Tuesday, March 2, 2010

The Reverse Yoo

Imagining a Reverse Yoo

Orin Kerr • March 1, 2010 12:14 pm

I have one more question to add on to yesterday’s post on John Yoo and the torture memos.

Let’s imagine what I’ll call a reverse Yoo. Here’s the hypo, with the question at the end.

The year is 2002, and the CIA has come to OLC seeking a legal opinion about what “enhanced interrogation techniques” are barred by the federal torture statute. Imagine that the federal torture statute is drafted a bit differently, however. Specifically, imagine that the fairest reading of the statute leads to the result that waterboarding and all the other techniques the CIA wanted to conduct are actually lawful. This result is not a slam dunk, because the statute is really vague.

But on balance, the most accurate and lawyerly reading of the statute produces the result that waterboarding and the other techniques were not actually prohibited by it.

Now we get to the reverse Yoo. Imagine that John Yoo is in charge of writing the memos, and he decides that his conscience will not allow him to write a memo approving waterboarding. Whatever the statute technically says, Yoo feels deep down that these techniques are torture: It would be unjust, un-American, and downright savage to let the CIA use these methods. John Yoo is not going to be like the Nazi lawyers who let the Holocaust occur: He must do the right thing to stop what he deeply believes is an obvious injustice.

So Yoo decides that he must write a memo concluding that these techniques are unlawful. Granted, he needs to get a bit creative to reach that result. He needs to stretch a legal term here, bend a legal term there. But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods. With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.

So here’s the question that I’d like to ask, specifically for the many readers who believe that the real John Yoo wrote the real memos in bad faith. How similar or different are your reactions to the real Yoo and the Reverse Yoo? Are you equally upset about the Reverse Yoo as you are the real Yoo, because in both cases he fudged the law to reach a result he personally wanted? Or is Reverse Yoo significantly less blameworthy, or even a hero, for having done the right thing and stopped waterboarding?


Yoo and reverse Yoo are equally at fault if they fudge the law to advance their personal opinions.

If the area is gray, there will be an unavoidable overlap between bias and objective analysis, but generally legal opinions are not given as black and white propositions unless they can be. So the complexity will be reflected usually in the review of the arguments pointing in different directions and balanced, nuanced conclusions that weigh and reflect the probability of those arguments in tension with each other.

If the unique OCL task is to say, finally, what's legal, then, presuming a good faith effort at an objective legal conclusion, that conclusion and the concluder should be unimpeachable.

Bad faith--here, the conscious displacement of analysis with personal preference--is nothing but impeachable.

Finally, the answer for the legal analyst who can't live with the conlusion the law compels: resign.

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