The Oath
As an additional consideration in the case of People vs. Yoo, a government attorney must meet not only the standards of professional responsibility that come with being an attorney, but also must comply with his or her oath, taken upon assuming office, to support and defend the Constitution. That attorney's duty is to the principles of the Constitution, as amended (and in this particular case, as amended by the 8th Amendment), and not only or merely to the President or, more correctly, the Presidency.
In practical terms, the purport of the oath in a constitutionally sensitive case is that the advising attorney must reflect in his/her work a wholistic and long-term understanding of both the relevant precedent and the precedential effect of the proposed instant action by others relying upon that advice. In other words, it is imperative to examine how history will judge and also how history of our Constitution will be altered by proposed conduct.
This sort of review and this sort of thinking is what it means to have a written Constitution and to live under a rule of law where that Constitution is a living and meaningful document. Did Professor Yoo live up to his oath? It's not the same question as asking whether a lawyer in private practice exceeded the boundaries of zealous advocacy.
This reminds me of the summer I watched the Tobacco Company CEO's raise their hands and swear to Congress that they didn't believe nicotine was addictive. Obviously they thought that because they were swearing about "beliefs" and not "facts" they couldn't be nailed for perjury. Who could prove they were lying? Well the fact is, giving all the info they had received, it was perfectly clear they were, in fact, lying about their beliefs.
Yoo and his cohorts will try to argue they were making colorable legal claims about the limits of the Constitution and the President's right to torture, commit illegal searches, suspend habeous corpus, etc. However, it is equally clear that the memo's he wrote were sham's, that the conclusions were requested in advance, and he used his intellect to cobble together a frail legal framework that supposedly gave "reasonably arguable" support for these abhorrent conclusions.
I believe Yoo and his cohorts believe that since hiss arguments are couched in well formed English language sentences having the format of legitimate legal arguments, that he can't be successfully charged with being part of a conspiracy to violate the Constitution.
However, if this is all laid bare, like the lies of the Tobbaco CEO's, his active and culpable complicity will be made evident.
I hope this is followed up.
Ron Feinman
Lynchburg, Va
April 13, 2008 10:34 AM | Reply | Permalink
This reminds me of the summer I watched the Tobacco Company CEO's raise their hands and swear to Congress that they didn't believe nicotine was addictive. Obviously they thought that because they were swearing about "beliefs" and not "facts" they couldn't be nailed for perjury. Who could prove they were lying? Well the fact is, giving all the info they had received, it was perfectly clear they were, in fact, lying about their beliefs.
Yoo and his cohorts will try to argue they were making colorable legal claims about the limits of the Constitution and the President's right to torture, commit illegal searches, suspend habeous corpus, etc. However, it is equally clear that the memo's he wrote were sham's, that the conclusions were requested in advance, and he used his intellect to cobble together a frail legal framework that supposedly gave "reasonably arguable" support for these abhorrent conclusions.
I believe Yoo and his cohorts believe that since hiss arguments are couched in well formed English language sentences having the format of legitimate legal arguments, that he can't be successfully charged with being part of a conspiracy to violate the Constitution.
However, if this is all laid bare, like the lies of the Tobbaco CEO's, his active and culpable complicity will be made evident.
I hope this is followed up.
Ron Feinman
Lynchburg, Va
April 13, 2008 10:34 AM | Reply | Permalink
I agree with Mr. Feinman and you too, Mr. Hundt.
No, John Yoo violated his oath. Our Constitution was written to prohibit one branch of government having more power than the others combined, which is inherently obvious as they constructed 3 branches. It is a balance.
Any attorney, in arguing for more power of one over the remaining two has violated one of the most fundamental structures of our government.
I do not think any semantic parsing can overcome that.
April 13, 2008 11:34 AM | Reply | Permalink
The damage Yoo did will not be repaired. For sure, this administration will do nothing to repair it. It is so unlikely as to be impossible that this Congress will do anything to repair it. And, the Obama administration will work to unite Americans, not divide us by prosecuting the Bush criminals, including Yoo.
The precedent has now been established. Presidents are free to ignore the Constitution, their advisors are equally free to ignore the Constitution. The Constitution from now on is merely a list of suggestions to be followed or ignored at the will of the President.
April 13, 2008 12:27 PM | Reply | Permalink
You know, if you squint a little, Reed Hundt's picture looks just like the character Deep Throat from the X-Files!
Sorry, I don't really have anything else to add.
Oh, except:
Is so true. Sad, but true :(
April 13, 2008 6:45 PM | Reply | Permalink
Isn't advocating lawbreaking grounds for disbarment? Certainly it would have to be adjudged illegal in a courtroom first, but maybe it would be grounds for bringing a case.
Yoo is just a tool though; a dimbulb law student playing in the big leagues with ruthless power brokers.
April 13, 2008 11:42 PM | Reply | Permalink