News concerning the liability of Bush Administration Justice Department lawyer John Yoo for any number of abusive acts perpetrated in the name of the "Global War on Terror" returned to the San Francisco Chronicle this morning. Here are the opening paragraphs of the report filed by Chronicle Staff Writer Bob Egelko:
A lawyer for former Justice Department attorney John Yoo asked a federal appeals court Monday to dismiss a prisoner's torture suit against him, arguing that a government attorney shouldn't be penalized for giving honest legal advice.
A "midlevel" Justice Department lawyer who "advises policymakers on matters of national security" isn't legally responsible for the consequences of those policies, attorney Miguel Estrada told the Ninth U.S. Circuit Court of Appeals in San Francisco.
These words served to remind me that any effort to prosecute Yoo, either civilly (as in this case) or criminally (as in the case of war crimes), needs to be examined under two separate lenses. The "easier view," so to speak, concerns how both sides of the case are argued. The more difficult one concerns the case itself in the broader perspective of moral judgment and any questions of alignment between legal and moral criteria.
By way of reference before examining the nature of the current argumentation, here is the summary of the plaintiff's position:
Jonathan Freiman, lawyer for plaintiff Jose Padilla, countered that Yoo was seeking a "perfect circle of deniability" for government perpetrators of torture and other illegal conduct.
Padilla, a U.S. citizen serving a 17-year sentence for conspiring to aid Islamic extremist groups, claims Yoo was responsible as both a policymaker and a lawyer for his brutal treatment in a Navy brig.
Under Estrada's argument, Freiman said, abusive interrogators and jailers could claim they were following legal advice, top officials could assert executive immunity and lawyers who knowingly recommended lawbreaking could walk away unscathed.
Estrada's argument was heard by a panel of three judges, one of whom quickly detected a fundamental flaw of misrepresentation. This came from Judge Raymond Fisher and involved the use of the adjective "midlevel:"
Yoo has written that he was "part of a very small group, the war council," which discussed the administration's counterterrorism strategies, Fisher said. The Padilla suit, he said, involves "a fundamental notion of accountability."
I would further argue (although the point did not come up in Egelko's report) that any matter of "honest legal advice" must also be evaluated against that "fundamental notion of accountability." This is consistent with the June 2009 ruling by U. S. District Judge Jeffrey White in refusing a request to dismiss the Padilla suit. White actually did not care whether or not Yoo's position was an elite one, even if it involved a war council. His position was that all government lawyers are "responsible for the foreseeable consequences of their conduct;" and this strikes me as one way in which the adjective "honest" can be used as more than a mere platitude.
Presumably, Yoo's position is that, when the President poses the interrogative, "Can I do this?," he is actually asserting the imperative, "Provide me with a sound legal justification for doing this." I take White's statement to imply that, even if Yoo's job description requires that he respond to that imperative (known as "following orders" during the Nuremberg Trials), "honest legal advice" would require that the President be informed of plausible "foreseeable consequences." This seems to be the essence of the quotation of William Shakespeare used in the title (taken from the fifth act of Cymbeline). The moral judgment that makes a servant "good" goes beyond whether or not the servant follows orders ("all commands"). In other words Estrada's reckless choice of words in arguing his case escalated questions of judgment to the case itself, when he was probably trying to keep the discussion restricted to the soundness of legal arguments.
The comparison with Nuremberg was not a mere rhetorical flourish. The case in question is a civil suit; and, while the Obama Administration has distanced itself from any talk of war crimes trials, there is still the possibility that such a trial may eventually surface. As we saw in the case of General Augusto Pinochet, the path that leads to arrest and trial is not always the one we anticipate. However, whether or not such a trial ever takes place, we cannot ignore questions concerned with how a phrase like "honest legal advice" (or even that adjective "good") can align with both legal and moral criteria. In this respect one paragraph from Yoo's Wikipedia entry (portions of which have been tagged for lack of neutrality and unreliable claims) may be worth considering:
Professor Yoo has been a member of the Pennsylvania Bar Association since his admission in 1993. The Department of Justice's Office of Professional Responsibility concluded in a 261 page report dated July 29, 2009 that Yoo committed "intentional professional misconduct" when he "knowingly failed to provide a thorough, objective, and candid interpretation of the law" and recommended a referral to the Bar for disciplinary action. However, career Justice department lawyer David Margolis  in a Memorandum dated January 5, 2010 countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor" concluding that Yoo had exercised "poor judgment," still he did not find "professional misconduct" sufficient to authorize OPR "to refer its findings to the state bar disciplinary authorities." Professor Yoo contended that the Office of Professional Responsibility had manifested "rank bias and sheer incompetence," intended to "smear my reputation," and that Margolis "completely rejected its recommendations." 
Apparently even highly skilled legal minds are having as much trouble with a phrase like "honest legal advice" as any ordinary reader would have!