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The 10-year anniversary of my torture memo: a law school commencement address — by John Yoo (San Diego Source - The Daily Transcript)
By Dan Lawton
Wednesday, May 16, 2012

This commencement address is a work of fiction.

Deans, faculty, staff, students, parents, and friends: I am honored to address you today. Some of you might ask yourself, "What can this law professor, who has worked only in government and the legal academy, possibly tell us about the private practice of law, which is where I am headed?" The answer is, "Plenty." Let me explain. There are three keys to your future success.

The first is executing the desires of your client -- whatever they are. If you're a baseball fan you may recall Jim Fregosi, the one-time manager of the California Angels. On this topic, he said: "My owners and I think exactly alike. Whatever they're thinking, that's what I'm thinking." As a baseball fan myself, I well recalled these words 10 years ago, in 2002. At that time my clients were President Bush and Vice President Cheney. I was working in the Department of Justice's Office of Legal Counsel then. They asked me to report on whether our government is allowed to "torture" people despite the so-called "treaties" that, at a glance, would seem to forbid it. I figured they wouldn't be asking me to report on it in the first place if they thought the law put "torture" out of bounds. With that thought firmly in mind, I entered the library, or asked one of my interns to do it.

I didn't have a lot of time to do the research, and some people in Congress and so forth have criticized it, but frankly they are armchair quarterbacks. I was there and they weren't. I did the best I could. I had the interns use LEXIS, which tells you new developments up to the minute. After they finished doing the research, I dictated my memo, just like a lot of you will be doing not long from now. Like Jim Fregosi, I had been thinking the same thing my bosses were thinking. And that thing was: the President can have bad guys tortured, nevermind any laws or treaties, and there's pretty much nothing anybody can do about it legally, whether they're the International Criminal Court or a federal court or whomever. Needless to say, my bosses loved my work!

Other people loved it too. These included the CIA, who later called my memo its "golden shield" against prosecution. There's a client relations moment for you: the first time a big client tells you something you did is a "golden shield," you have got one happy client right there. A happy client, my friends, means you've done something right. And doing right is what our profession is all about.

As I look back on it, I missed a few things in my research, or, frankly, my interns did. This is not the sort of thing I would tolerate from one of my law students at Boalt Hall today, but that is beside the point. We were all stressed out after 9/11. Anyway, there was some fallout after my boss got a life-tenure appointment to the 9th Circuit. The lawyer who took his place said my memo was legally defective, "cursory," and "one-sided," and he withdrew it. The Navy's general counsel even said that I had used "catastrophically poor legal reasoning." The lesson here is you have to take some knocks in our profession, even when they come from a guy who is in the Navy and who went to law school at the University of Miami and not Yale.

Some day soon, your own clients will be asking you to analyze tough questions for them. Not questions as tough as, "Can I waterboard a man to death without liability, so long as the President says he is an enemy combatant?" But tough just the same. "Can we bulldoze these buildings without violating a TRO?" "Can we fire our office manager for gambling online on her shift?" And so forth. You will owe those clients the same thing I owed to my bosses in the executive branch in 2002: the answer that they want to hear. If it is sloppy, or wrong, these are problems. But you can overcome them. Indeed, you may even rise to a tenured faculty position in an esteemed law school despite them. In the meantime, remember the wisdom of Jim Fregosi: think what your clients are thinking! A happy client means a job well done. Happy clients pay their bills, send repeat business, and spread the good word about your legal skills to potential clients. I think you would agree all of these are noble ends in themselves, or at least critical to your future net worth. Mine is doing nicely, by the way.

The second key to your success concerns what to do when the going gets rough and you find your sworn duties in conflict with a client's goals. In some cultures it is considered a sign of honor to resign when asked to do something that clashes with one's perceived duty. Even in the Nixon Justice Department, it was considered honorable to quit rather than carry out an unjust order. Thank goodness Judge Bork put a stop to this narcissistic notion, which has no place in our legal system today. You must never resign! Resigning is a way of saying, "no." And your role is to say, "yes." If you resign, someone else is going to write that memo anyway -- and they may even write it better than you would have, which would be professionally embarrassing. Elliott Richardson wouldn't fire Archibald Cox, and neither would Bill Ruckelshaus, and what do they have to show for it? Bupkes, that's what. Quitters never win. And I can tell just from looking out there that this is a roomful of winners.

The third key to your success is your use of euphemism. Good word choice is everything. Nowadays nobody bats an eye at the word, "torture." But 10 years ago, many thought it a bad word. I realized that use of such a loaded term would turn people off. And so the euphemism, "enhanced interrogation techniques," was born! "Enhanced interrogation techniques" is a lot of extra syllables, of course. But if your casebooks have taught you anything, it is that extra syllables are the coin of the realm in legal writing. "Enhanced" sounds good. What isn't better when enhanced? "Interrogation" -- think Joe Friday or Jack Bauer, two ass-kicking cops. Did you ever see them interrogate someone who wasn't a bad guy? "Techniques" -- think baking something delicious, or lovemaking. Technique is important.

As a lawyer, you will have a tough bill of goods to sell from time to time. The right euphemism will buffer the medicine you have to deliver. It is a sweet-tasting coating that neutralizes the acid of the real word that dares not speak its name. Consider these: "Revenue enhancements." "Correctional facility." "Terminate with extreme prejudice." "Multiple anatomical separations." "Waxing the dolphin." Not all are authored by lawyers, but you get the picture. Colorful and pleasing to the ear is what you are going for.

Of course, these lessons are easier to say than to execute. Jim Fregosi, who always knew what his owners were thinking, could tell you that himself. He was fired four times. My fondest hope for you is that you will never be fired and that you will have a career as fascinating, rewarding, and free from repercussions as my own has been.

Lawton is the principal of Lawton Law Firm in San Diego. He specializes in intellectual property litigation and appellate litigation. He is an adjunct professor of law at Thomas Jefferson School of Law. He has no idea what John Yoo might actually say at a law school commencement exercise. He hopes none of his own memos are ever disseminated publicly.