Ethics

Thanks to John and Brad for kicking off the discussion of DoJ's internal investigation of the torture memoranda.  I've only had time to give a cursory read to John Yoo's response to the Office of Professional Responsibility's report; one section that grabbed my attention was Yoo's argument that OPR failed to account for the factual circumstances surrounding the writing of the memoranda at issue. That may be a sensible argument to the extent that Yoo was limited in his ability to consult other experts (due to security/confidentiality concerns) or unusual time constraints. But that's not the heart of the argument about circumstances. Here's a snippet:

OPR quotes academics who wrote in the safety of their ivory towers in 2004, but not those in the real world who understood the enormous burdens facing government officials charged with protecting the Nation immediately after 9/11. OPR emphasizes that OLC attorneys were dealing with a "jus cogens norm" under international law, but give no credence to the importance of preventing another terrorist attack on American soil.

Of course political officials should be worried about preventing another terrorist attack, but should the lawyers advising those officials allow that worry to affect the advice they provide on whether a proposed course of conduct is legal?  Isn't this exactly when we want lawyers to stay level-headed and not wholly subject to the same worries driving the political officials?  Elsewhere in the response, Yoo argues that if the "OLC was unduly conservative in its legal analysis the result quite literally could be the loss of thousands of lives." Should the evaluation of the legal advice I give turn on the stakes of the matter on which I'm advising?

I can see how the stakes might shape the way I frame the issue for the client -- i.e., "my legal analysis says X, but since you believe that X risks thousands of lives, I've also come up with the best argument in favor of Y that I could, though in light of the current law, it's a weaker argument than X."  Yoo, in my estimation, seems to have effectively said, "Y, Y, Y, and for good measure, Y!"   As such, for the post-9/11 stakes to be relevant (other than the constraints regarding timing and confidentiality), isn't Yoo effectively asking for the stakes to determine the standard by which the accuracy of the advice is measured? Can that be right?