Judging John Yoo

In their notorious August 2002 “torture memo,” Justice Department officials Jay S. Bybee and John C. Yoo defined torture narrowly as pain associated with “organ failure, impairment of bodily function, or even death.” It was a strained and selective reading of the law, and it was rescinded in 2004 by Jack Goldsmith, Bybee’s successor as head of the Office of Legal Counsel.

But can Yoo, now a professor at UC Berkeley, be held responsible for the actions of others who relied on his legal reasoning? A federal judge in San Francisco seems to think so, but we have our doubts. As much as we were outraged by Yoo’s opinions, we worry that equating legal analysis with the acts of policymakers would set a poisonous precedent. Only if Yoo exceeded his role as a lawyer, which he may well have done, should he be subject to civil recriminations for his work.

Last month, U.S. District Judge Jeffrey S. White cleared the way for Jose Padilla, a U.S. citizen and Muslim covert, to sue Yoo for violations of his civil rights. Padilla, who is now serving a prison term after a terrorism conspiracy conviction, was held for more than three years as an enemy combatant in a brig in Charleston, S.C., where he says he was subjected to outrages including sleep deprivation, extreme temperatures and threats that he would be tortured if he didn’t cooperate. In refusing to dismiss the civil suit, White noted that Padilla accused Yoo of taking part in Padilla’s designation as an enemy combatant and serving on a policymaking “war council.” Those allegations deserve to be explored in a lawsuit. But the judge also referred to Yoo’s alleged role in “drafting memoranda designed to evade legal restraints and to immunize those who implemented them.”

White wrote: “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.” True. But offering a legal interpretation, even a flawed or foolish one, isn’t conduct; it’s an intellectual enterprise. Conscientious lawyers shouldn’t have to fear that their judgment of what the law allows will implicate them in policies they may abhor -- or in abuses that go beyond what the policies allow.

The exception to that principle occurs when a lawyer deliberately distorts the law in order to further a preferred policy goal or flatter a political patron. Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department’s Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.