[opiniojuris] Kevin Jon Heller: John Yoo and the Justice Case -- Post at Balkinization

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Posted by Kevin Jon Heller:
John Yoo and the Justice Case -- Post at Balkinization
http://www.opiniojuris.org/posts/1209684149.shtml


   Marty Lederman has kindly published [1]a long post I have written on
   what -- if anything -- the Justice Case has to say about the criminal
   responsibility of government lawyers like Yoo. Here is the
   introduction:

     Scholars who argue that John Yooâs authorship of the infamous
     torture memos makes him complicit in various war crimes -â torture,
     illegal detention, etc. -â almost invariably cite the WWII-era case
     United States v. Alstoetter, commonly referred to as the Justice
     Case, for the proposition that a government lawyer can be held
     criminally responsible for giving erroneous legal advice to his
     political superiors. Here, for example, is what Scott Horton, an
     excellent scholar and one of our finest bloggers, has to say:

     Can a lawyer at the Department of Justice be criminally liable for
     giving opinions that lead to the torture and abuse of prisoners in
     war time? The answer is: Yes. The precedent is United States v.
     Altstoetter. The sentence handed down was ten years, less time
     served awaiting trial. Itâs a case for John Yoo to study in the
     period leading up to his inevitable prosecution.

     I do not know enough about Yooâs actions to venture a general
     opinion about their possible criminality. I do know something,
     however, about the Justice Case -â I am currently writing a book
     for Oxford University Press on the jurisprudence of that trial and
     the eleven other trials held in the American zone of occupation
     between 1946 and 1949, which are collectively known as the
     Nuremberg Military Tribunals (NMT). So I thought readers might be
     interested in a detailed look at what the Justice Case says -â or
     doesnât say -â about the culpability of government lawyers who
     advise their clients that unlawful conduct is, in fact, lawful. The
     bottom line, in my view, is that as reprehensible as Yooâs opinions
     were â- and they were indeed reprehensible -â the case provides far
     less support for prosecuting him than most scholars assume.

   I hope readers will check out the entire post, along with Marty's
   [2]excellent introduction, in which he discusses his general views on
   the issue. I completely agree with Marty and hope that readers will
   not misunderstand my position. I am not saying that nothing John Yoo
   and the other government lawyers did could be considered criminal. I
   am not saying that the Justice Case rules out the possibility of a
   future prosecution. Indeed, I can imagine -- counterfactually -- a
   situation in which the NMT would have convicted a government lawyer of
   complicity for giving his political superiors advice he knew full well
   violated international law. My position is simply that the Justice
   Case did not involve such a situation and that, as a result, the
   judgment has almost no precedential value for a future prosecution of
   Yoo and/or others.

References

   1. http://balkin.blogspot.com/2008/05/john-yoo-and-justice-case.html
   2. http://balkin.blogspot.com/2008/05/what-if-anything-does-nuremberg.html