ethnic group. I'm no fan of Bush, but couldn't Yoo have used FDR and Warren's precedential actions in WWII to justify sending Arab Americans to concentration camps?

veni vidi vici said...

Given the precedent, he could've. Wildly politically unpopular move? Sure would've been. Bush wasn't particularly frightened of making unpopular decisions, though.

So, the fact that he didn't send the Arabs to detention means either that he wasn't serious enough about fighting "Terrah", or he wasn't the bogeyman many thought him to be.

Or at least, that's how some would interpret it.

veni vidi vici said...

So, Bush's term draws to a whimpering close and Showtime television calls the joint "the United States of Terrah".

Funny; you'd think Wall Street agrees with Showtime. Where's Begala, Carville and Emanuel; there's bound to be some message-coordination behind all of this!

blake said...

The only the worse than a lawyer is Trooper York not commenting on a thread about a lawyer.

Eric said...

I agree. Let's throw lawyers in jail for giving bad advice!

Simon said...

former law student said...
"Yoo's 'client' was the United States of America, not just one politician. His fiduciary duty was towards us"

What's your best authority for the proposition that executive branch officers have a fiduciary duty to the population generally, rather than to the administration and to enacted law representing the views of the population?

veni vidi vici said...

Obama flak in response to Simon, preferably in Brooklyn accent: "Hey, Yoo's guys did it, so can we."

former law student said...

What's your best authority for the proposition that executive branch officers have a fiduciary duty to the population generally, rather than to the administration and to enacted law representing the views of the population?

This theory was first advanced by the eminent legal mind of one Kenneth W. Starr, and was adopted by the courts in In re Grand Jury Proceedings and In re Lindsay.

Simon said...

FLS, I asked for authorities, not random musings or briefs by Dean Starr. If he proposed it, well and good; adopted by which courts in which cases?

Trooper York said...

"I agree. Let's throw lawyers in jail!"

Fixed.