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.