On Tuesday, the Pentagon released former Bush Administration Lawyer John Yoo's notorious March 2003 interrogation memorandum. Add this to the heap of evidence that Department of Justice lawyers helped legitimize questionable White House policies toward "enemy combatants." There may not be much new information to be gained from the declassified memo—with the exception of the disavowed footnote—but it did get me thinking about the consequences for lawyers who provide legal justification for illegal wartime actions.
Besides a good public shaming, there don't seem to be many consequences. After Yoo's stint at the DOJ's Office of Legal Counsel, he returned safely to his prior job as a law professor at the University of California, Berkeley. And with the signing of the Military Commissions Act of 2006, Yoo and his former colleagues seem untouchable.
However, there is one precedent that has gone largely overlooked, maybe to the future detriment of Yoo and Co.
In 1947, the United States charged several high-ranking German lawyers in a U.S. Military Tribunal with conspiracy to commit war crimes and crimes against humanity. Scott Horton, a prominent human rights attorney who lectures at Columbia Law School, suggests that Yoo may want to revisit the case. Under the ruling, writes Horton, "the conduct of [Yoo] is a criminal act not shielded by any notions of government immunity."
Horton also sites international lawyer and University College London professor Philippe Sands, who wrote a relevant Vanity Fair teaser for his upcoming book, The Torture Team. While conducting research, Sands met with European legal officials to discuss the doctrine of universal jurisdiction:
The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. "That is very stupid," said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.
"It's a matter of time," the judge observed. "These things take time." As I gathered my papers, he looked up and said, "And then something unexpected happens, when one of these lawyers travels to the wrong place."
Justice may be slow, and consequences may be scarce, but if Sands's judge is to be taken seriously, Yoo and his former colleagues at the DOJ may want to consider staying Stateside for a while.