Advice, policy and action

One major line of defense John Yoo offers for his role in torture relies on the distinction between advice and policy (authority to prescribe action). (See the prepared statement he made before his testimony to the House Judiciary Committee back in 2008).

The thought is that setting policy, but not giving advice, is related to action in a responsibility determining way. This is because policy not only endorses an action (as right/wrong, viable/unviable, legal/illegal), it motivates by being the reason for the action. In short, policy can be a constitutive part of an action which depends on it; it is the reason which explains the action. This connection explains why we tend to believe that if an action like torturing someone is wrong, then the authoritative policy which directly calls for it is also wrong.

On the face of it, advice is different. In an advisory role, the content of the advice is not taken to have motivational force. Additionally, I may not be advising you to do anything in particular but rather just laying out what I take to be your options. This is what John Yoo claims of his legal advice: it merely laid out an interpretation of legal options, and it was neither his intent nor within his authority to prescribe which options, if any, are to be taken. Yoo claims it follows that he cannot be held liable for the actions of those who were directed by policy to act in accordance with such advice. This is because, we can say, a ‘responsibility’ gap exists between advice and action, the gap filled by an independent judgment as to whether to follow the advice. So, if someone must be held accountable for the torture, it should be those who formulated the policy and carried it out. They have a direct responsibility bearing relationship to the vicious act.

Let’s examine the claim about advice. When someone asks for practical advice, it implies that he has not made up his mind on what to do. Typically, upon being offered a piece of practical advice, the advisee deliberates, takes the advice into consideration among all the other known considerations, and arrives at a decision about what to do. The process of deliberation arguably makes the advisee solely responsible for the ultimate decision. Plausibly, this shields the advisor from responsibility.

However, the conclusions are different when the advisor has practical authority over his advisee. Usually we distinguish between contexts of advice and authority, because advice is not often taken to be authoritative, but this is not a conceptual point, but rather just an expression of how we talk. When someone has practical authority over another, his pronouncements/directives/assertions possess preemptory status among the other reasons the advisee may have. That is, whatever other reasons the advisee may have, they are overruled (and are taken to be overruled) by the authority. In this context, when an advisor makes a pronouncement, he understands it to constrain and/or function as a sufficient reason for action.

What was the context in which Yoo wrote the OLC memo? As Yoo himself notes in his testimony before the Committee, his advice was requested in a very particular context: whether the recently (at the time) captured Abu Zubaydah could be subjected to enhanced interrogation techniques, given that such techniques, so Yoo claimed, would be extremely helpful to and desired by the executive.

But the relationship between executive and the OLC is not one of desire satisfaction, it is the latter’s job to constrain the actions of the former. This is confirmed by the particular institutional role the OLC occupies within the executive branch. The following statement from the OLC ‘best practices’ statement is relevant:

“Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch” (emphasis added).

That is, should there be any dispute on how to understand (and hence how to obey) a law, OLC memos are preemptory. This applies to everyone in the executive branch, including the President.

This undermines John Yoo’s basic defense. Although his advice did not take the form of policy, it went beyond the typical function of advice to supply mere considerations for deliberation. Due to the institutional authority granted to him, his advice took on an imperative like form.

Given his knowledge of the advisee’s motivations (we already know of the ‘principals meetings’ during which this whole cabal got together to discuss strategies to implement torture), Yoo’s affirming advice must be recognized to be motivational—and hence a part of the advisee’s decision to formulate the torture policy. This is what makes him culpable for his advice.