44 Pages Posted: 23 Sep 2009 Last revised: 25 Aug 2010
Date Written: September 17, 2009
At the outset of the administration of President Barack Obama, there is intense debate about whether to prosecute members of the former administration of President George W. Bush who allegedly violated a variety of penal proscriptions that protect human rights. 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 a “leadership 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, as conceived by its proponents, is patently repugnant to American constitutional republicanism. Until a court 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.
Keywords: torture, unitary executive, waterboarding, Yoo, OLC
Suggested Citation: Suggested Citation
Lavitt, Joseph, The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC During the Bush Administration (September 17, 2009). Maine Law Review, Vol. 62, No. 1, Fall 2009. Available at SSRN: https://ssrn.com/abstract=1474940