Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong

Philippe Sands on John Yoo's Torture Memo and Berkeley Law School Dean Chris Edley

Over here: http://delong.typepad.com/the_torture_memo/2008/05/philippe-sand-1.html.

Here is a taste of what Philippe Sands has to say. He is reassured that his conclusions "have not been challenged":

VF Daily: Guantanamo Update: A New York Times editorial described [John] Yoo’s continued employment at Berkeley as “inexplicable”, and this seems to have stung the Dean at that law school, Chris Edley, into explaining the limited options available to him.... I have less sympathy... for Dean Edley’s assertion that:

no argument about what [Yoo] did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place...

[L]awyers play a crucial role, as gatekeepers of legality.... When the lawyers bend... cross a line... ethics violations... criminal violations.... I was told that, under their rules of criminal law, “the lawyer has the same responsibility as the interrogator,” and that, when it comes to torture authorized by a lawyer, “the lawyer who gives such legal advice is not [treated] as an accomplice, it is as though he is the author"...

Jeebus! This Is Humiliating!

First time I have been late to an exam in thirty years in this business.

Fortunately, I was only ten minutes late.

Unfortunately, I was the one giving the exam...

DeLong Smackdown Watch: John Yoo's Torture Memo and Academic Freedom

A commenter, Wetzel, writes:

You have placed Professor Drumond in a position where to initiate an action in defense of a thousand year tradition of law against, torture he must push up to the line, and maybe cross the line into an improper form of inquisition. The question of your standing, and the Senate's standing, is really important, I think, to interpreting the rationale of his reply.

For us who are outraged over what Yoo and the others have done in our name, his reply seems like a really thin gruel. I think he is probably taking the right approach, unfortunately. Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry.

There is another tradition in law going back even further than prohibition of state torture governing the standing of complainants in proceedings. The question of standing to speak is a settled wisdom that is a first order concern of any parliamentary organization. In the light of this, Dr. Drumond understands the limitations of his position. The controller of the floor must withstand those who would advocate the parliament assume a role for which it was not intended or proper. Obviously the introduction of matters of professional misconduct by peers within a university against each other to the floor of the Senate for debate must involve the questino of the standing of the complainant. Certainly it is not permitted for one faculty member to initiate an inquiry by the Senate against another faculty member as an individual Professor, and if there were such a process it would certainly need to be extremely circumspect and deliberative before even the first proposal of inquiry were public, no matter how egregious the complaint. I imagine Professor Drumond is a bit peeved that you do not seem to understand the dangers of Inquisition, because if you did then you would understand you have put the Inquisition on him, because many readers will see his reply simplistically and view him as Kafkaesque, cowardly, or participating in the banality of evil. The ability of a university administrator to accept this perception of their bland, indifferent replies as a bad thing is frankly sacramental.

Because the seriousness of John Yoo's Torture Memo extends to criminal behavior, I feel that an inquiry at the university level, especially at this early stage, is not proper because there would not be proper rules of evidence and processes ensuring objectivity and transparency. In a Berkeley inquisition, how would evidence of law breaking produced through the inquiry be referred to the Justice Department? Although I suspect that Professor Drumond would probably want to see Cheney, Yoo, Bush all at the Hague like the rest of his do, he modulated his reply to even have the not too diplomatic mention of the word 'defamatory', which is his way of kicking your shins a bit for catching up the Senate in the overall legal crisis of having a criminal in the White House. It is beyond their scope. I think you should not hold the letter against him because it is written to be exactly bland and imperturbable to protect the Senate against becoming an inquisition, which is a first order responsibility.

I think Wetzel's critique is easy to answer.

First I genuinely think a fact-finding inquiry would be useful. At what point violations of intellectual integrity become grave enough to warrant some kind of sanctions--that is not a question I know the answer to. I think that there is a line that should not be crossed, and that some form of responsibility for line-crossing would be a good thing, but I am not at all sure where the line is or what the sanctions should be. And my first response as an ineffectual liberal academic is to say that we should try to discover what the facts are and what we think about them by talking about them, publicly.

Wetzel says, essentially, that it is impossible to have a fact-finding inquiry into John Yoo's Torture Memo because the facts have an anti-Yoo bias:

Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry...

Thus Wetzel believes that any such inquiry must turn into an Inquisition, rather than (say) into a vindication of Yoo's actions (and legal theories) or into a rough consensus that Yoo faced painful dilemmas and dealt with them like a responsible adult. And I think that Wetzel suggests that if the facts were not so biased against John Yoo--did not suggest a possibility of criminal culpability that makes the Republican ex-chief of staff for Secretary of State Colin Powell suggest that Yoo not travel to western Europe ever again--then we could have a fact-finding inquiry.

I think there has got to be something wrong with any "it's unfair because the facts are biased!" position. Wetzel's position seems to me to be one such. It is not the case, mind you, that I am dead certain of what is wrong with Wetzel's "it's unfair because the facts are biased!" position. But I am dead certain that there is something wrong with it.

And I would like to know--coolly, factually, dispassionately--the answers to the following questions:

• In 2000, John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson. Is it possible for an honest and sane lawyer to believe that and also to believe the doctrines Yoo set forth in his Torture Memo?

• Does the omission of any discussion of the Youngstown case from John Yoo's Torture Memo cross a legal line and violate the professional duty of a lawyer to give advice about what the law is--not about what he thinks the law should become--to his clients?

• Consider the arguments of the Torture Memo--arguments about which Georgetown's Marty Lederman writes: "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..." Do these arguments rise to a level of misconduct equivalent to that of the misrepresentation of sources in other disciplines?

• Did John Yoo cross the line at OLC and become not just an advisor but an implementer, and thus a member of a conspiracy to commit acts of torture?

• Is there an academic freedom safe harbor, according to which all deeds and writings while not at the academy are irrelevant to whether one meets the intellectual standards of inquiry, scholarship, honesty, and honor that must be maintained for continued membership among the faculty of the university?

Originally I had two more questions:

• Was John Yoo's role in the Bush administration confined to the justification of torture only in "ticking bomb" situations in which the plea of necessity can be made (whether or not it is accepted)?

The answer to this is "no." John Yoo's role was to argue for the power to torture in routine bureaucratic cases--torture of people many of whose factual guilt and ability to threaten the national security of the United States was not only doubtful but extremely unlikely.

• Have John Yoo's actions strengthened the national security of the United States?

The answer to this is also "no." His actions have weakened it.

DeLong Smackdown Watch: John Yoo's Torture Memo and Academic Freedom

David Levine writes:

The Torture Memo: The Torture Memo and Academic Freedom: Consider Professor Left, on leave at CEA, who went on national TV to argue that a rise in the minimum wage would not reduce employment, increase prices, or harm small business's profits. Professor Left knew that at least one of these effects was essentially certain to occur, but had a political job to do.

Consider Professor Right who, a few years later, went on national TV to argue that a cut in capital gains tax rates would raise tax revenues. He knew full well that the short-term boost in tax revenue will be overwhelmed by revenue cuts in later years. He hid that fact on TV, in Congressional testimony, and in memos to executive branch decision-makers.

Professor Center is more mainstream than his colleagues on the left and right. He goes on national TV to argue that a free trade pact will increase U.S. employment. In fact, Professor Center believes unemployment will be roughly unchanged as it is largely determined by the Federal Reserve. Employment will probably be lower, Prof. Center believes, because the free trade pact might increase employment with the trading partners and reduce immigration to the United States.

Assume that each policy in fact had (somewhat predictable) harmful consequences: job loss for minority teens, massive budget deficits, and a financial crisis in the southern trading partners that reduced their ability to purchase U.S. exports. Was it professional misconduct to push these policies while declining to mention (and sometimes implictly denying) the downsides? Do those recommendations disqualify the professors from teaching? Would it matter if the economists had line authority and made policy decisions, or were trusted advisors who were very influential with both parties, not just standard wonk advisors?

I mention these cases not to defend Professor Yoo or the despicable U.S. policy of torture. I mention these cases to suggest the issues of academics acting as political advisors and decision-makers are tough.

I agree that the questions are tough. I do think that:

• Left-wing economists should not say that minimum-wage increases would neither (a) decrease employment, (b) rise prices, nor (c) diminish profits.
• Right-wing economists should not say that capital gains tax rates would raise tax revenues--unless they in fact do believe that the short-term boost in tax revenues outweighs properly-discounted revenue losses in the out-years.
• Centrist economists should not say that free trade will boost U.S. employment--unless they believe that free trade will make the country richer and so actually boost labor supply and demand.

But neither left-wing, right-wing, nor centrist economists say such things in the classroom: in the classroom we all teach what we believe. At what point do violations of intellectual integrity by economists under message discipline become grave enough to warrant some kind of sanctions--that is not a question I know the answer to. I think that there is a line that should not be crossed, and that some form of responsibility for line-crossing would be a good thing, but I am not at all sure where the line is or what the sanctions should be.

When Hyperbolic Discounting Attacks!

Back in January, the question of whether to declare the last day of instruction here at U.C. Berkeley--May 12--part of reading period and cancel the class is a no-brainer. the students are good, enthusiastic, and well prepared. There are oceans of material to cover. The syllabus has just been hacked with a chainsaw--the half-week unit on contemporary Chinese monetary policy has just bitten the dust--and I don't wan;t to have to cut any more. And the question of whether to extend the semester and have another meeting on May 14 is also a no-brainer: it wouldn't be fair to grab normal course time for review, would it?

But today it is May 12, and this is the 44th time I have trudged into this particular course's classroom this semester. And my heart sinks at the thought that I have to do it again...

This is not to say that this has been a bad course: these are good kids, they were well-preoared, and they have learned a lot.They are still pestering me with questions about John Hicks's IS curve and John Taylor's monetary policy reaction function (which I have no covered at such length that I guessed they have to be on Friday's exam). But my marginal disutility of lecturing all of a sudden feels very high...

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On a related issue, I have never been gladder that my real gradebook is in paper in my backpack then when I see this:

The Torture Memo of Professor John Yoo and the Responsibility of the Faculty of the University of California at Berkeley

For now, I've moved the discussion of Professor John Yoo's Torture Memo over here: http://delong.typepad.com/the_torture_memo/

Jack Balkin on John Yoo

Jack Balkin on the highly-trained legal mind of John Yoo:

Balkinization: Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

The Torture Memo and Academic Freedom

I'm going to try to move the discussion of Professor John Yoo's Torture Memo over here: The Torture Memo http://delong.typepad.com/the_torture_memo/.

Anybody who wants posting privileges at "The Torture Memo," drop me a line at brad.delong@gmail.com...

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So I sent off my letter (http://www.j-bradford-delong.net/2008_pdf/20080506_yoo.pdf) to William Drummond, in his capacity as Chair of the Berkeley Division of the Academic Senate of the University of California.

Any Berkeley community members who want to sign on, drop me a note at brad.delong@gmail.com, and I'll put you on the list...

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UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the “Torture Memo” of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration’s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo’s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo’s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the “Torture Memo” I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a “get out of jail free” card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong

Professor of Economics

UPDATE: William Drummond answers:

Dear Brad,

Although you and I disagree, our talk this morning was a good one. Thank you for your thoughtful memo. Prof. Yoo has agreed to testify before a Senate committee. More details of what he did while on government service are likely to surface at that time.

The actions you urge on the Senate are therefore premature. Nevertheless, nothing I've read in the bylaws that convinces me the Senate has any standing in the matter.

If there's a showing of any illegal act or actionable breach of professional ethics, the campus administration would have the responsibility of filing a complaint.

Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it. Besides that, there's the practical problem of finding committee members with the expertise you outline.

Yours,

Bill

I am left with a puzzle: I have little clue as to what counts as an "actionable breach of professional ethics" or as serious scholarly misconduct. Hence I want a fact-finding committee. But it seems that the creation of a committee to find facts is ipso facto defamatory, and so cannot be contemplated unless there is already "showing of any illegal act or actionable breach of professional ethics." But if there is already a "showing of any illegal act or actionable breach of professional ethics" then there is no need for a fact-finding committee...

Mark Graber, John Yoo, and the Problem of Academic Evil

Law professor Mark Graber--who we last saw using Martin Luther King Day weekend to blog about how Dred Scott was rightly decided by Roger Taney, and how Taney's opinion was legally correct when it stated that no Black man had any rights that the white man was bound to respect--pokes his head out of his whatever-it-is and becomes the first man I have seen who comes to the substantive defense of John Yoo:

Balkinization: Having just excerpted the Yoo memo... let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials.... I was no more impressed by the Roberts opinion in Parents Involved (the Seattle school district case) then the Yoo memo.

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word.... President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials... but I suspect they were not believed or even intended to be believed.... If there is a conspiracy, we probably should arrest about 60% of the country.... [T]he Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States.... [A]s a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators.... [T]he constitutional support for Yoo's position is gaining strength.... Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

I confess I don't see an argument here.

Of course, I didn't really see an argument in Graber's applause for Roger B. Taney either. If there was an argument it seemed to be: "The southern slaveholder aristocracy would never have ratified the Constitution if they had thought that its proper interpretation would ever piss them off, so the first principle of interpreting the Constitution of 1789 must be to interpet it in a way that doesn't piss the southern slaveholder aristocracy off." And this was profoundly stupid--it leads to the conclusion that no constitution can ever be interpreted to mean anything that pisses anybody off (except slaves, women, the propertyless, subsequent immigrants, etc.--all those who didn't get to vote on it--it's OK to piss them off). And this was empirically false: in the Nullification Controversy Andrew Jackson and the Democratic congress interpreted the tariff clause in a way that pissed the slaveholding aristocracy of South Carolina off mightily--and made it stick, with President Jackson reportedly swearing that if the legislature of South Carolina did not back down he would seize its leading politician and his own Vice President John C. Calhoun and hang him on the south lawn of the White House.

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Time to hoist my earlier views of Mark Graber from the archives:

http://delong.typepad.com/sdj/2007/08/law-professor-m.html

Mark Graber is back: This time it is one of the most bizarre ripping-of-quotations-from-context I have ever seen, asserting that the differences on slavery between Roger B. Taney and Abraham Lincoln were "almost trivial." In making this argument, Graber lets Lincoln speak for one single clause before silencing him and hustling him offstage:

Balkinization: A good case can be made for tearing down the bust of Roger Brooke Taney that stands in front of the city hall in Frederick.... Taney wrote the opinion for the Supreme Court in Dred Scott v. Sandford (1856)... that persons of color could not be American citizens and that slavery could not be prohibited in American territories.... While the bulldozers are rented, we might get our money’s worth and tear down all statues honoring Abraham Lincoln. Lincoln insisted he "never complained especially of the Dred Scott decision because it held that a negro could not be a citizen..."

From a contemporary perspective, the differences between Lincoln and Taney seem almost trivial. The sixteenth president opposed making persons of color citizens of Illinois, advocated federal fugitive slave laws, endorsed slaveholding in the nation’s capital, and insisted that the federal government had no power to interfere with slavery in any state in which human bondage was legal. Their only serious dispute was over whether slaveholders could take their human property to North Dakota, a place few if any slaveholders had expressed interest in settling...

Let us bring Abraham Lincoln back on stage, and let him say more than the nineteen words from his Alton speech that Graber lets him say. Here is what Lincoln said about the "almost trivial" differences between him and the anti-anti-slavery Democrats like Stephen Douglas (let along the pro-slavery Democrats like Roger Taney):

Last Joint Debate, at Alton. Mr. Lincoln's Reply. Lincoln, Abraham. 1897. Political Debates Between Lincoln and Douglas: Judge Douglas... says he “don’t care whether [slavery] is voted up or voted down” in the Territories. I do not care myself, in dealing with that expression, whether it is intended to be expressive of his individual sentiments on the subject, or only of the national policy he desires to have established. It is alike valuable for my purpose. Any man can say that who does not see anything wrong in slavery; but no man can logically say it who does see a wrong in it, because no man can logically say he don’t care whether a wrong is voted up or voted down. He may say he don’t care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing. He contends that whatever community wants slaves has a right to have them. So they have, if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.... You may turn over everything in the Democratic policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation, or the shape it takes in short maxim-like arguments, it everywhere carefully excludes the idea that there is anything wrong in [slavery].

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—-right and wrong—-throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle...

Mark Graber may think this difference is "almost trivial." I cannot find anybody else who does.

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"To Secure the Blessings of Liberty" by reiterating his claims that (i) Dred Scott v. Sanford was rightly decided, and (ii) it was Lincoln and the Republicans in the 1850s--rather than either Roger Taney with his southern power grab in 1857 or the slavemaster secessionists firing on Ft. Sumter in 1861--who broke the constitutional order set up in 1857. It's an interesting way for him to celebrate Martin Luther King holiday weekend

As you may or may not remember, I read Mark Graber's Dred Scott and the Problem of Constitutional Evil as making seven claims:

1. The 1787 Constitution intended "contested constitutional questions... be settled by the bisectional coalitions."
2. The framers thus set John C. Calhoun's principle of "concurrent majorities" in the Constitutional bedrock
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit.
4. In Dred Scott, Roger B. Taney replaced failing the political protections of slavery provided by sectional balance in numbers of states and populations per section with legally-enforceable protections.
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it.
6. In criticizing Taney for violating the letter of the Constitution, Lincoln was being unfaithful to the spirit of the Constitution, and so was destroying it.
7. Dred Scott was rightly decided.

Claim number two, especially, struck me as simply weird. Read John C. Calhoun's Discourse. John C. Calhoun himself did not believe that his principle of concurrent majorities was part of the 1787 constitutional order. He believed that it would have been wise for the framers to have made it part of the order. He believed that the constitution should in his day be amended to make it part of the order. He believed that without this principle the country might disintegrate. But he did not believe that the North had any sort of constitutional responsibility or obligation to treat his principle of concurrent majorities as part of the 1787 constitutional order.

Mark Graber has gotten himself to the right of John C. Calhoun. This is a position painful and ludicrous for a twenty-first-century American legal academic to assume. It is a position so painful and ludicrous that it should induce any twenty-first-century American academic to undertake an agonizing reappraisal--particularly over Martin Luther King holiday weekend.

But Mark Graber doesn't. Let's turn the mike over to him:

Balkinization: [A] fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation.... Of course, members of [the North] will have the luxury of knowing, as civil war wracks their country, that [the slavemasters of the South] was the party responsible for abandoning the constitution. This, however, is unlikely to reduce their casualities....

[C]onstitutional bets made by one generation... should not be enforceable against the next when the result is a sharp imbalance in the benefits... constitutions are best interpreted in ways that enable all parties... to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war)....

I think DeLong is mistaken when he insists that northerners ratified on the basis of their belief that slavery would diminish over time (while most hoped so, the best evidence indicates that concerns with slavery were not central for most northern proponents of ratification). But even conceding the point for argument's sake, the more vital constitutional consideration is that as a political matter people are not going to pay off constitutional bets made by their ancestors when the payment requires a sacrifice of crucial interests with inadequate present payoffs.... [T]he constitutional bargain was likely to continue only if the winner, in this case the free states, did not collect. The Constitution of the United States... could survive only when all crucial parties believed that cooperative served their interests, as they presently defined their interests...

I want to make two points in response.

My first point: pacta sunt servanda. Agreements should be kept. We use analogies derived from the law and practice of private contracts in our reasoning about public moral and legal constitutional obligations. Whether it makes sense for us to use these analogies is a deep question well above my pay grade. But we do use them: it is the style of constitutional reasoning that we have. And it tells us that pacta sunt servanda: agreements should be kept.

Oftentimes prudence, empathy, the desire to make additional agreements in the future, et cetera will lead both parties to agree to renegotiate a contract when circumstances change. But that doesn't mean that a dissatisfied party has the right to unilaterally change it. In private law a dissatisfied party's options are to fulfill the terms, to breach and renegotiate, or to breach and litigate. The breach-and-renegotiate option between say, Target and a supplier of electric toothbrushes entails an acknowledgement of breach and negotiations among the parties, with mediation a welcome aid. It doesn't entail the guy who has the job of monitoring compliance--the guy driving the truck and checking in the shipment at Target's loading dock--saying "There are only 100 gross of toothbrushes here, but we'll say there are 144 gross because the original contract turns out to have been unfair."

In this analogy, Roger B. Taney in Dred Scott is not the mediator at the renegotiation. He is the truck driver checking in the shipment. He was not acting as the agent of the High Contracting Parties in their renegotiation. If he were, there would not have been such anguished cries from the free-soil north in resonse to his ruling.

My second point: Go back to how Mark Graber opens his post this Martin Luther King holiday weekend. He opens with an analogy. He sets forth what he regards as a situation capturing the key aspects relevant to Dred Scott of the evolution of the United States over 1787-1860. Here's what he says:

Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.

After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B...

There are two parties to the constitutional contract in Mark Graber's imagination. There is Tribe A--the North. There is Tribe B--the slaveholders of the South. Notice anybody missing? Yep. There is no Tribe C--the slaves. One of the most ancient principles of any law worthy of the name is that, at some appropirate level, quod omnes tangit ab omnibus approbari debet. And the slaves of the United States America were certainly in the direct object of the verb tangit, as far as contemplated revisions of the 1787 constitutional order were concerned.

Mark Graber says that if changes in circumstances greatly disadvantage how a constitution impacts some group, that constitution should be revised and amended so that the losers should not have to pay up the full amount of the constitutional bet that they have lost. Well, there were powerful changes in circumstances from 1787 to 1860. In 1787, with the exhaustion of tobacco soils, Thomas Jefferson believed he would someday free all his slaves. In 1860m, with with the profits of cotton and sugar, Jefferson Davis was damned sure he would not free any of his. These changes in circumstances greatly, greatly disadvantaged Tribe C. Does not Graber's argument that the free-soil North should not have collected on its victorious bet from the slavemasters of the South have further consequences? Doesn't it carry with it a much stronger argument about relations between slavemasters and slaves? Doesn't it entail that the slavemasters of the South--transformed by the profits of cotton from seeing slavery as a temporary evil to seeing slavery as a permanent good--should not have collected on their victorious bet from the slaves?

But in the world of Mark Graber's imagination there is no "Tribe C." There are only Tribes A and B: only free-soil Northerners and slavemaster Southerners. The slaves have vanished. They are socially dead. They, you see, have not made a constitutional bet because they are not parties to the constitution. They are not and never can be citizens of the United States. They are not among the people who have inalienable rights. Governments are not instituted to secure their rights to life, liberty, or the pursuit of happiness: they have none. Their claim that they are among the "we the people" for whom the constitution is supposed "to secure the blessings of liberty" is null and void, if not simply laughed out of court.

We don't have to think about the impact on Tribe C. For, as Roger B. Taney wrote, African-Americans are:

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

But I maintain the contrary. I maintain that we do have to think about Tribe C. I maintain that everybody doing politics and law in the United States--today or in the 1850s, whether Roger B. Taney or Mark Graber--ought not to pretend that Tribe C is absent from the table. Tribe C has a seat at the table, for as Abraham Lincoln said in 1858:

I agree with Judge Douglas that [the Negro] is not my equal in many respects, certainly not in color--; perhaps not in intellectual and moral endowments; but in the right to eat the bread without the leave of any body else which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every other man.

---

http://delong.typepad.com/sdj/2007/01/to_secure_the_b.html

Consider Mark Graber (2006), Dred Scott and the Problem of Constitutional Evil. At the start of his book, Mark Graber sets out seven propositions:

1. The original Constitution of 1787 intended that "contested constitutional questions... be settled by the bisectional coalitions."
2. The framers thus set John C. Calhoun's principle of "concurrent majorities" in the Constitutional bedrock: the framers regarded it as substantively unconstitutional for legislation affecting slavery to be passed by a section-specific majority.
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit, which was the "original constitutional commitment to bisectionalism."
4. In Dred Scott, Roger B. Taney replaced failing the political protections of slavery provided by sectional balance in numbers of states and populations per section with legally-enforceable protections acceptable to the "Jacksonians" (who were the people who counted).
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it via his little Constitutional Moment.
6. In criticizing Taney for violating the letter of the Constitution, Lincoln was being unfaithful to the spirit of the Constitution, and so was destroying it.
7. Dred Scott was rightly decided.

For example, see pp. 4-5, 12-13:

Confident that population was moving southwestward, the persons responsible for the Constitution assumed that representation by population, the electoral college, and the three-fifths clause would ensure Southern control.... [T]he antebellum regime disintegrated when an unexpected northwestward population explosion undermined these power-sharing arrangements....

[...]

The framers expected that contested constitutional questions would be settled by the bisectional coalitions they anticipated would be elected.... The framers never considered [that]... the letter of the constitutional rules [might subvert]... the bisectional contitutional purposes underlying those rules.... [The] real debgate [in the 1850s] was whether the original constitutional commitment to bisectionalism should be modified or abandoned.... In Dred Scott the Supreme Court fostered sectional moderation by replacing the original Constitution's failing political protections for slavery with legally enforceable protections acceptable to Jacksonians.... Republicans[']... refusal to acknowledge the constitutional commitment to bisectionalism... [was] a de facto renunciation of the original constitutional understanding that slavery would never be left to the mercy of Northern majorities.... Taney was more faithful to the original Constitution [than Lincoln] when [Taney] championed policies that could be supported by Jacksonians throughout the nation...

But there is an alternative, a more conventional story: that at the original Constitutional Moment slaveholders were betting that their power would increase over time (hence the Constitution was worth ratifying even though it did not include unneeded long-run explicit protections of slavery) and those who wanted to preserve the possibility of future abolition were betting that slaveholders' power would diminish over time (hence the Constitution was worth ratifying as long as it did include dangerous long-run explicit protections of slavery). According to this more conventional story, the abolitionists won their bet and the slaveholders lost theirs. According to this more conventional story, there was nothing in the Constitution that said that slaveholders got a "do over" if they lost their bet. In this story, Roger B. Taney's little Constitutional Moment in Dred Scott was illegitimate: an effective amendment of the Constitution that did not have the overwhelming support that whatever your theory may be of "Constitutional Moments" requires.

This more conventional story seems much stronger to me than Graber's story. At least, I didn't find anything in Graber's book that seemed inconsistent with it. And on p. 101 ff, Graber appears to sound a lot like this alternative, more conventional story--the story not of a bedrock constitutional principle of concurrent majorities but of different expectations about what the future was likely to hold:

The framers thought it "wrong to admit in the Constitution the idea that there could be property in men."... Slavery was [thus] protected by political arrangements.... [F]ramers... assumed that population increases would be greatest in the South and Southwest... [and] guarantee to the slave states the control of the House of Representatives and the executive branch necessary to secure slaveholding interests.... [T]he framers self-consciously rejected more explicit textual restraints on federal power over slavery... opposed Roger Sherman's proposal... that "no state shall without its consent be affected in its internal police."... [I]n the bill of RIghts, no slave state's representative demanded a ban on federal laws interfering with slavery....

The confidence with which the most fervent supporters of human bondage believed population was flowing southward explains their willingness to accept a mere twenty-year moratorium on federal laws banning the international slave trade.... Federalists in some Northern states and in Virginia declared that this clause [allowing the Congress to prohibit slave imports in 1808 and thereafter] doomed slavery, which required continuous importation.... Deep South representatives expected their political strength in 1808 would render unnecessary the legal protection for slavery demanded in 1787....

Certainly John C. Calhoun did not believe that the 1787 Constitution enacted his principle of "concurrent majorities." He thought that the principle of concurrent majorities was wise. He believed that it was probably necessary if the United States were to survive. He believed that the framers had made a mistake by not incorporating it--perhaps through a two-person presidency. But he was very clear in his Discourse that he did not believe that it was a bedrock principle of the pre-Civil War Constitution: he believed that the Constitution ought to be amended to enact it.

Mark Graber, in his assertion that Calhoun's concurrent majority principle--"bisectional coalitions" he calls it--was bedrock in the pre-Civil War Constitution has managed to get himself to the right of John C. Calhoun. Whenever any modern academic gets himself to the right of John C. Calhoun, it is time to check your wallet and count the spoons. Nice try.

What was really going on? Those who set up our original Constitution had lots of hopes. To create a fit instrument of government for the advance of human liberty was one. To avoid sectional strife was a second. There were a lot of others. Lots of unexpected things happened between 1787 and 1860 that caused Constitutional history to flow in unforeseen channels. Let me list four:

1. Many more people than expected voted with their feet for the institutions of the free-soil North than of the slave-soil South.
2. The coming of the cotton gin and the British industrial revolution greatly raised the value of American slaves and thus greatly increased the attachment of slaveholders to their Peculiar Institution: Thomas Jefferson wanted to emancipate his slaves; Jefferson Davis did not.
3. The existence of a written Constitution and the structure of the Supreme Court, coupled with the difficulties of formal amendment, created a situation in which by far the easiest way to amend the Constitution is to choose five justices who then have a Constitutional Moment.
4. Even after the abolition of the international slave trade in 1808, the slave population of the United States continued to increase as births to slave women outnumbered deaths, manumissions, and runaways--something few if any expected beforehand, as history teaches that slave populations do not maintain themselves.

Each of these caused American constitutional history to flow in different channels than the framers of 1787 had expected, and presumably called for some adjustment to bring the Constitution back to its intended order and purposes. So what are the principles to guide that adjustment? Which of these hopes were the bedrock principles that determine the Constitution's intended order and purposes? There is only one paragraph that tells us:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I read this paragraph and see "secure the blessings of liberty to ourselves and our posterity" as having pride of place. Abe Lincoln thought so too. Mark Graber and Roger B. Taney have a different view. I'm happy where I am.

The Duties of Vocational School Professors

James Wimberly writes:

Firing John Yoo: a comment: [T]he relevant fact [is] that... Professor Yoo is employed to teach a vocational subject, law. This isn't a prestige issue. Particle physics, cultural studies and remedial English fall on one side of the vocational/non-vocational distinction; law, medicine, nursing, flying training and plumbing school on the other.

All teaching carries with it a minimum set of professional standards on plagiarism, harassment, favouritism and so on. Nobody has suggested John Yoo has violated these. But vocational education should also inculcate the specific ethical standards of the trade in question. It seems at least arguable that Yoo's probable professional misconduct as legal enabler of war crimes taints his ability to train future advocates and judges. Should a flying school for airline pilots keep an instructor guilty of reckless flying in his own weekend plane? But the same conduct would be irrelevant to the employment of a professor of surgery.

I know I'm advocating a double standard here, but with reasons...

Phillip Carter on Chris Edley and John Yoo

From <>:

Convictions : Blame Berkeley: With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think Edley's position on John Yoo gets it exactly wrong -- and epitomizes why people deride the "Ivory Tower" as insulated from reality.   Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the consequences of their counsel.  I also think that law schools ought to model behavior for their students, and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous policy, to say nothing of the suffering of those on the receiving end of Yoo's ideas.   And, I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong -- or when their counsel produces terrible outcomes.  As my colleague Deborah Pearlstein points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines.   I don't think we should accept it in the law either -- not in practice, and not in law school either.  Academic freedom should not be a dodge for personal or professional responsibility.

Scott Horton on the Culpability of John Yoo and Chris Edley

Scott writes:

Balkinization: well into his memorandum, Dean Edley rolls embarrassingly off the tracks.

Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. . . [N]o argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Dean Edley concludes that... Yoo's ethical and legal culpability cannot be compared with that of the "deciders," that is, those who actually fix and implement policy. This is astonishingly fallacious.... Dean Edley jumps to this conclusion through a number of implicit factual conclusions. Of course, the full record of this sad tale is not yet established. Much remains purposefully obscured by the perpetrators. But... Edley's understanding of the facts is dead wrong.

In theory, the Office of Legal Counsel issues its best analysis of a legal issue for the benefit of its client, which is to say in the first instance the Attorney General, then the President. Edley assumes that Yoo was approached, as he has stated repeatedly, and asked to advise as to the full legal range of authority of the president with respect to intelligence interrogations.

That description can't be squared with the facts. A broad array of highly coercive techniques had already been implemented in rules of engagement issued to special operations teams long before Yoo was approached. Yoo was fully aware of this fact. He was commissioned to craft memoranda, twice, for purposes of a "cramdown." Lawyers and senior figures within both the CIA and DOD had objected to the new techniques very pointedly, noting that they violated criminal statutes and that both policy makers and personnel using them could be subject to prosecution.

In response to this "legal uprising," David Addington and Alberto Gonzales decided to task John Yoo to prepare memoranda... to protect the policymakers who had authorized torture techniques from future criminal liability... to wield the Attorney General's opinion powers to silence lawyers who had correctly evaluated the legal framework. Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General's opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

I base my conclusions about the facts behind the Yoo memoranda largely on my own investigation including not only the public record, but interviews with a number of figures who dealt with Yoo in the course of delivery of his torture opinions. Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution....

Dean Edley says he is convinced that John Yoo "continues to believe his legal reasoning was sound." I have no way of knowing the subjective state of mind of John Yoo, but the history of his dealings in connection with the issuance of the opinions suggests just the opposite. It suggests that he believed that an OLC opinion had a talismanic power and could be used as a tool to accomplish whatever ends he sought. That is very far from a sincerely grounded good faith belief in mistaken legal concepts.

So the facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward....

Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is "yes." The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance... United States v. Altstoetter.... Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo.... Each of these criteria is satisfied with respect to Yoo's advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. In his defense Yoo will certainly rest almost entirely on notions of immunity crafted in derogation of non-derogable international law. These arguments will work with courts in the ideological thrall of the Bush Administration, but not elsewhere.

However, my point here is not to make the prosecutor's case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability. Edley's failure to appreciate that is very troubling. Yoo is protected by the political umbrella of the Bush Administration for the moment.... So Professor Yoo will want to think twice before boarding a jet for one of those stays on Lake Como of which he is so fond.

A final aspect of Dean Edley's memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis? Does he believe that they are free to follow their careers like legal pipefitters, dispensing the advice that their clients want to hear--and if it goes astray, well then, the problem is all the client's? Does he want a generation of Berkeley grads to think that writing up CYA memos for political friends is an honorable and proper thing--or at least something you can get away with, suffering no negative repercussions? This is exactly what some of the more unfortunate and ill-considered language in his memo suggests.

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer's first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning -- He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. His decisions are not wrong. But the words he chose to express them do little credit to the students and faculty at Boalt Hall.

Chris Edley on John Yoo, and a Question in Response...

Berkeley law dean Chris Edley writes on John Yoo "as dean, but speaking only for himself" here.

I am not satisfied:

Dear Chris--

I note your statement in re John Yoo that:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct--that is, some breach of the professional ethics applicable to a government attorney--material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met..."

I don't yet have an informed view in re John Yoo--I am not a lawyer. I suspect that when I have an informed and settled view it will be the Ernst Kantorowicz view: that once somebody is a member of the university their judgment is not to be constrained in any way whatsoever on any question that could possibly be considered "political."

But I do know lawyers expert in human rights who say that in their judgment John's memo of March 14, 2003 suggests a fact pattern that, if developed and filled out in ways that we can reasonably project, make him part of a conspiracy to commit crimes against what Thomas Jefferson would call Nature and Nature's God.

And I do know lawyers expert in constitutional law--including some Boalt professors--who say that in their judgment the failure of John's memo to make any attempt to distinguish the situation he was analyzing from the situation in Youngstown takes the memo out of the realm of possible good-faith argument and into that of being a serious breach of professional ethics--misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work.

I cannot help but think that it is time for some appropriate arm of the university that is expert enough to have an informed view to consider the matter, and to advise me and the rest of the faculty (a) why John's memo of March 14, 2003 does not, despite appearances, rise to the level of participating in a conspiracy to torture goatherds from Afghanistan who have been sold to the military by clan enemies falsely claiming they are members of Al Qaeda; and (b) why John's memo of March 14, 2003, does not, despite appearances, constitute a breach of the duty of a lawyer to his clients (in this case, the majors and colonels of the U.S. army who did the torturing) of a level equivalent to that of the falsification of evidence in a scholarly work--or to say (c) that in spite of substantial evidence of participation in a conspiracy to torture innocent goatherds and to deceive the majors and colonels who were his clients and acted in reliance on his advice, the Kantorowicz freedom-of-academic-speech position still applies.

I would like to know.

There is, I think, only a choice of poisons here no matter which way Berkeley moves. But I would like smarter and more informed people than me to publicly say what they think the least damaging poison for us all is.

--

Yours,

Brad DeLong

I Have the Best Job in the World...

I walk into Brewed Awakening at 9 AM on a Thursday morning eager to procrastinate, and find that I can get myself lectured by Bob Reich on McCain's fund-raising strategy, and then by Emily Oster on the connection between increased exports and the spread of AIDS in Africa and then on people's willingness to be tested for Huntington's chorea, and then by Stefano dellaVigne and Ulrike Malmendier about how meta-analysis protocols presume that all of author-generated risk in research studies is idiosyncratic and none is systematic...

It really doesn't get any better than this.

If only I were prepared for the guest lecture I signed up to give at 11 AM...

In Re John Yoo...

The consensus of thoughtful lawyers on the matter of John Yoo appears to be that John Yoo's conduct amounts to intellectual malpractice--and rises to a level warranting dismissal from the University of California:

With this many academics talking about this stuff, if there were enough directly applicable precedents to be 'controlling' here, someone would know the story offhand. I could be wrong, but I'd bet a fair amount that the decision of how to apply the faculty code of conduct is up to Boalt Hall, reasoning from first principles, not from precedent.

And at that point, I have a very easy time saying it's the equivalent of scholarly misconduct. Legal work isn't exactly scholarship, but it has its own ethical obligations. And writing a memo like that [of March 14, 2003] (everyone's harping on Youngstown, but that's something whose absence takes the memo out of the realm of possible good-faith argument) is unethical -- if those arguments were made to a court, they would be an unethical attempt to deceive the court into believing there was no contrary precedent. That failure to meet the standards of practice required by the legal profession appears to me to be close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct.

Note that I'm not arguing that he's such a bad man that he should be fired, but that the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating) lawyer that he should be fired as a professor of law....

I think it's a pretty easy case to make... [O]n some level the reason you can fire a professor for scholarly misconduct is to make it clear that if you, e.g., falsify data, you may not teach -- people learning to be scholars shouldn't learn that such falsification is compatible with scholarship. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is very much the same sort of misconduct, and the argument that people learning to be lawyers must be protected from coming to believe that it's an acceptable part of lawyering is closely parallel...

This seems to me to be dispositive. I don't see an answer to this argument.

Berkeley Economics Skit Party

Chris Blattman writes:

Chris Blattman's Blog: Berkeley rocks out: From the latest Berkeley Econ skit party, I Can't Get No Dissertation: Highlights have to include econometricians Paul Ruud and Jim Powell on guitar, Ted Miguel in the perennial African shirt, and Brad Delong crying into someone's dissertation. If that weren't good enough, who ever thought you could combine economics, killer robots, Brad Delong, and econometricians firing lasers guitars? Apparently, the grad students at Berkeley: I can't believe that I'm trying to convince two of the lead singers--Owen Ozier and Pam Jakiela--to work on a project with me in Uganda. ;)

The John Yoo Situation

Hoisted from Comments: Charley Carp writes:

Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal: Another vote for taking action. Prof. Yoo willfully mistated the law -- with respect to both Quirin (see n. 13) and Youngstown, at the least -- for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He's a mob lawyer, not fit to be considered scholar or gentleman.

A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.

Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he's obligated to say so and explain coherently when advising a client as to what the law provides.

This is, I think, a serious breach of legal ethics: It is a violation of the Code of Professional Responsibility to lie to your clients by omitting key Supreme Court cases from your memos. It does raise the question of whether John Yoo is incompetent at his university duties: budding lawyers need to learn what their professional ethical responsibilities are, and someone who does not understand them cannot teach them.

This Garment Stands for Its Bearer's Maturity of Mind, His Independence of Judgment, and His Direct Responsibility to His Conscience and His God...

Marty Lederman directs us to http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf and http://gulcfac.typepad.com/georgetown_university_law/files/march14.memo.part2.pdf.

And he notes:

The March 2003 Yoo Memo Emerges! (not an April Fool's Joke): The Torture Memo to Top All Torture Memos: Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day -- a Saturday -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which applied only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.... Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)...

My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude.

But I find myself frozen, unable to decide whether I should or should not write to William Drummond. I find myself frozen because I am confronted by the ghost of medieval scholar Ernst Kantorowicz. Ernst Kantorowicz--right-wing authoritarian anti-Democratic anti-communist German nationalist--was asked as a condition of his appointment to the University of California faculty to swear this oath:

Having taken the constitutional oath of the office required by the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.

He refused and protested:

Ernst Kantorowicz: There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

What should the Berkeley Division of the Senate of the University of California Do?

Uncertain Principles: Talk Like a Physicist Economist

Patrick Nielsen Hayden directs us to Chad Orzel, who writes:

Uncertain Principles: Talk Like a Physicist: Today has been dubbed "Talk Like a Physicist Day". Why? Because we're at least as cool as pirates, that's why. Over at Swans on Tea, Tom offers some vocabulary tips:

Use "canonical" when you mean "usual" or "standard." As in, "the canonical example of talking like a physicist is to use the word 'canonical.'"

Use "orthogonal" to refer to things that are mutually-exclusive or can't coincide. "We keep playing phone tag -- I think our schedules must be orthogonal"

"About" becomes "to a first-order approximation"

Things are not difficult, they are "non-trivial"

Large discrepancies are "orders of magnitude apart"

Other suggestions: a situation isn't "bad," it's "sub-optimal." "Finite" can mean either "really big, but not infinite," or "really small, but not zero." If you really want to sound advanced, something that moves from one state to another slowly-- say, a highway driver who takes a mile and a half to move from one lane into the other-- does so "adiabatically."

I know I'm missing some obvious verbal tics. Leave your suggestions in the comments.

The scary thing is that all of these except "adiabatically" are used by us economists too, in our pathetic attempt to ape the physicists...

UC Berkeley Schelling Symposium

The stats:

UC Berkeley Events Calendar: Symposium: Deterrence in the world of Thomas C. Schelling

Conference/Symposium | March 4 | 9 a.m.-4:30 p.m. | Alumni House, Toll Room

Panelist/Discussant: George Akerlof, Daniel E. Koshland, Sr. Distinguished Professor of Economics, Nobel Laureate 2001, UC Berkeley Economics Department

Sponsor: Goldman School of Public Policy

You are cordially invited to a symposium honoring the work of

Thomas C. SchellingDistinguished University Professor, Department of Economics and School of Public Affairs, University of Maryland, Lucius N. Littauer Professor of Political Economy, Emeritus, Harvard University, and Nobel laureate in Economics 2005

Several panels will discuss Professor Schelling’s work in Strategy, International Relations, Industrial Organization, National Security, and Tipping Points in Social Behavior. Among other notable participants are Nobel laureates George Akerlof, Kenneth Arrow and Daniel McFadden

Target audience: All Audiences
Open to audience: All Audiences
RSVP info: RSVP online.
Refreshments: Refreshments provided.

Why I Like the Atrium of Berkeley's Valley Life Sciences Building

San Francisco Bay and the Golden Gate

I have been in this office for a decade and still cannot believe I have this view:

If I were Chancellor of U.C. Berkeley, I would confiscate all offices on the south and west fronts of Evans Hall and rent them out to hedge funds to boost Berkeley's cash flow. Just sayin'...

William Gates and William Marshall

I have long wanted to write a paper comparing the careers of William Marshall in the twelfth century and William Gates in the twentieth, as a way of making points about the embedding of the economy in society and about the different channels into which entrepreneurship and enterprise are directed--what a young man on the make who wants to be seriously upwardly mobile does and where he goes in different eras.

Now I find myself sitting next to David Hult of the French Department, who may be the person here at Berkeley to talk to about L'Histoire de Guillaume le Maréchal...

From Wikipedia:

William Marshal, 1st Earl of Pembroke (1146 – 14 May 1219), also called William the Marshal (Guillaume le Maréchal), was an Anglo Norman soldier and statesman. He has been described as the "greatest knight that ever lived."... He served five kings — Henry the Young King, Henry II, Richard the Lionheart, John and Henry III — and rose from obscu