The Torture Memo and Academic Freedom
Hoisted from Comments: Torture and Its Euphemisms

John Yoo and Professional Responsibility

2006 Yale Law School Commencement: May 22, 2006: Dan M. Kahan, Deputy Dean and Elizabeth K. Dollard Professor of Law

There’s another [thing we teach here], which is more complicated and which is concerned with making you good rather than bad lawyers in a somewhat different sense.... [T]here is an element of moral agency in good lawyering.... When I as a lawyer exercise professional judgment, when I perform my professional responsibilities, I affirm the authority and extend the vitality of the norms that construct our professional situation sense... point those understandings in a either a just or an unjust direction....

A little over a decade ago, a brilliant 25 year-old [John Yoo] was standing where you are. Less than a decade later... [John Yoo] found himself serving as Deputy Assistant Attorney General... battling internal opposition from career military officers and lawyers, [John Yoo] wrote a legal memorandum which construed the law to permit the use of interrogation techniques that the U.S. had for decades understood to be banned by the Geneva Convention. Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

The analysis reflected in the so-called Torture Memo did not, in fact, become part of our professional and cultural understandings, our situation sense. But... credit for that belongs to another individual lawyer, who as a 20-something also stood where you now are about a decade and a half ago.... In 2003 he took over as head of the Office of Legal Counsel. And to the shock of his patrons, he immediately issued a directive advising the military intelligence services that they couldn’t rely on the so-called Torture Memo... at a time when high-ranking political appointees in the Justice Department and Pentagon were continuing to place decisive reliance on the Torture Memo. As a result, this lawyer had every reason to believe the Memo’s understanding of the law would persist, and that it would pervade and shape the shared professional and cultural understandings of lawyers, unless he as a lawyer took responsibility for repudiating it. So he did.

This lawyer, Jack Goldsmith, was ultimately pushed out of OLC.... Now that Goldsmith is there [at Harvard Law School], I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of [Goldsmith's] actions, it's much less likely any of you ever will either.

This was my last chance to teach you some law, Yale style. These were my final two slides: one bad lawyer, one good. What made the bad one bad wasn’t that he knew “less law.” It was that he, unlike the good lawyer, refused to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself.

Because you today are standing where these two lawyers stood, because you are standing where number members of Congress, Justices of the Supreme Court, and Presidents of the United States have all stood too, I feel petty certain that a number of you too will be in that position some day. If you are, how good a lawyer you are won’t be determined by how many rules you’ve learned; it will turn on how good a person you are. My apology for not teaching you more “law” is that I thought it was much more urgent to try to teach you that.