Paper's abstract

Julien Cantegreil, Dicey revisited. About the responsibility of lawyers when suspending criminal law. Some remarks on the decision about jurisdiction in Padilla v. Yoo
It has been said that the “torture memos” written during the War on Terror fell far short of professional standards of candid advice and indepen-dent judgment, involved a selective and in places deeply eccentric reading of the law and finally were reverse engineered to reach pre-determined unconstitutional outcomes (approvals of waterboarding and other CIA techniques). Last February 2010, the DoJ overruled the findings of an internal ethics investigation by the DOJ Office of Professional Responsibility and concluded that John Yoo, a Bush administration lawyer who co-wrote these memos, was not guilty of any professional misconduct. Last June 2009 however, Judge Jeffrey White had refused to dismiss a lawsuit brought by convicted terrorist Padilla that claims Yoo's legal opinions endorsing enhanced interrogation techniques led to him being tortured. Far from being a theoretical question, the constitutional and theoretical analysis of the liability attached to these memos, now to be adjudicated, remains at the heart of a decent way out of the War on terror.

Key Words : terrorism – derogation - suspension of fundamental rights – liability – Schmitt – Dicey
t. 53, 2010 : p. 240-271