The story is briefly stated here from Professor Turley's blog (emphasis is mine):
"The Obama Administration has filed a brief that brushes over the war crimes aspects of Yoo’s work at the Justice Department. Instead, it insists that attorneys must be free to give advice — even if it is to establish a torture program. In its filing before the Ninth Circuit Court of Appeals, the Justice Department insists that there is “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict.”
What that means in plain lingo is that the DOJ believes that government lawyers can give advice to the president, even if it bad or poor or in this case, illegal, advice to the president and be safe from prosecution.
How absurd that sounds says Professor Turley on the Countdown Show at MSNBC.com (6-minute clip is here).
The history of John Yoo and Jay Bybee and others can be found further down this blog regarding their involvement in writing and approve those infamous "Torture Memos" that were the basis for the White House and others to give and receive "The Green Light" for harsh detainee treatment that the whole world now knows was torture -- and that was illegal, unlawful and a war crimes.
Of course Federal lawyers advising the president should not feel constrained in giving advice or worry about prosecution (later), but that assumes the advice they give is NOT advice about things that are illegal, unlawful and a war crimes and torture certainly fits that bill.
At the Nuremberg Trials in 1947, the world did not allow that "excuse" to stand: "For Nazi lawyers who gave advice to Nazi leaders on the Jewish problem, or other gross war crimes, to go free just because they gave such advice."
They were prosecuted then and John Yoo and others should be prosecuted now.
Lest, We Forget — these words from U.S. Justice Robert Jackson's summation (20 pages) at the Nuremberg trials (July 26, 1946): “If we were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.”
Jackson's full summantion can be read here. Today, it is not different than then.