Plausible deniability, and other reasons why warfare by midlevel legal memoranda is a really bad idea

By Dahlia Lithwick - Slate Magazine:

Pop quiz for the law junkies:

1) Name the lawyer in the Bush administration who was sanctioned, sacked, or prosecuted for anything related to the firing of nine U.S. attorneys last spring.

2) How about the attorney fired for allowing the destruction of thousands of White House e-mails or the CIA torture tapes?

3) The guy dismissed after advocating for warrantless wiretapping in violation of the FISA law?

4) Disciplined for gross civil rights violations through the misuse of National Security Letters?

Can't think of anyone? Me neither. Someday, when we look back at the Bush administration's "war on terror," we'll be unable to point to the "bad guys" because they will turn out to be a bunch of attorneys in starched white button-downs, using plausible-sounding legal analysis to beat precedent and statute and treatise from ploughshares into swords. And not one of them will be held to account. ...

Goldsmith [Harvard Prof. Jack, who took over as heard of Justice's OLC and rescinded the torture memos of his classmate and (former) buddy, John Yoo] argues that when government actors are hemmed in on all sides by domestic and international laws, they become immobilized and fearful. As he notes, "It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe."...

In short, the Bush solution to the paralysis of lawfare seems to be to hire lawyers who don't believe in the law. ...

With Yoo's legal "analysis" in hand, and the accountability for it diffused among many government officials, the system of legal memos promises to give cover to everyone at the top. As Rosa Brooks so wonderfully put it in the /Los Angeles Times/, it takes a village to adopt a torture policy. But accountability should not evaporate just because a lawyer wrote a memo at the start of the chain. ...


By most accounts, John Yoo is, in person, a really sweet, nice guy.
I hope the judges take that into account when he is finally hauled before an International Criminal Tribunal, somewhere outside US borders.
One hopes Boalt Hall will use his vacated faculty slot more wisely.