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Unforgettable Yoo

Posted by Christopher Shea  February 24, 2009 01:25 PM

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No one can write about the law-professor/torture-memo-author John Yoo without reaching into the pun basket. But, people, there are standards even for the lowest form of humor. Suffice it to say that "Yoo Complete Me" fails the test.

That headline, however, sits atop an interesting piece: The George Washington University law professor Jeffrey Rosen's explanation of why Dawn Johnsen, the new head of the Office of Legal Counsel, will most likely not seek criminal charges against Yoo -- even though Johnsen has called Yoo a "rogue legal adviser" whose "shockingly flawed" work led to "horrific acts."

Rosen assumes that Johnsen will adhere to the jurisprudential standard that offering bad legal advice, even incompetent advice that leads to wrongdoing, is not a criminal act. But that seems to leave a question begging. What if the legal advice amounts to a recommendation -- done up in appropriate legalistic prose, naturally -- to go ahead and break the law? How would one distinguish such a recommendation from politically motivated incompetence? (I'm not speaking of Yoo's case necessarily, but hypothetically. Rosen's argument seems to depend on the assumption that such a distinction could never be made, and perhaps it couldn't be -- but that in itself is troubling.)

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