Against Accepting Yoo as Lawyering-as-Usual

Spencer Ackerman asked me some questions, and wrote up the results: http://www.washingtonindependent.com/view/the-berkeley-tempest.

Here is my full email back to him:

1. Why are you doing this? Will you be satisfied with anything less than Yoo's expulsion from Berkeley?

I've found myself doing this because I think somebody should, and I happen to be here...

I don't think I will be satisfied whatever happens.

For the university to take note of Yoo's "Torture Memo" and to impose any kind of sanction poses grave dangers for academic freedom--we don't want smart people shutting up because they are afraid that those who don't want to hear what they have to say will be able to retaliate in some way.

For the university to take no note of Yoo's "Torture Memo" is for it to endorse Yoo's claim that his work is lawyering and law professing as usual--that Yoo has some legitimacy when he claims, for example, that the president can legally order the torturing and maiming of prisoners and that congress has no power to restrain him even though the constitution explicitly gives congress the power "to... make rules concerning captures on land and water... to make rules for the government and regulation of the land and naval forces." It is a choice of poisons--the question is which is least bad...

1. Are you concerned about the academic freedom implications of this move?

Yes, gravely.

1. Should the university shield the advocacy of behavior that violates the law?

Yes, definitely. The way Ernst Kantorowicz put it, we have universities and professors because we think their thoughts and their judgments have validity, and if one concludes that, say, it is time to overthrow the government of the United States by force and violence then he or she is under an obligation to see that and we need to hear that.

The questions in Yoo's case are knottier, and I think five:

• Did Yoo do more than simply give his opinion and judgment and cross the line to become an actual conspirator to commit crimes? As I read Philippe Sands, he thinks the answer is yes.
• Did Yoo, in his legal advice to the Department of Defense, violate a lawyer's professional ethical duty to inform his clients of the law--and does that violation make him an improper choice to teach in what is, at bottom, a vocational school? I don't think I know.
• Did Yoo, in his accounts of what he said the law was, commit violations of the rules of argument--through such things as his failure to deal with the Youngstown case--that rise to the level of grave scholarly misconduct? I think probably.
• Are any of these three grave enough to warrant censure or dismissal? I don't think I know, but I do find myself leaning that way.
• Is it possible for Berkeley to take any action that is appropriate in this case without starting down a road that will lead us to a place where we really, really do not want to be as a university? I don't think I know, but lots of people I respect think that this is a slope that is too slippery to go down.

Hence my belief that the right thing to do is for the Academic Senate to create a fact-finding committee, to both find out the facts of what Yoo did exactly, and to find out what our principles really are exactly...

1. What would the implications be to Berkeley, and the country, if Yoo doesn't face any reprisal for his actions at the Justice Dept?

Well, let me turn the mike over to Georgetown Professor Marty Lederman, who you should definitely talk to (along with Philippe Sands) before you finish writing this:

I don't think John [Yoo]... actually believed that [his] arguments... would be adopted by many, if any, relevant legal communities.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court. And, perhaps most importantly, I think that John knew full well that many of the specific arguments within his memos about, e.g., the meaning of statutes and the existence of certain criminal defenses, 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....

[I]t seems to me that they wrote... not... 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)... lay[ing] the groundwork for their now-unorthodox conclusions to evolve to the point where they become legitimate... a new law of presidential powers.... [The] law of presidential powers can only be developed in a pro-presidential direction, if at all, if Presidents and their lawyers make novel claims of authority -- repeatedly -- and those claims are not resisted, or are even ratified by, the legislature and the people (and sometimes even by the courts).

When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate... are very important and difficult questions. For now, my point is merely to describe what I think was going on here...

To fail to state that Yoo's interpretations are beyond the pale is to endorse them as lawyering-as-usual, and to make it more likely that we will remain a country that routinely tortures hundreds if not thousands of people who have been sold to the CIA for cash by their clan enemies on the theory of, well, why the hell not torture them--there's a one-in-a-million chance that one of them might actually know something about Al Qaeda. Such a shift in who we are needs to be stopped and rolled back--and if Yoo's interpretations are taken to be just lawyering-as-usual, it won't be.

If not rolled back, such a pattern of behavior by America's soldiers poses the gravest of long-term threats to America's national security. We are not talking evil masterminds with ticking bombs here. We are talking low-level players and innocents caught up in dragnets--all of whom and all of whose relatives now have a real good reason to hate America.

You should also take a look at Dan Kahan on John Yoo: if you want a strong between-the-lines argument from the Deputy Dean of Yale Law School that John Yoo has no business educating future lawyers, it is there: http://delong.typepad.com/egregious_moderation/2008/05/dan-m-kahan-yal.html

Comments

[Steinn Sigurdsson]

I am trying to get a small scale context on where Yoo's actions fall.

If, say, a UC professor of education were to take an external position, say as an authoritative consultant to the Chicago Board of Education, and as such, write a policy for the district which authorized and encouraged school principals and their delegates to sodomize delinquent children, would this be cause for investigation and possible disciplinary action? Particularly so if the head of the Board actually sent this to the schools as policy and there was reasonably suspicion some schools were adopting the policy and carrying it out.

I am trying to distinguish this from a controversial opinion article, and present a hypothetical where the university association is presumed authoritative and the action of the faculty member is by proxy.

My sense is that this would, of course, lead to investigation and disciplinary action, not to mention legal action.
The only question then is how authorizing this for the President and his delegates is different, and my understanding of the entire history of US constitutional law, going back to pre-US days, is that this directly opposes the essential principles of US law.

I Am Not A Lawyer, of course.

[smaug]

[Somewhat fittingly, I think, the villain of JRR Tolkien's "The Hobbit" writes in to defend John Yoo:]

Youngstown is not relevant to the question of interrogations.

[You miss the point. The holdings of Youngstown are very general. If Yoo wants to argue that it doesn't apply, he needs to say why it does not apply. You cannot help Yoo today by adding things he did not say to his memo.]

First, Youngstown concerns domestic property, not alien combatants. Second, Youngstown deals with actions within the US. Indeed, this is the central reason for why the Court does not defer to the president; they do not think that the theatre of war in Korea can be extended to the continental US. Yoo's memo deals exclusively with actions outside the US, and pretty much in the theatre of war.

[smaug]

My concern is not to "help" Yoo; I think his memo is wrong-headed. DeLong agreed with a comment that Yoo's omission of _Youngstown_ in the memo is evidence of legal malpractice. This is what I object to. If Congress had passed a law governing interrogations, it would be relevant, but it had not at the time.

Was Clinton's OLC staffer Randolph Moss guilty of malpractice for his failure to cite _Youngstown_ in this memo: http://www.justice.gov/olc/final.htm

The memo deals directly with the issue of presidential war authority and the role of Congress, and Moss found no need to cite it. Why? Because _Youngstown_ was not decided on the grounds that Congress could restrict the conduct of war abroad, but rather that war powers could not be extended permit the president to interfere in labor strikes at home. As Jackson noted:

"We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."

And as Black's plurality opinion stated: "The order [to seize the mills] cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production."