Wednesday, December 28, 2005

"Not saying much, but speaking as Yoo"--W.H. Auden

This is simply sophomoric:

"It would be inappropriate for a lawyer to say, 'The law means A, but I'm going to say B because to interpret it as A would violate American values,'" Yoo said. "A lawyer's job is if the law says A, the law says A."
The question of "what the law says" is a question of jurisprudence as well as a question of legal interpretation.

Both of those things can be taught, and are, in law school. It is the whole basis for an education in the law.

But no one trained in the law truly believes the law simply "speaks" and the lawyer simply reports that speech. Lawyers are not so many Delpic Oracles, dashing about proclaiming the utterances of the gods.

And judges, by the way, take "American values" into account almost as a matter of course. Witness the outcry when a recent Supreme Court decision cited rulings from European countries in its argument for the legal conclusion reached by a majority of the justices. The claim, from Mr. Yoo's side of the legal debate, was precisely that "American values" were weighed against "foreign values," something the critics considered wholly illegitimate.

The law is as much an expression of our values as Americans as the most pious statements about how noble, virtuous, and good "we" are.

The lawyer's job, of course, is to make an argument for his client. If he can establish that argument in a unique interpretation of the law, he should do so. But he cannot establish a legal argument based on a wholly unknown interpretation of the law that suits his predilections and tells the client what he wants to hear. That kind of "legal analysis" prompts practicing lawyers to contact their malpractice carriers.

Unfortunately for the nation, there is no malpractice in giving wholly unsound legal advice to the President. Especially when you never worked directly for the President.

The more complete examination of Yoo's legal analysis is linked here. But for simply uttering the sentence that a lawyer is bound by what the law "says"? Well, it's laughable.

It's simply laughable. Or would be, coming from anyone else than John Yoo, because:

"He has succeeded and won people over and advanced his ideas," said Manus Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch (R-Utah) in 1995. "As far as conservative academics, I don't think there's anyone in the law whose contacts run deeper in the three branches, or higher."
UPDATE: And this is simply one reason why no lawyer can argue that his interpretation is one of "black letter law" that no one else has yet found in that same law, yet his unique interpetation is true and can be trusted:

Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.

The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.

"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."

While some civil rights advocates, legal experts and members of Congress have said President Bush did not have authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."

He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."
That last bit could have come directly from John Yoo. And it is going to sound just as weak in a court of law, as it does in a newspaper article.

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