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Monday, December 26, 2005

Shame on Yoo

The WaPo has a lengthy profile of Berkeley Law Professor and architect of the Bush Administration's legal vision of absolute authority, John Yoo. In it, Yoo defends his legal interpretations by saying you can't judge him or his scholarship based on the results of his legal advice, but merely on the validity of his legal interpretation of black letter law.

Unfortunately for Mr. Yoo, he fails on multiple counts. Not the least of which because he failed to follow the cardinal rule of lawyering: present all sides of the issue, not just the ones your client wants to hear -- because it is the bad news that can be the most important thing in decision-making in any enterprise.

As an example, when I was in private practice, I represented a lot of criminal clients. Did I tell them only "we'll go to trial and win. I can absolutely guarantee that you will be found innocent?"

Not on your life, because your client needs to know all sides of every potential issue that you can think might apply before making any crucial decision. Without all sides, including the ones they clearly don't want to hear like "you could go to the penitentiary for a very long time" or "they have more evidence on you than any client I have ever represented, and we'd better think very seriously about cutting a deal," any decision made is uninformed and flawed as a result.

The same goes for when I worked as a prosecutor -- cops need to hear the truth as much as the criminals do. It isn't easy to give people bad news, but you do so because it is your job.

That same theory applies even when you represent the President's interests. Unless you are asked to present a single-sided briefing paper (which happens in legal circles, since often you want to consider the extreme ends of an issue in order to intellectually challenge yourself to look at all sides of the case), you should always include every caveat and critical thought on the matters presented. Always.

According to this latest WaPo portrait, it doesn't look as though that happened with Mr. Yoo. And that is shameful, to say the least. Yoo says:
Yoo believes he was correct, even if critics say the U.S. response to the Sept. 11, 2001, attacks "threatens the very idea of America," as one editorial said. "It would be inappropriate for a lawyer to say, 'The law means A, but I'm going to say B because to interpret it as A would violate American values,'" Yoo said. "A lawyer's job is if the law says A, the law says A."
Wrong. A lawyer's job is to say "the law says 'A,' but there are consequences to doing this, and here they are. Here are the countervailing views on this. Here is the history as to how this evolved. Here are the legal interpretations that disagree with my reading, including this little tome I like to call 'The Federalist Papers.'"

You do not adequately serve your client by telling him only those things he wants to hear. Period. The most important function you can have as an attorney is to tell your client all the things he does not want to hear -- for the sole reason that he must hear them in order to make a fully informed decision. To do less is to fail at your job.

Another cardinal sin is to believe that your argument is the only right one. One of the first things you learn as a litigator is that there is always another side. Always, always, always. And you must give due consideration to every side of an issue to adequately do your job. A true believer makes for an emotional argument, but not for a clear-headed, well-reasoned, intellectual argument in most cases.

But ultimately, the fault of poor decision-making rests with the client. In this case, the President of the United States, who has so cherry-picked the information that he relies on for any decisions, that it is no wonder we've seen such a skewed view of what it means to protect liberty and freedom. Consider:

-- Picking out only those intelligence analysis pieces that told him what he wanted to hear about WMDs, and supressing or pressuring those analysts that presented conflicting views. Cheney and Libby weren't hanging out at Langley because the commissary has good pie, you know.

-- Pulling out legal briefs that told him he could do whatever he wanted, and failing to seek out the legal opinions which told him no.

-- Listening to the civilian leadership at the Pentagon and the brass that has served as their mouthpieces, instead of taking the time to listen to brass in the field or retired military officers who frankly say things aren't being done to properly support military personnel putting their lives on the line. We have a whole new term for military personnel who try speaking truth to this Administration -- it's called "getting Shensecki-ed."

It is the President who makes the key decisions, and who is responsible for the ramifications of them. But John Yoo, who grew up in a rabidly anti-Communist household with parents who escaped Korea when he was but a baby should have known better.

Totalitarian government, in whatever guise, is not a friend of liberty. Just because what you are saying makes the Preznit happy because he gets to do what he wants, it doesn't mean it's good for him. Or the rest of the country, for that matter. Shame on Yoo, and every other enabler and excuse-maker for these actions.

We do not defend this nation and its principles by becoming the very thing we fight against. We did not do so during the Cold War, when the Soviet Union threatened us with total nuclear annhiliation (remember "duck and cover?"). We certainly should not do so now, under threat from terrorists who have been threatening us since well before the bombing of the US embassy in Beirut in 1983.

You want to talk about being unpatriotic? He who sacrifices liberty for political expediency and for accumulation of power is no patriot. This is the very thing the founders worried most about in designing our balanced government and look what we have now -- a George who would be King.

UPDATE: Josh Marshall has more on this at TPM. (Hat tip to reader Merciless for the heads up.)

UPDATE #2: TalkLeft has more as well.