Right to Defense in a Fair Trial

Guest author Tat Chee Tsui wrote this article. Mr. Tsui received his LL.M. from the University of California, Berkeley in 2010.

First, it is appropriate to disclose that I was a student of Professor John Yoo at Berkeley Law School. However I believe it would not have any effect on my point of view below if I provide sufficient grounds.

Professor Yoo was the Deputy Assistant Attorney General for former President George Bush. During his tenure, he made certain arguments (the so-called “Torture Memo” [1]) regarding the Guantánamo Bay detention camp. Professor Yoo has been criticized by the general public for this. Some professors and students at UC Berkeley, as well as people outside the school, urged Professor Christopher Edley, Jr., The Dean of Berkeley Law School, to remove Yoo from his position as a professor.[2] Simultaneously, Jose Padilla and Estela Lebron filed a complaint to the Northern District of California. The complaint alleged that Yoo: “Provided numerous legal memoranda that purported to provide to senior government officials a legal basis to implement an extreme and unprecedented interrogation and detention program.”[3] Some people would not spare Professor Yoo from punishment under the protection of freedom of speech. Professor Edley did give Professor Yoo that protection, even while not agreeing with Professor Yoo’s reasoning in the memo he produced as a member of Bush’s administration.

As a person trained in law school in Hong Kong, I view the situation from a different perspective. The Hong Kong legal profession, as that in England, is divided into two categories: Solicitors and Barristers. Barristers, as a trial lawyer, cannot directly enter into an engagement with clients without referral from solicitors or the government.[4]

An interesting point is that in order to enhance the idea that “everyone shall have an opportunity to have a fair trial”, a barrister cannot refuse to represent the client that the solicitors or the government referred without a reasonable ground, such as a personal interest:

[A] practising barrister is bound to accept any brief to appear before a Court in the field in which he professes to practise at his usual fee having regard to the type, nature, length and difficulty of the case. Special circumstances such as a conflict of interest or the possession of relevant and confidential information may justify his refusal to accept a particular brief.[5]

If we agree that President Bush should be entitled to an opportunity to defend his actions, then applying this principle to Yoo’s circumstance, it would be unreasonable to pin responsibility or liability on Yoo, when he merely worked for the best interest of the person he represented. This would be the case even if his argument, the “Torture Memo,” was not generally accepted.

In substance, there is no difference between holding Professor Yoo liable for defending the incident in Guantánamo Bay detention camp and holding a lawyer liable who represents a defendant everyone believes is guilty. Everyone is entitled to a fair trial and a proper defense. If a lawyer is personally liable for the acts of the defendant, it would not be fair for the defendant, who may have difficulty finding a lawyer willing to defend him. A pre-existing judgment by society generally would then replace a fair trial.

It is true that the judiciary system in Hong Kong and England is different from that in the United States and the Code of Conduct in Hong Kong and England is not directly applicable. Nonetheless, the United States Constitution also ensures that everyone shall enjoy the right to a speedy and public trial.[6]

Even if Yoo did not represent President Bush in the court when he was drafting the “Torture Memo,” the principle stated above shall constitute a ground as to why Yoo should not be found liable. Finding liability would cause a chilling effect on the legal profession. Creating personal liability deters lawyers from acting in the best interest of their clients.

Sometimes Yoo may not be right. Yoo gave the credit for killing Osama bin Laden to President George W. Bush because the government obtained information about where bin Laden was before President Obama signed an executive order in January 2009 “to close the prison at Guantanamo Bay and limit the CIA to U.S. military interrogation methods.”[7] First of all, Yoo might over-emphasize the effect of torture when it does not guarantee a possible result. Secondly, it is preferable to enhance protection in human rights even when an extreme method may provide some temporary benefit like identifying the home of bin Laden.

“Plato is dear to me, but dearer still is truth”, as his student, I cannot agree with Professor Yoo simply because he is the teacher. On the contrary, no one shall be prohibited from expressing his/her ideas that the general public does not agree with.  Not listening to others may be the initial stage of becoming stubborn. After all, what value is the protection of the First Amendment if we are unable to listen to others’ viewpoints?

[1] American Civil Liberties Union, The Bush Admin’s Secret OLC Memos, http://www.aclu.org/accountability/olc.html (last visited Feb. 18, 2011).

[2] University of California, Berkeley, School of Law, The Torture Memos and Academic Freedom, http://www.law.berkeley.edu/news/2008/edley041008.html (last visited Feb. 18, 2011).

[3] The New York Times, Complaint: Padilla v. Yoo, http://graphics8.nytimes.com/packages/pdf/national/Padilla_v_Yoo_Complaint.pdf (last visited Feb. 18, 2011).


[5] Id., at s.21.

[6] U.S. Const. amend. VI

[7] John Yoo, From Guantanamo to Abbottabad, WALL ST. J., May 4, 2011, available at http://online.wsj.com/article/SB10001424052748703834804576301032595527372.html (last visited May 28, 2011).

This article was originally published on June 6, 2011. It was updated on June 7, 2011.