Marty Lederman Defends John Yoo

Wow. Just wow. This is supposed to be a defense:

Balkinization: There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is... that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

Such evidence of the lawyers' belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the "correctness" of the conclusions contained in the torture memos.... I don't think John, et al., actually believed that the arguments they were making... would be adopted by many, if any, relevant legal communities. Nor do I think that the Yoo memos purported to present a "balanced" view.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court.... I think that John knew full well that many of the specific arguments within his memos... were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest....

However, I think that Yoo, Addington and their crew... wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be).... They also were aware that this law of presidential powers can only be developed in a pro-presidential direction... if Presidents and their lawyers make novel claims... and those claims are not resisted, or are even ratified....

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate -- and whether it must be done openly, and with full candor -- are very important and difficult questions...

Comments

[jerry]

Did John Yoo have to take any sort of oath to defend the Constitution as part of either his White House job or upon passing the bar or upon taking a job at UC Berkeley?

If so, I think that oath trivially falsifies Balkin's argument here.

And I'll watch and see how everyone else responds and listen to the bluegrass player here.

[Brad Holden]

Its funny, if a member of the UCSF med school started advocating homeopathy, even if thye did it in a private practice outside of the school, I suspect many of Yoo's defenders would have no problem seeing the doctor's tenure revoked. This whole issue boils down to whether a person's political activities should impact their academic careers.

[piotr]

I am almost speechless.

I would carefully separate the issue of criminality from the possibility of the prosecution. There are no institutions in sight that could prosecute John Yoo, but this is the nature of crimes committed by the state, and within the Department of Justice, barring some revolutionary change.

"I think that Yoo, Addington and their crew... wrote the opinions as they did not in order to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be)." OK, so they disregarded the law "as it is". If this is done by non-state actors, it is an act of rebellion, if this is done by the state, it is an exercise of naked power.

But the fact that the machinery of the law is not touching enemies of the human kind does not mean that they should be presumed innocent, ON THAT BASIS. And we are not talking about questionable views on tax shelters here. Outrageous tax advise does not shock conscience (although it is quite vigorously prosecuted, being a crime directed against the state rather than by the state), but torture by the state is a crime against humanity, the most grave category of crimes. One reason for that designation was that these crimes face impunity so often, and are so corrosive to international order, that they do not deserve any limits of jurisdiction.

It is a bit like having a rapist professor, who cannot be prosecuted because he is a friend of the district attorney. Except that individual rape, or murder, is not as grave crime as abusing the machinery of the state to torture people (and, of course, kill some in the process, maim other victims, drive other to insanity etc.)

[Doctor Jay]

This administration has illustrated to me that we have rule of law only insofar as those with the power to enforce it respect the rule of law. So, the solution to this problem is not the use of law, it must first be political.

Which puts the academy in a very serious pickle, since it makes Yoo's wrongdoing political, not just an ordinary political problem.

Problem actors like John Yoo come along maybe once a century, whereas politicization of the academy will probably never go away once the door is opened.

So if the Dean of Boalt Hall find the rule of law important enough to him that he doesn't want to fire John Yoo without something that's really solid, like a criminal conviction, I guess I get that. I like rule of law.

Which is how I personally, can manage to live with the idea that John Yoo will continue to draw his salary from my money, since I'm a California taxpayer.

Mock him, organize protests at his classes, take all manner of political action, those would be fine, too. And prosecute him if you ever get the chance. I'm all for that.

[Barry]

"Mock him, organize protests at his classes, take all manner of political action, those would be fine, too. And prosecute him if you ever get the chance. I'm all for that. "

Posted by: Doctor Jay

If that were to happen, I'd be content, also. But it won't. The majority of the other law professors won't shun him, because they have to live with him. Any student who takes his classes will have to obey him, or explain to recruiters how that 'E' got on their transcript. Any protestors will be vigorously prosecuted by Berkeley - and it won't matter if they produce a letter from their lawyer, saying that their actions were lawful.