John Yoo And The Torture Memo

Introduction

Having called the tune, Cintolo cannot be excused from paying the piper on the basis of his vocation…[We] emphatically reject the notion that a law degree, like some sorcerer’s amulet, can ward off the rigours of the criminal law. Legal ethics and how they are applied by international lawyers have become the subject of much contention since the infamous Bybee/Yoo memorandum drafted in 2002 by Jay Bybee and John Yoo otherwise known as the ‘torture memo’. This essay seeks to examine the issue of legal ethics through the lens of the experience of John Yoo and what this means for the provision of international legal advice in the United States (US) system. This examination will look at, first, the ethics of lawyers in the US system.

The US as one of the key founders of the Universal Declaration on Human Rights notably represented by Eleanor Roosevelt knew fundamentally more than most countries the importance of upholding, maintaining and advance the cause of human rights. It was understood from the early stages of the drafting of the Universal Declaration that it would not be self-executing, but rather would be implemented by a later treaty (or, as it turned out, a pair of treaties). These treaties 1966 International Covenant on Civil and Political Rights (ICCPR) and 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) became the foundations for international human rights law. Following the adoption of these two covenants by the UN General Assembly in 1966, efforts in the international community focused on ensuring the norms established by these covenants would apply to the law of armed conflict. The covenants were primarily focused on maintaining human rights in times of peace. The next fundamental part of the architecture of human rights and the law of armed conflict was the adoption of United Nations General Assembly resolution 3452 (XXX) of 9 December 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The

One of the primary claims in the statement was ‘a lawyer has a duty both to ask his or client what the client wants to do and assist the client in accomplishing his or her lawful objectives. Enforcement depends on lawyers telling clients not only what they can do but also what they cannot do.’ The view put forward by the statement was the Yoo was only engaged in telling the President what he wanted to hear rather than a balanced view which outlined not only the objectives of the administration, but the risks associated with the proposed course of action, potential areas of risk in the proposed action and how the proposed action might be challenged. These principles are the hallmarks of solid and defensible advice. This is not what was given by Yoo during his years at the OLC. A legend holds that J.P. Morgan said ‘I don’t…want a lawyer to tell me what I cannot do; I hire him to tell me how to do what I want to do’. The majority view is that Yoo became the J.P. Morgan lawyer for the President by not only endorsing but assisting in continuing the use of torture practices which were accepted in customary international law as abhorrent and never justifiable. The Yoo experience begs the question how can legal