Alaska News

Analysis does not mean making policy

The Anchorage Daily News has published two Compass pieces, one last week and one in November, condemning John Yoo and criticizing the Alaska Bar Association for inviting him to speak at the recently concluded convention in Fairbanks. I'm writing to provide balance.

The objections to Professor Yoo are based on his involvement in co-authoring the so-called "torture memo." The "torture memo" is really (depending on one's interpretation) a series of documents issued in 2002 and 2003 by the Office of Legal Counsel. Declassified segments are available online. Jay Bybee (later appointed to the Ninth Circuit Court of Appeals), John Yoo, and other government lawyers were charged with the responsibility of providing clarifying guidance on the limits of presidential powers. One of the underlying issues concerned what did or did not constitute torture. They were asked for an opinion. They did what lawyers do -- they outlined and addressed the issues based on the known or assumed facts, and tendered legal advice.

Professor Yoo and his colleagues did not advocate torture. Instead, they attempted to define concepts so that unconscionable acts could be prevented. In retrospect, perhaps that was their error. Some concepts resist definition. Regardless, the enhanced interrogation methods that they concluded did not violate law (including water boarding) are methods long-used by the military to train personnel in survival, evasion, resistance and escape.

Many commentators have now, with the benefit of hindsight, questioned parts of the analysis found in the torture memoranda. That is fair. No legal opinion is beyond criticism. People want black and white rules until the law applies to them, and then they crave ambiguity. However, most critics ascribe no blame, acknowledging instead that people were acting in good faith at a time of intense pressure in the aftermath of 9/11 (including Jack Goldsmith, who replaced Judge Bybee and rescinded the torture memos). We have never faced an enemy quite like al-Qaeda in a conflict of this nature.

Is Professor Yoo a war criminal? John Yoo made no decisions. He provided legal opinions for purposes of trying to define permissible conduct. If that leads to culpability, we had better be prepared for the consequences. They exhumed Cromwell. It is recklessly dangerous to attach the label "war criminal" to civilians acting at a policy level who are not making decisions. It smacks of Robespierre. If we as a society are prepared to condemn civilians for legal opinions, we will never attract the people we need to serve our country. And in such a society who would dare express legal opinions to guide those making policy decisions?

Years after Professor Yoo left government service, in what some have dismissed as a politically inspired witch hunt, the Office of Professional Responsibility (OPR) opined that Judge Bybee and Professor Yoo engaged in professional misconduct. The U.S. Department of Justice (USDOJ) reviewed OPR's opinion. It rejected OPR's analysis in a detailed decision issued on Jan. 5, 2010. USDOJ determined that part of the analysis in the torture memoranda contained "significant flaws," but that no professional misconduct was committed.

Of course, events of recent weeks have outstripped all of us. The director of the CIA Leon Panetta publicly declared that enhanced interrogation techniques helped develop intelligence that led to finding and killing Bin Laden. I regret we live in such times, but understand the imperatives compelling use of unique methods to protect life.


In my opinion, the Alaska Bar Association scored a tremendous coup by Professor Yoo's appearance. Professor Yoo's invitation was consistent with recognized criteria for any keynote speaker. His topic (presidential wartime powers) was timely and important. He is knowledgeable. An invitation to speak does not and should not imply agreement with a speaker. If it did, keynote speakers would be uninteresting. We cannot hide from unpopular views. Professor Yoo's address was well-attended and received. On the convention's last day the Bar overwhelmingly rejected a resolution expressing regret at having invited Professor Yoo to speak. We should be proud of the attempt made by Professor Yoo and his colleagues to define permissible conduct.

Gregory Fisher is a lawyer in Anchorage. The views expressed here are his own.