Wednesday, September 30, 2009
Joseph Lavitt (University of California, Berkeley-School of Law Adjunct Faculty) has posted The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC During the Bush Administration (Maine Law Review, Vol. 62, No. 1, 2009) on SSRN. Here is the abstract:
At the time the administration of Barack Obama takes office in the United States, debate about charging members of the former administration of George W. Bush with crimes against humanity is as intense as such prosecution is improbable. This article first considers whether officers who were in command and control of the Executive Branch of the government of the United States during the Bush administration can be excused from criminal responsibility on charges of illegal torture, based on their claim to have acted in good faith reliance upon the advice of attorneys employed by the Department of Justice.
Focus then turns to the accountability, if any, of those attorneys in the Justice Department’s Office of Legal Counsel who opined that so-called enhanced interrogation of persons in the custody of the United States was legally permissible. The answer to this question turns not on the doctrine of command responsibility (as many have presupposed), but on its logical converse - whether subordinate members of an executive branch of government are responsible as principals for the conduct of superior officers who relied on their opinions.
Finally, the doctrine of the unitary executive is examined through the prism of the conclusions about legal responsibility reached on the first two questions. The projection of the “Fuehrer Principle” by John Choon Yoo and others into modern American scholarship and governance became the basis for putative criminality during the Bush Administration. That principle is so patently repugnant to American representative democracy and constitutional republicanism as to render invalid any legal opinion or action based even in part upon it. Until that principle is decisively repudiated by a court that imposes punishment for criminal wrongs over a defense based upon it, the exercise of Presidential authority in times of crises in the United States will be likely to repeat the terrible mistakes of the all too recent past.