Torture Memo Authors Cleared, Debate Continues

The Justice Department rejected sanctions against John Yoo and Jay Bybee, two Bush Administration attorneys who wrote what have become known as the torture memos.

The decision has reinvigorated the debate over harsh interrogation methods and executive power.

Guests:

Ari Shapiro, NPR justice correspondent

John Yoo, professor at the University of California Berkeley School of Law

Jameel Jaffer, director of the ACLU National Security Project

Copyright © 2010 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan, in Washington.

After years of internal debate, the Justice Department last week rejected sanctions against John Yoo and Jay Bybee, two former Bush administration attorneys who wrote what have become known as the torture memos: legal opinions drafted after 9/11 that effectively authorized the use of harsh interrogation techniques on terrorism suspects.

Associate Deputy Attorney General David Margolis concluded that Yoo and Bybee demonstrated poor judgment, but that their work did not rise to the level of professional misconduct.

That conclusion overruled the recommendations of the Justice Department's Office of Professional Responsibility and set off a fierce debate. Some argue that Yoo and Bybee told the White House what it wanted to hear and provided legal cover for abuse. Others believe that government lawyers should not be punished for providing honestly held opinions, no matter how unpopular.

Today, we'd like to hear from attorneys. When a lawyer is asked for an opinion, where is the line between poor judgment and misconduct? Give us a call: 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our Web site. Thats at npr.org. Click on TALK OF THE NATION.

Later in the program, a survey of the religious beliefs of young adults finds fewer in the pews, but widespread belief in the afterlife and in miracles. But first, the government closes the books on the torture memos. NPR justice correspondent Ari Shapiro joins us here in Studio 3A. Thanks very much for coming in.

ARI SHAPIRO: Pleasure to be here, Neal.

CONAN: And in this finding, what's the difference between professional misconduct and poor judgment?

SHAPIRO: Well, in very real-world terms, one carries consequences, the other is sort of a finger-wagging. Professional misconduct means you could be referred to the bar association that licenses you as a lawyer, which could, in theory, disbar you and prevent you from practicing law in the future.

You know, in the case of Judge Jay Bybee, who is a federal appeals court judge on the 9th Circuit in California, that could mean the end of a career. For somebody like John Yoo, who is in academia, perhaps not. But one way or the other, it is a serious consequence to be found guilty of professional misconduct. To be found guilty of poor judgment, as I say, is sort of a finger wag, but no real real-world consequences for that.

CONAN: And remind us: What was actually contained in these memos?

SHAPIRO: It was a very, very detailed list of what could and could not be done in interrogations for Abu Zubaida, who was one of the first high-level detainees captured after 9/11, and then other detainees subsequent to that.

There were waterboarding, as we all know, locking the detainee in a small, confined box, temperature exposure, nudity. These are all things that we had heard about during the Bush administration, but the memos themselves were declassified early on in the Obama administration. And then we got to see exactly, line by line, what was in these memos.

CONAN: And the memos argue these are harsh interrogation techniques. They do not amount to torture. Torture is illegal.

SHAPIRO: That's right. The memos give an interpretation of the torture statute and other relevant laws, and they say: Given that torture is prohibited, where is the line? How do we walk right up to that line and not cross it?

But they draw the line in a place that many other legal commentators have considered to be well across what they say a fair reading of the statute would require.

CONAN: And we talked about the debate that followed Mr.�Margolis' decision. Nevertheless, there's a lot of debate within the Justice Department - indeed, within the administration.

SHAPIRO: That's right. You read first this nearly 300-page report from the Office of Professional Responsibility, which goes into very, very excruciating detail about who suggested what, how these memos were formed, what the CIA and the White House requested, and then what the lawyers in the Office of Legal Counsel came back with.

You read that nearly 300-page report, which concludes that yes, in fact, you and Bybee did commit professional misconduct. And then you read this 70-page memo by David Margolis - who is the career attorney who served roughly 40 years at Justice, who oversees the Office of Professional Responsibility - and David Margolis concluded that, well, in fact, they were not intentionally distorting the law, that they may have done shoddy work. They may have used poor judgment. The memos may be very poor and may be very flawed, as Margolis says, but that at the end of the day, they were not intentionally distorting the law.

CONAN: It's important to remember, the memos were withdrawn during the Bush administration, by their successors.

SHAPIRO: Which is very unusual. That's right. President Bush appointed Jack Goldsmith to the Office of Legal Counsel. Jack Goldsmith came into the office, saw these memos, and they were quickly withdrawn, which doesn't often happen at the Office of Legal Counsel.

The Office of Legal Counsel is a very elite law firm within the federal government, and its job is basically to tell the entire executive branch what it can and cannot do.

CONAN: But its client is not the White House. Its client is - theoretically, at least - the Constitution?

SHAPIRO: That's right. Well, you know, its client is the White House, but the White House, the president has taken an oath to uphold and defend the Constitution. And so in serving the White House, the Office of Legal Counsel needs to draw a line at not giving advice that would violate the Constitution or the laws.

CONAN: Now, David Margolis, he had authority to overrule this decision?

SHAPIRO: That's right. You know, this was a very unusual investigation for the Office of Professional Responsibility. This is the internal ethics office at the Justice Department, and typically what they do is - it's done in quiet. Nobody much cares about the work that they're doing. Certainly, the investigations are not the subjects of hearings on Capitol Hill, leaks to the media. And so this was an extraordinarily high-profile investigation for the Office of Professional Responsibility.

David Margolis, for the last 20 years or so, has always overseen this office's work, but never in quite so high-profile a way as he did now. And he's somebody who I have gotten to know over the five years or so that I've covered the Justice Department. And I think it is safe to say that he understands this decision may well be what he is remembered for in his career more than anything else.

I have no doubt it was a difficult decision for him, but I will also say that he is the farthest thing from a political hack. He personally identifies as a Democrat, but I think even more than that, he feels an incredibly strong loyalty to the Department of Justice itself and what it stands for.

And so I'm sure that this was a very difficult decision for him to make, which may explain why this memo is 70 pages long, explaining how he reached the decision he did.

CONAN: How common is it for a new administration to go back and say: You know those people in the previous administration? We may want to charge them.

SHAPIRO: Well, the Justice Department was not looking at criminal charges here. They were looking at whether lawyers had violated professional ethics.

Now, that's pretty common with, you know, assistant U.S. attorneys - say, federal prosecutors who are out in the country who may have withheld exculpatory evidence from the defense lawyers in a prosecution of a case, but for an investigation of the Office of Legal Counsel, for an investigation of this size, of this scope, of this intensity, is extremely unusual. In fact, I'm not aware of any prior OPR investigation into the Office of Legal Counsel comparable to this one.

CONAN: And is this the final word?

SHAPIRO: Well, it's the final word for Yoo and Bybee, as far as being exonerated professionally in this narrow investigation. There are other, ongoing investigations, for example, into interrogators who may have gone beyond the guidance that Yoo and Bybee offered in the interrogation memos. This investigation and this report may inform what happens in those other investigations into the interrogators.

There's also a private lawsuit against John Yoo by Jose Padilla, who you may remember was arrested in Chicago during the Bush administration, held as an enemy combatant. That's a private lawsuit. The question is whether Yoo can be held personally accountable for things he did in his government capacity.

So there are some loose threads, but as for this particular investigation, it can't be appealed. It can't be reopened. It's essentially done.

CONAN: Well, Ari, stay with us. Joining us now is one of the subjects of the Justice report, John Yoo. He served as deputy assistant attorney general in the DOJ's Office of Legal Counsel from 2001 until 2003, now a professor of law at the University of California, Berkeley, the author of "Crisis and Command: A History of Executive Power from George Washington to George W. Bush," and joins us today by phone from his office. And Professor Yoo, thanks very much for being with us today.

Professor�JOHN YOO (Law, University of California, Berkeley; Former Deputy Assistant Attorney General, Office of Legal Counsel, DOJ): Oh, Neal, thanks for giving me the chance to come on.

CONAN: And I wonder: Do you feel vindicated by this ruling?

Mr.�YOO: I do, and let me explain why. I think that OPR, as Ari just mentioned, conducted an unprecedented investigation. I think it tried to second-guess these very difficult decisions that were thrust on us by in the Justice Department by the 9/11 attacks, and I think as Mr.�Margolis recognized, this investigation made numerous errors.

I mean, it took 67 pages for him to go through all the mistakes that the investigators made. And so I feel that the Justice Department - which I highly respect as an institution and loved while I worked there - reached the right outcome in the end. But it took five years of investigations to do it.

CONAN: So you agree with the verdict of poor judgment?

Mr.�YOO: Well, I don't obviously agree that I had poor judgment. I mean, I think once we agree that we're all arguing as professionals, that lawyers argue about things all the time. We're talking about some of the hardest questions that any government lawyer could face.

You know, we have the highest court in the land, the Supreme Court. That's why we have majority and minority opinions, because people disagree. And you know, if poor judgment was the strongest term that Supreme Court justices used, the opinions would be a lot shorter.

CONAN: I suspect you're right about that. Nevertheless, there is no shortage of critics, as I'm sure you know. There are people who have come out furious with this ruling, and saying essentially that the authors of this policy get off scot-free while some of those who acted under its strictures are serving time in prison.

Mr.�YOO: Well, of course people are going to be unhappy. Let me say, when we were confronting these questions in the first few months after the 9/11 attacks under these enormous pressures - I've talked about it before with you on your show. You know, we were under these great pressures.

We knew no matter what line that we drew between what was illegal, what was illegal torture and what was permissible interrogation, someone was going to be angry at us. But - and this again goes to our professional duty, is we had to answer this question. I mean, we couldn't sort of run away from it and say we're not going to answer or say, well, come back us years later when we have the benefit and luxury of hindsight.

We had to do that job in an area where the law was written in very vague terms. The statute contained no examples of what was prohibited, interrogation methods that were close to the line. And there were very few judicial precedents, almost none at the time.

CONAN: I know you've written about this. Indeed, one of the interesting findings of David Margolis was, in fact, that it didn't appear to him that you were providing answers that you - were foreign to you, that you'd expressed opinions about the powers of the executive branch that were in line with what you discussed in these memos before these questions came to you, and have, indeed, done so afterwards.

I know you've written a book about this. We just mentioned the title a moment ago. Have you had any second thoughts?

Mr.�YOO: Well, of course I think about this all the time, my time in the government and whether we should have done things differently. It is true, as you say, Neal, that throughout my career, I've always taken the view that the president has the primary constitutional role to protect the nation's security, and this last book that just came out last month, this "Crisis in Command," tries to show how that's been the case with many of our greatest presidents.

But in terms of whether I would have drawn the line different, as Mr.�Margolis even himself says, if one knew that these memos, which were classified at the highest levels of our government, if one knew that they were going to be issued publicly, of course you would have written them differently, just like the Bush administration did later. But I think I still would have drawn the line in roughly the same place. And I'd be the first person to admit it's a hard question, and I don't doubt the good faith of the people who disagree with me.

It's just, it's such a difficult question, and we had to make it. I knew it was going to be controversial, and obviously involves matters of life and death and of the greatest consequences for the security of the country.

CONAN: We're talking with John Yoo about the upshot of the torture memos. The Justice Department closed the case this past weekend. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We're discussing the Justice Department's decision to close the book on the torture memos. The internal review ruled that the lawyers who wrote these documents, Jay Bybee and John Yoo, showed poor judgment but not professional misconduct.

John Yoo is with us today. Ari Shapiro is also with us, NPR Justice Department. John Yoo is now professor at the University of California, Berkeley School of Law. He also wrote the book "Crisis and Command: A History of Executive Power from George Washington to George W. Bush."

So attorneys, when a lawyer's asked for an opinion, where's the line between poor judgment and misconduct? Give us a call, 800-989-8255. Email is talk@npr.org. And we've got a caller on the line. This is Diana calling from Chapel Hill in North Carolina.

DIANA (Caller): Hi. I actually am someone who filed a bar complaint against Professor Yoo because I was so disturbed by the advice he gave the Bush administration, and when I hear now that he did this in response to the pressure of the time, that only enforces my idea of a lack of professionalism on his part, because it's the lawyer who is supposed to have the cool head, especially a government lawyer, and I don't think, if this is his excuse for that horrible advice, then that's no excuse at all, as far as I'm concerned.

CONAN: Well, John Yoo, you can explain yourself.

Mr.�YOO: Yeah, I mean, I don't detect a question in there, but I'll take it...

DIANA: There wasn't a question.

Mr.�YOO: Well, that's too bad then. You had your chance. But I'll just use it as an opportunity to explain a little bit more.

First of all, obviously you have to take into account the circumstances of when we had to decide this question. I mean, if we had five years, like the Office of Professional Responsibility, to work on this, obviously we could have read more things...

DIANA: Well, I think that's what I think a mob lawyer would say.

CONAN: Diana, excuse me. You have to give him a chance to respond, okay?

DIANA: (Unintelligible)

Mr.�YOO: Circumstances matter, and if you had much more time and resources, you could do a much more complete job than you could.

The second thing I'd say is the Bush administration, I think two years later, as you pointed out, Neal, withdrew the opinions and issued a new opinion, where they had more time, and actually I think I recommend that you actually read Mr.�Margolis's judgment, because on the points where the second memo that was issued to the public and our memo disagreed, Mr.�Margolis actually several times comes down on the side of our memo and says actually that the 2002 work actually was much closer to what he thinks the right answer is.

The last point I'll make is at the time we decided this question, there were no federal court opinions that interpreted this statute. There have been some since. And one other thing that Mr.�Margolis I think rightly points out, that OPR ignored, in fact, was that federal circuit courts, like the Court of Appeals for the Third Circuit in Philadelphia, actually adopted interpretations of this statute, which were essentially the same ones as the ones we tried to develop back in 2002.

CONAN: Diana, what was the upshot of your complaint?

DIANA: I got a one-letter, a one-page letter back, no problem from the Pennsylvania Bar.

CONAN: No problem, they found no problem with it?

DIANA: I don't even know that they looked at it.

CONAN: Okay, all right.

DIANA: But you know, I think it's very disturbing because I really, when I used the mob lawyer example, I really feel that at that moment, when a client asks for your advice, you have to be you have to have the guts to push back on a wrong something wrong that a client's doing, and I think it was clear here what an attorney should have done.

When I read those memos, my blood ran cold. I thought: This is not a professional attorney's opinion. This is a political hack.

Mr.�YOO: Let me explain myself just a little bit more. First, I really urge you to read all these reports that were issued on Friday. You have some of the most senior lawyers in the Justice Mr.�Margolis is the senior ranking civil servant lawyer in the Justice Department.

As Mr.�Shapiro said, he is the heart and soul of the department. I don't personally know him, but he has the reputation of being like the Yoda of the department, and it was not he does not share the view that these were the work of partisan lawyers.

He disagrees with it on some of the merits, but in terms of whether these are valid legal arguments and whether we did our jobs as best we could during the times, that's his view. I mean, that's his job (unintelligible) he reviews all those decisions made by the Office of Professional Responsibility.

But let me ask you. I think there's a deeper question here that Diana's asking, which is: What do you do if you think the client wants to do something wrong?

Now, if it was something we thought was legally wrong, then we would tell the client that we thought that was wrong and they couldn't do it. But if you think it's morally wrong? I think that's a very difficult question, and I would say two things.

One is, I think, obviously, any government official, when they're asked for advice, can tell other members of government I disagree with that policy, I think it's morally wrong, I think it's mistake.

But the thing I don't think you have the right to do is to misinterpret the law to achieve what you think is morally correct.

DIANA: (Unintelligible)

Mr.�YOO: I think the laws reflect Congress, and it's in the Constitution...

DIANA: (Unintelligible)

Mr.�YOO: And I think you give your best interpretation of that law.

CONAN: Diana, one at a time, please.

Mr.�YOO: And give your best interpretation of the law, and then I think if you think that the policy choices that the government is going to make within the scope of legality are mistaken, then I think you have every right to tell them, but you don't have the right to say: Because I'm a lawyer, you have to do what I say when it comes to the moral or ethical policy choices.

DIANA: (Unintelligible)

CONAN: Diana, now it's your turn.

DIANA: Okay, let's start with the Constitution, and I think the big hole I saw in the memos you wrote were a failure to recognize that treaties, and important treaties that were at issue that you were to interpret, are on an equal footing with the law of the land.

Mr.�YOO: You think treaties are treaties are on the same stature as the Constitution?

DIANA: Yeah, that's in the Constitution.

CONAN: Now, John, you have to let her go.

Mr.�YOO: I'm sorry.

DIANA: That's all I wanted to say, and I think that's what Professor Yoo fails to recognize, is that treaties really are not negotiable once they've been passed and are in effect.

CONAN: All right, Diana, thanks...

DIANA: They are exactly as firm, have as much force of law as any statute passed by Congress.

CONAN: He would argue that's not quite the same as the Constitution, is what I think I heard, but...

Mr.�YOO: I hope so.

CONAN: John Yoo, one last point before we let you go. What precedent would it have set had the initial ruling of the Office of Professional Responsibility, had that gone ahead, had you been found guilty of professional misconduct?

Mr.�YOO: You know, I'm glad you asked that question because, you know, one thing you always ask yourself is: Is it really worth it to fight this kind of investigation?

And I have to say, one reason that I thought I was doing it was to protect the ability of the president, in this case President Obama, not President Bush, to be able to pursue the war on terrorism, the war in Afghanistan and the war in Iraq in the most effective way possible.

If people in the field people not just in the government but people in the field were worried about their judgment and ethics being questioned after the fact through criminal prosecution or through judicial I'm sorry, through Justice Department investigations, it would, I think, really harm the ability of our government, our forces, our intelligence agencies to protect this country in the midst of three wars.

CONAN: John Yoo, thanks very much for your time, appreciate it.

Mr.�YOO: Neal, thank you very much. I'm glad to be here.

CONAN: John Yoo, professor of law at the University of California Law School and joined us from his office in Berkeley.

With us now, Jameel Jaffer, director of the National Security Project at the ACLU, which has been critical of the Justice Department's findings. He's with us from our bureau in New York. Thanks very much for being with us.

Mr.�JAMEEL JAFFER (American Civil Liberties Union): Thank you, Neal.

CONAN: And I wonder: What precedent do you think has been established by the decision that this was not professional misconduct but rather poor judgment?

Mr.�JAFFER: Well, you know, I think that the I think that David Margolis essentially provided the wrong answer to the wrong question. I think that it's the wrong answer because it's just crazy to think that lawyers can get disciplined for putting their clients' money, for example, in the wrong account but not for authorizing torture.

And I think it's the wrong question because even by looking at this as a question of legal ethics, we're effectively acknowledging or conceding that John Yoo is providing legal advice, which he wasn't.

These were not memos that can be fairly be described as independent legal advice. Instead, what they are is an effort to immunize interrogators for conduct that everybody knew was illegal.

Now, one thing that I just wanted to respond to, if you'll let me, Professor Yoo suggested this was just a matter of disagreement on a policy, on a matter of policy, and I don't think that that's I don't think that's a fair way to characterize this.

Authorizing torture isn't like advocating universal health care or public education or a flat tax. There are federal laws against torture. There's a torture statute, which Congress enacted in 1994. Torture is a war crime under the Geneva Conventions. The U.S. is a signatory to the Convention Against Torture.

CONAN: Those conventions and that law do not specify exactly what torture is, and as I understand it, that's what John Yoo and Jay Bybee were asked to do.

Mr.�JAFFER: Well, actually, I think that Mr.�Yoo misstated, misstated the state of the law before those memos were written. There had actually been prosecutions in the United States of people who had used waterboarding as an interrogation method.

After the Second World War, Japanese soldiers were prosecuted for having waterboarded American soldiers. There are also State Department human rights reports that criticize and condemn other countries for using the same kinds of methods that John Yoo and his colleagues authorized.

So I think that and I'm not alone in saying this. Jack Goldsmith, who as Ari mentioned earlier, took over the Office of Legal Counsel after John Yoo left, also concluded that the memos were indefensible as legal advice.

So I don't think that it's accurate to characterize these memos as legal advice. I think that John Yoo was a player, a central player, in authorizing, in authorizing torture. And we don't have policy disagreements about torture any more than we have policy disagreements about rape or genocide. These are things that are foreclosed by American criminal law. So we're not talking about criminalizing policy differences, we're talking about enforcing laws and enforcing the laws that differentiate democracies from tyrannies.

CONAN: Well, what about Mr. Margolis's conclusion that these were opinions along the lines of those expressed by John Yoo before he was in the Office of Legal Counsel and afterwards that these are consistent with what he's argued throughout?

Mr. JAFFER: I think that Mr. Margolis is exactly right about that. But I think that it's a little strange to treat John Yoo's extreme ideology as a mitigating factor, which is what David Margolis does. Margolis treats as a mitigating factor the fact that Yoo actually believed what he was writing.

And it's unusual, to say the least, to see ideology presented as a defense to a charge of ethical misconduct. Ideology is certainly not a defense to criminal charges. And the fact that John Yoo may have believed what he was writing is no defense to a charge that he violated the torture statute.

CONAN: Let's see if we can get another caller in on the conversation. This is Troy(ph). Troy with us from St. Cloud in Minnesota.

TROY (Caller): That's correct. Thank you. I just wanted to make a few comments. The first is that I'm an attorney in the private sector. And my understanding of my role when a client, whether it's an insurance company or a private client, asks for my opinion isn't necessarily to give them my idea of what the law is or what it should be, but it's what another group of people - i.e. the courts - will interpret it to be. And in Mr. Yoo's case, he didnt have the benefits of knowing what the circuit courts - or he didn't have the benefit of knowing what the answer was because the circuit courts hadnt ruled on that statute. So I think that's important to keep in mind.

And then, also I was just going to point out the chilling effect that is created when you start questioning opinions that were given in good faith by lawyers. You're going to have lawyers that are sort of judging which way the political winds are blowing now, which way they're going to be blowing in the future at the time they're giving their opinion. So...

CONAN: And Jameel Jaffer, you talked about those trials of Japanese. They were in the context of war crimes trials held after World War II and not in the U.S. judicial system.

Mr. JAFFER: That's right. But there were also prosecutions in the U.S. judicial system. There's a state court judgment, which I think goes unmentioned in John Yoo's legal memo, that involves a prosecution of somebody who waterboarded a prisoner in a state prison. So there's no shortage of legal authority. And ultimately, the important point here is that what John Yoo authorized was generally recognized not just in U.S. law but also under international law as torture. And there's really no dispute about this. The attorney general has characterized waterboarding as torture. The Bush administration's official who is in charge of the Guantanamo military tribunals characterized as torture the treatment of Muhammad al-Khatani(ph) at Guantanamo, treatment that was based on John Yoo's legal memos. So I don't think there's really any dispute here.

And one thing I do agree with Professor Yoo on is that it's worthwhile to read the OPR report, the report that sets out in great detail how these memos came to be written. Because I think that it's difficult to read - and the reason I recommend the report is because I think it's difficult to read that report and come to any conclusion except that Professor Yoo participated - was a central player in developing memos that were used and were intended to be used to result in the torture of prisoners.

CONAN: And Jay Bybee who is now a federal judge. You're listening to TALK OF THE NATION...

TROY: But...

CONAN: ...hold on just a second, Troy. We're talking about the closed book, at least at the Justice Department, on the torture memos. You're listening to TALK OF THE NATION from NPR News.

Troy, I'm sorry.

TROY: Oh, that's fine. Thank you. I was just going to make the point that a state court's decision is not what I would consider binding authority, especially when hes looking at it in the context that he was looking at it as. What he would need is a federal court decision. It's certainly not unheard of. In fact, it's commonplace for a district court judge at the federal level to completely ignore or find the complete opposite finding of a state court judge. It happens all the time. I don't know that I'd put my eggs in the state court ruling's basket.

CONAN: All right, Troy. Thanks very much for the phone call. We appreciate it. Let's see if we can go next to Leo(ph). Leo calling from Tucson. He's very patient on the line. I'm sorry. Go ahead, Leo.

LEO (Caller): Hi, this is Leo. Am I on the air?

CONAN: Yes, you are.

LEO: Hi. I'm a criminal defense attorney here in Tucson. And the question that I had was originally for Mr. Shapiro. And I'm really curious, just practically speaking, what the real implications are for Mr. Yoo, because that's the real question is, you know, he didn't get found, you know, in violation of any attorney, you know, standard or anything like that in terms of a statute. But the gentleman found that he had given poor advice. And what I wanted to know is if anyone thinks that Mr. Yoo will change the way he practices law based on this. And if he doesn't, isn't he on notice now that his work in those torture memos was apparently found to be shoddy work and bad work, and just kind of ignoring for the moment the substance of the report which I disagree with?

I mean, I don't think that Mr. Yoo was under any on, you know, abnormal time pressure for an attorney. I think that the premise of some of the things that he said was invalid which is inherently bad legal advice for a client. And I'm just hoping that people who listen to him in the future will realize that he did very poor work in this case that's public now, and that hopefully his practice of law will change for the better in the future...

CONAN: As I understand, Ari, he's not practicing law. He's teaching it.

SHAPIRO: That's right. He's teaching at UC Berkeley Law School, and there are law professors who are not even certified lawyers. So to the extent that it will affect his practice of law, there isn't one to speak of at this moment.

CONAN: If, however, he - and I don't know this to be true. But if, however, he had hoped for a judgeship in the future or to work at a higher office at the Justice Department, one that might require confirmation by the Senate...

SHAPIRO: It's probably safe to say the Senate is not likely to confirm him any time soon, at least as long as the Democrats have a majority or even a substantial minority. You know, I wanted to respond to one idea that has come up a couple of times as we have discussed this issue, which is this notion that you can't have government lawyers looking over their shoulder every time they do something, which to a certain extent is true. But I think everybody agrees that there becomes some level somewhere where a government lawyer authorizes something so egregious - imagine whatever you want it to be that there does have to be accountability.

And so then the question is, well, is this, is the torture memo, is this legal advice in enough of a borderline gray area that it's worth looking into whether it is so egregious that a person must be held accountable even though, as we all agree, we don't want lawyers looking over their shoulder for everything?

CONAN: No.

SHAPIRO: And even David Margolis, who exonerated these guys, says it's borderline. It's a tough call.

CONAN: Ari Shapiro, with us here in Studio 3A. Thanks as always for your time.

SHAPIRO: Good to be here.

CONAN: And our thanks as well to Jameel Jaffer, director of the ACLU National Security Project at our bureau in New York. Thank you very much.

Mr. JAFFER: Thank you.

CONAN: When we come back, we're going to be talking about, well, the afterlife, miracles, heaven and hell and the beliefs of young adults, a new Pew opinion survey. Stay with us.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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