The Torture Memo

The Torture Memo and Academic Freedom

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. Anybody who wants posting privileges here, drop me a note at brad.delong@gmail.com as well...

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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...

I Never Thought I Would Grow Up to Be the Kind of Crank Who Wrote Letters to the Chancellor Trying to Get My Colleagues Fired...

http://www.scribd.com/doc/12561194/null

Publish at Scribd or explore others: Fiction & Literature Health & Medicine null

Scott Horton Keeps Us Up-to-Date on Some of the Bush Administration's Crimes

: Yoo for the Defense:

Yoo for the Defense—By Scott Horton (Harper's Magazine): Obama, Yoo says, has put the safety of Americans on the line: his torture ban will “seriously handicap our intelligence agencies from preventing future terrorist attacks.” Never mind, of course, that no evidence has been advanced of a single instance in which the use of torture produced intelligence that prevented a future terrorist attack, while detailed and specific evidence has now been put forward that torture produced bad intelligence used to justify the invasion of Iraq. Those are irritating details that detract from a nice narrative. So what’s all this about? Is Yoo suffering from withdrawal pangs coming off an addiction to torture?... I’ve followed John Yoo and his writings with some care for a while now, and I think I finally understand what this is about. Namely, a pending probe by the Justice Department’s Office of Professional Responsibility (OPR) is looking at serious ethical issues surrounding the issuance of Yoo’s legal opinions.

But the OPR probe is far from Yoo’s only or even most pressing worry. The likelihood that he will face a criminal probe and then possibly prosecution is growing. Susan J. Crawford, the Cheney protege tapped as the senior Bush Administration official to oversee the Guantánamo military commissions, publicly admitted in an interview with Bob Woodward, that at least one of the detainees had been tortured through the application of an interrogation regime that had been approved by the White House. In their exit interviews, both President Bush and Vice President Cheney were emphatic that in authorizing torture, they relied on the advice of their lawyers, meaning John Yoo. But in the ultimate act of ingratitude, Bush left office without issuing the anticipated blanket pardons to his torture team. NATO allies and United Nations officials are reminding the new Obama Administration that it has a solemn obligation under article 4 of the Convention Against Torture to begin a criminal investigation....

Yoo cannot be oblivious to all of this. And indeed, his column in the Wall Street Journal and his presentations elsewhere tell us exactly what the defense will be. At its core is the argument that, no matter how mistaken, John Yoo acted in good faith when he issued the torture memoranda. He truly, sincerely believes the analysis.... That’s why from April 2004 forward, Yoo has been unwavering in his adherence to the views put forth in those memos.... [W]e see in his current column and other recent statements tale-tell signs that suggest this defense is dishonest....

Immediately after reading Yoo’s memos it struck me that they were the product of reverse-engineering. The way they drifted through issues, the bizarre choice of precedent, the curious misreading of the Constitution in which the clause granting to Congress the authority to address questions surrounding detainees simply disappears--and the equally tendentious and absurd readings of international conventions and precedents--could be explained if you imagined that Yoo had been approached and told to craft a memorandum that legalized practices already in place. If that were the case, those asking for the memo were looking for a get-out-of-jail-free pass from the Department of Justice, and Yoo’s memos were supposed to provide it. Viewed in this light, what Yoo crafted makes perfect sense; otherwise they strike me as impossible to explain....

[I]f Yoo did craft the memos for the explicit purpose of covering the torture project with impunity and pushing it forward by overriding the judgment of serious lawyers at the Pentagon and CIA, then Yoo made himself a part of the torture conspiracy; that he was an accessory after the fact goes without saying.... Considering that Yoo has been excoriated by his academic colleagues for the sloppiness of his reasoning and for his mischaracterization of the authorities he cites, why does he persist? The only explanation I can put forth is that he needs to preserve his good-faith defense–that he may be wrong, but his error is held in good faith....

Does John Yoo recognize that he has blood on his hands? Certainly not. Maybe he sleeps as comfortably as George W. Bush. Or maybe his consuming interest right now is in protecting himself from prison time. And he’ll have to do a much more convincing job if he wants to succeed at that.

Former Gitmo Guard Tells All:

Former Gitmo Guard Tells All—By Scott Horton (Harper's Magazine): Army Private Brandon Neely served as a prison guard at Guantánamo.... Neely decided to step forward and tell his story. “The stuff I did and the stuff I saw was just wrong,” he told the Associated Press. Neely describes the arrival of detainees in full sensory-deprivation garb, he details their sexual abuse by medical personnel, torture by other medical personnel, brutal beatings out of frustration, fear, and retribution, the first hunger strike and its causes, torturous shackling, positional torture, interference with religious practices and beliefs, verbal abuse, restriction of recreation, the behavior of mentally ill detainees, an isolation regime that was put in place for child-detainees, and his conversations with prisoners David Hicks and Rhuhel Ahmed. It makes for fascinating reading....

Neely and other guards had been trained to the U.S. military’s traditional application of the Geneva Convention rules. They were put under great pressure to get rough with the prisoners and to violate the standards they learned.... Neely discusses at some length the notion of IRF (initial reaction force), a technique devised to brutalize or physically beat a detainee under the pretense that he required being physically subdued.... Neely’s testimony makes clear that IRF was understood by everyone, including the prison guards who applied it, as a subterfuge for beating and mistreating prisoners—and that it had nothing to do with the need to preserve discipline and order in the prison.

Second, there is a good deal of discussion of displays of contempt for Islam by the camp authorities.... Third, the Nelly account shows that health professionals are right in the thick of the torture and abuse of the prisoners—suggesting a systematic collapse of professional ethics driven by the Pentagon itself. He describes body searches undertaken for no legitimate security purpose, simply to sexually invade and humiliate the prisoners. This was a standardized Bush Administration tactic–the importance of which became apparent to me when I participated in some Capitol Hill negotiations with White House representatives relating to legislation creating criminal law accountability for contractors. The Bush White House vehemently objected to provisions of the law dealing with rape by instrumentality. When House negotiators pressed to know why, they were met first with silence and then an embarrassed acknowledgement that a key part of the Bush program included invasion of the bodies of prisoners in a way that might be deemed rape by instrumentality under existing federal and state criminal statutes. While these techniques have long been known, the role of health care professionals in implementing them is shocking.

Neely’s account demonstrates once more how much the Bush team kept secret and how little we still know about their comprehensive program of official cruelty and torture.

Torture: John Yoo and Stephen Bradbury Chatter

Straws in the wind: Echelon Intercept #3489DE38A9:

[T]he [Justice Department's] O[office of] P[rofessional] R[esponsibility]... came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney General Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is... for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity...

Michael Isikoff: Yoo Disbarment Proceedings Now Visible on the Horizon

Ah. Here it is. Michael Isikoff:

Torture Report Could Be Trouble For Bush Lawyers: An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

If Holder accepts the OPR findings, the report could be forwarded to state bar associations for possible disciplinary action. But some former Bush officials are furious about the OPR's initial findings and question the premise of the probe. "OPR is not competent to judge [the opinions by Justice attorneys]. They're not constitutional scholars," said the former Bush lawyer. Mukasey, in speeches before he left, decried the second-guessing of Justice lawyers who, acting under "almost unimaginable pressure" after 9/11, offered "their best judgment of what the law required."

But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC in 2003, protested the legal arguments made in the memos. Goldsmith resigned the following year after withdrawing the memos, and later wrote that he was "astonished" by the "deeply flawed" and "sloppily reasoned" legal analysis in the memos by Yoo and Bybee, including their assertion (challenged by many scholars) that the president could unilaterally disregard a law passed by Congress banning torture.

OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

Virtual Office Hours: John Yoo Edition

On Thu, Feb 5, 2009 at 9:41 AM, student@highschool.net wrote:

Dear Mr. Delong,

I am a seventh grade student at High School in Place, and I am working on a project for my critical thinking class. I am preparing a simulation focusing on the controversy over John Yoo’s professorship at Boalt Hall School of Law. I am representing you in this simulation, so in order for me to accurately present your views. I am hoping that you will assist me by answering these questions:

Question: Why should John Yoo’s viewpoints on torture and politics affect his professorship at Boalt Hall?

Answer: Quite possibly they should not. Ernst Kantorowicz resigned his Berkeley professorship during the Cold War on the grounds that his obligation to tell his students what he thought was the truth was inconsistent with the Regents' request that he swear not to oppose the constitution of the United States under any circumstances. There is an argument that a professor's first duty is to state what he believes, and that universities are and should be safe harbors where people of intelligence and expertise can safely state what they believe.

This does, however, raise two further questions:

1. Should Berkeley Law School have tenured John Yoo in the first place? Some law professors I know say that the shoddy quality of the argument in his OLC memos is powerful evidence that BLS should not have. I don't have expertise to evaluate whether their quality is so low as to make it impossible for him to be an effective teacher of future lawyers and researcher into the state of the law. But I do think that the question is open.

2. Does academic freedom protect you when you say what you do not believe? In a 2000 article, "The Imperial President Abroad" http://tinyurl.com/dl20090205, John Yoo writes that President Clinton exceeded the bounds of his powers as commander-in-chief: "accelerat[ing] disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law" by "render[ing] the War Powers Resolution a dead letter..."; using "troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear..."; and placing "American troops... under... non-American... commanders... threaten[ing] that basic principle of government accountability... [for] foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..." In 2000 John Yoo "believed" that the president's commander-in-chief power was tightly circumscribed--that the president could not even lawfully order an American soldier to obey the orders of an allied commander. In 2003 John Yoo "believed" that the president's commander-in-chief power was plenary and unrestrained: that no matter what orders the president issued soldiers were absolutely and lawfully bound to obey them. It seems that John Yoo does not use "belief" in a normal way--that what John Yoo "believes" at any moment is simply what is convenient for his faction within the Republican Party. Does academic freedom protect a professor who argues not what he or she believes to be the case but what is momentarily convenient for his or her political masters? I think the question is open.

Question: What consequences, if any, do you think John Yoo should receive? If not, why not?

Answer: I'm an academic. In this case, I don't know what the consequences should be, but I do know that I am an academic. And as an academic I think that the natural thing to do when there is an important question that you don't know the answer to is to think about it--collectively. That is what we professors do: we have an discussion, and in the end either people change their positions as the feel the force of different arguments and a consensus emerges or people at least understand why they disagree.

So I think the BLS faculty should have a debate that the rest of us can watch. Do John Yoo's memos at the OLC exhibit such a shoddy grasp of legal doctrines and arguments that he is not capable of being a qualified teacher and researcher? Will the accrediting authorities take action if BLS graduates make arguments of similar quality in their professional careers, taking John Yoo as a model? Or is the BLS faculty happy with the quality of the argument--and happy to turn out students who take the quality of Yoo's arguments as a model for their own future work?

And I think that the Berkeley Faculty Senate should have a debate: Given that John Yoo's "beliefs" about the extent of the president's commander-in-chief power spin about like a weathervane depending on the direction of the prevailing Republican wind, does academic freedom extend to cover his "beliefs"--or does academic freedom only cover you when you advocate positions that you sincerely believe?

Depending on the outcome of those two debates, I think that the consequences for Professor Yoo should then be clear.

Question: Why do you think the Berkeley City Council should have a say in the prosecution of John Yoo?

I don't think I do. I think that the BCC has a right to express its view. I don't think it has the power to remand John Yoo for trial, or to dictate to the university who is on the university's faculty, or to impose sanctions on the university if the university continues to employ John Yoo. I think that this is first of all university business, as well as being the business of any court that takes jurisdiction.

Question: Why do so-called progressive council members who want him terminated, fail to see that such action would violate academic freedom?

Answer: It is not clear that it would. It may be the case that (a) academic freedom does not cover you when you make arguments that you do not believe but are convenient for your political masters, and (b) John Yoo does not believe what he wrote in his OLC memos. If (a) and (b) hold, then terminating Yoo would not be a violation of academic freedom. It may also be the case that (c) terminating Yoo would violate his academic freedom, but that (d) a professional school like BLS has a higher duty than respecting the academic freedom of its professors--a duty to teach its students to be good professional lawyers, and that the shoddy quality of Yoo's legal arguments at the OLC make retaining him a violation of this higher duty to the BLS students.

If either of these is the case, then Berkeley is under an obligation to terminate Yoo. But I don't know if either is. As I said, I think the BLS faculty and the Berkeley academic senate have an obligation to discuss these issues and figure out what they think about them.

John Yoo Lies Again

From Spencer Ackerman:

In last week's interminable Yoo/Addington hearing, John Yoo accused Vanity Fair reporter and Torture Team author Philippe Sands of lying about interviewing him. Brian Beutler... tracked Sands down....

The idea, of course, is that someone who hates America so much that he's willing to fabricate all sorts of untrue allegations about Yoo (and, perhaps, other administration veterans) is not to be believed. When I heard this interchange, though, I emailed Sands and asked him to clear the air. He was fairly unambiguous: "I never claimed to have interviewed him! As set out in my book: we debated. " So who's telling the truth?

Well, Yoo's right about approximately one thing: Sands did testify before the very same House panel, on May 6 of this year. But that's about the extent of it. In his prepared remarks, Sands submits that, "[o]ver hundreds of hours I conversed or debated with many of those most deeply involved. They included... the Deputy Assistant Attorney General at DoJ (Mr Yoo)"...

Marty Lederman Gets Shrill on John Yoo

Marty Lederman on John Yoo:

Balkinization: John Yoo Testimony: Here are John Yoo's prepared remarks for the hearing before the House Judiciary Committee this morning. (I don't believe David Addington is submitting a prepared statement.) CSPAN covering it live here. I'm out of town and don't have time just now to blog in detail about this statement, except for a handful of very quick reactions:

1. John claims that the 2004 Levin torture memo, which superseded his 2002 OLC opinion, concluded that all interrogation methods OLC had previously approved as legal "were still legal." We now know that that's dead wrong. As Levin testified before this same committee last week, the footnote in question, which Attorney General Gonzales insisted that OLC include, merely indicated that the writers of the 2002 memos -- i.e., John Yoo -- would not have changed their bottom line, even if they had employed Levin's analysis. Levin himself, however, was uncertain about the legality of some of the CIA techniques, and was in the process of reviewing them when he was effectively removed from OLC.

2. John is testifying that his torture memos could have had no bearing on the abuse that took place in Iraq, because "the Geneva Conventions provided the relevant rules for the war in Iraq." There are several problems with this statement. Most important is that OLC itself, when John was there, had advised the Pentagon that the Fourth Geneva Convention did not protect "unlawful combatants," which includes most if not all of the insurgents in Iraq. (See page 4 of the April 2003 DOD Working Group Report.) As Jack Goldsmith reports in his book, the very first thing he decided when he arrived at OLC in October 2003 was that the Fourth Geneva Convention did protect Iraqi civilians -- a decision that hocked and dismayed the White House. It is fairly clear (as reflected in the Working Group Report) that until that time, the Administration, based presumably on John's own advice, was acting on the assumption that the insurgents in Iraq were not protected by the Geneva Conventions. This explains why, according to several reports (most importantly those of Sy Hersh and Jane Mayer), the Pentagon and CIA placed Special Forces and CIA operatives in Iraq in 2001 or 2002, whose basic instructions were that there was no law -- certainly not Geneva -- that protected detainees, and that the "gloves were off" and that they could engage in widespread, wanton abuse and cruelty. Which they did. (And as the Fay, Jones and Schlesinger Reports found, and many accounts attest, the conspicuous abuse by CIA and Special Forces in Iraq was an important contributing factor to the breakdown of ordinary norms among the regular military forces, as well.) The Pentagon and CIA would not have given these forces the green light to abuse prisoners if OLC had not previously advised that neither the Geneva Conventions nor any relevant statutes stood in the way of such abuse. Finally, John's broad Commander-in-Chief override theory, which was a prominent part of the DOD Working Group Report, and which was briefed to General Miller on his way to "GTMOize" Iraq, obviously conveyed the message that the President could ignore any applicable statutes and treaties, even if they would otherwise apply. John's legal advice, then, was a fairly direct cause -- certainly a necessary cause -- of the abuse in Iraq in 2002 and 2003.

3. John stresses, as he has in the past, that he was without much guidance in interpreting the federal torture statute, since there had not been any prosecutions under it, or any court cases construing it. But the virtually identical definition of "torture" is included in statutes governing removal of aliens and asylum applications, and that definition had received extensive treatment from courts under those statutes (which were also enacted in order to implement the Convention Against Torture). The INS and the State Department, therefore, had very extensive knowledge and expertise on the question. And yet those experts were cut out of the loop -- they were not consulted on the OLC opinion. Indeed, John's testimony states that the NSC ordered OLC not to discuss its work with the State Department! -- something that is in itself fairly scandalous.

4. John states that his 2002 torture opinion was "reviewed, edited and re-written by the assistant attorney general in charge of the office at the time [Jay Bybee], as is the case with all opinions that issue from OLC." John is correct that virtually all written OLC opinions -- certainly those of great importance or dispute -- are at the very least reviewed by the AAG. How, then, does he explain the fact that two of the most momentous OLC opinions has ever issued -- the September 25, 2001 Opinion on the President's war powers and the March 14, 2003 opinion informing DOD (over the vociferous objections of numerous DOD lawyers) that its interrogators had virtual carte blanche to ignore federal statutes -- were signed by John Yoo himself (a mere deputy), rather than by the head of OLC (Dan Koffsky in 2001; Jay Bybee in 2003)?

Posted 8:42 AM by Marty Lederman [link]

Philippe Sands Writes About the Torture Memo and Related Issues

He seems reassured that his work has "not been challenged":

VF Daily: Guantanamo Update: I have received a great number of communications from around the globe since Vanity Fair published “The Green Light.”... [I]t’s hard to shake the suspicion that when a publication like Vanity Fair goes for the jugular and raises the stakes on war-crimes allegations, something big has changed. None of the facts set out in the article have been challenged. That too is significant.

No doubt the story was helped by the simultaneous publication of another notorious--but until then secret--legal opinion written by Justice Department lawyer John Yoo for Pentagon counsel Jim Haynes, on March 14, 2003. The memo generally followed the arguments of an earlier Department of Justice memo, from August 1, 2002, which was signed by another D.O.J. lawyer, Jay Bybee, but largely written by Yoo. The two memos follow the same general approach, unjustifiably raising the bar on the definition of torture and providing hopeless legal arguments to justify acts that would constitute international crimes under the Geneva Conventions. As I describe in my book Torture Team, from which “The Green Light” drew material, Jim Haynes had a healthy appetite for John Yoo’s opinions.

The release of the March 2003 memo gave rise to a further raft of articles. A New York Times editorial described 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 strongly support academic freedom of expression, including the importance of exposing law students to competing approaches to legal issues. I also appreciate, as Dean Edley explains, that the standard that is to be applied for dismissal is a high one.... I have less sympathy, however, 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.

Is that right? In our system of government, lawyers play a crucial role, as gatekeepers of legality and constitutionality. When the lawyers bend, when they fail to exercise independent and professional judgment, and when they become handmaidens to policymakers, they cross a line that raises the possibility of ethics violations and possibly even criminal violations. In “Torture Team,” I describe a conversation I had with a European judge and a European prosecutor. 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 the act.” Whatever the moralities of the situation, and however much one might agree that the principal responsibility lies with the politicians who ultimately made the decisions--the secretary of defense, the vice president, and the president—the responsibility of the senior lawyers is also there. Dean Edley’s point sits uncomfortably with the underlying rationale of the 1947 judgment in United States v Altstoetter and others....

On April 9, ABC News reported, in relation to C.I.A. interrogations, that “the most senior Bush administration officials discussed and approved specific details of how high-value al-Qaeda suspects would be interrogated by the Central Intelligence Agency.” The dates are not specified. Two days later, on April 11, President Bush confirmed the account. “Well, we started to connect the dots in order to protect the American people”, he told ABC News White House correspondent Martha Raddatz. “And yes, I’m aware our national security team met on this issue. And I approved.”

These important developments provide important confirmation of the thrust of my piece: that the law was circumvented, that key decisions were made at the top, that the bottom-up theory is false, and that individuals like Lieutenant Colonel Diane Beaver, the staff judge advocate at Guantánamo, were scapegoated. The disappearance of a plausible bottom-up narrative also adds ballast to the evidence showing that the Guantánamo techniques migrated to Iraq and informed events at Abu Ghraib.

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.

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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.

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Philippe Sands Talks to Bill Moyers About the Torture Team--David Addington, John Yoo, and Company

This is even scarier than I had imagined it would be:

Bill Moyers Journal . Transcripts | PBS: After 9/11, writes Philippe Sands, our highest government officials sanctioned a 'culture of cruelty' that put our troops, our Constitution, and our own standing in the world at risk. This week, members of the House Judiciary Committee began hearings trying to find out how the President came to approve "enhanced interrogation methods" — that's the official code for the use of cruelty in the pursuit of confession. The administration has been fighting to stop a public accounting of the internal decisions behind that policy. The officials who took part in those discussions fear they could one day face prosecution if their actions turn out to have been illegal. Those key officials talked to Philippe Sands for his book, and this week he was asked to testify at those hearings in Congress.

REP. JERROLD NADLER:This hearing of the subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order....

REP. MIKE PENCE: Some, of course, have suggested that relationship-building interrogation techniques are preferable and even more reliable in the long-run than stress methods. They raise the question, though, what about the hard cases? And I can tell by your grin you acknowledge the somewhat absurd thought that you could move people who have masterminded the death of more than 3000 Americans by Oprah Winfrey methods.

PHILIPPE SANDS: I did smile because, frankly, the image that weeks and weeks of rapport-building with KSM is somehow going to produce results is counterintuitive. But the reality is we don't know. And I spoke in my investigation to a lot of interrogators — military, FBI — who basically said, "coercion doesn't work. You get information that they want to give you that they think is going to stop the pain from happening."

BILL MOYERS: Philippe Sands is known in top legal circles for his work on torture cases spawned by such infamous dictators as Chile's Pinochet and Liberia's Charles Taylor, and by genocide around the world. He's a counselor to the Queen of England, and director of the Center on International Courts and Tribunals in London, where he closely studied the British fight against terrorists of the IRA.

PHILIPPE SANDS: The thinking in the British military and the thinking across the board politically — it's really not a left-right issue, it's a broad consensus in the United Kingdom — is that coercion doesn't work. The view is taken in the United Kingdom that it extended the conflict with the IRA probably by between 15 and 20 years....

BILL MOYERS: Let me go right to a story that happened after your testimony. It's the story of the suicide bomber in Baghdad who drove his bombing vehicle into an Iraqi police station. It turns out that he had been held at Guantanamo for over three years. Pentagon records say that he had told people he wanted to kill as many Americans as he possibly can . And a lot of people — you go to the blogs this morning — a lot of people are thinking, why give someone like that the benefit of the doubt?

PHILIPPE SANDS: Well, firstly, we give people the benefit of the doubt because that's the nature of our system. We are a country, United Kingdom, United States, who believe fundamentally in democratic values. We don't assume guilt. We assume innocence. There are people at Guantanamo who pose a threat, undoubtedly. But there are also a great many more people who don't pose a threat. And in those circumstances, I think using this as an example to somehow come down on the merits of the Guantanamo system is not a sensible thing to do. I think Guantanamo has been a problem as Abu Ghraib has been a problem, because it has undermined America's claim to moral authority in facing up to the very real challenge of terrorism. And, locking them up and throwing away the key is only going to exacerbate the problem. And it's a problem that we faced in Britain, for example, in relationship to the IRA back in the 1970s and the 1980s. That's not the way to go.

BILL MOYERS: You told the committee this week that the British experience in fighting the terrorists of the IRA actually extended the conflict 15 to 20 years. What's the evidence for that?

PHILIPPE SANDS: The story's a simple one. Back in '71, '72, the British moved as the United States has done now, to aggressive techniques of interrogation. They used pretty much the same techniques: hooding, standing, humiliation, degradation. Five techniques, they were called.... But there was a bigger problem, even beyond their illegality, in my view. And that was this: That what the use of those techniques did was to really enrage part of the Catholic community, who felt that IRA detainees alleged to be terrorists, were being abused. And it turned people who were perhaps unhappy with the situation into being deeply and violently unhappy with the situation. And if you speak to British politicians who were involved in that period, and the British military, what they'll tell you is that there is a feeling that the use of those types of techniques extended the conflict.

BILL MOYERS: Did you learn that people will say anything to stop the torture?

PHILIPPE SANDS: Well, actually, I think it's self-evident that that is what happened. If you speak to interrogators, they will tell you that aggressive techniques of interrogation don't work. They don't produce meaningful information. And just the other day, I was listening to a very interesting tape of John McCain. And he explained how he, in the end, had signed a confession, owning up to crimes against children and women in North Vietnam, basically because he had reached a point, he thought he wouldn't be broken, where he had reached a point where he simply couldn't bear it any more, and he wanted the pain to stop. And the only thing he could do was to tell them what they wanted to know. And that's, that's what interrogators will tell you. Abuse produces information that is the information the detainee thinks you want to know, and nothing more than that. It's not reliable.

BILL MOYERS: Going back to the hearings, one member of the committee, Representative Trent Franks of Arizona, a Republican, said--and I quote-- "The results of a total of three minutes of severe interrogations of three of the worst terrorists were of immeasurable benefit to the American people. A full 25 percent of the human intelligence we've received on Al Qaeda came from just three minutes worth of rarely used interrogation tactics."

PHILIPPE SANDS: Well, I remember that very well. And I appreciated very much everything that Representative Franks had to say. But I've described that to my friends in London as a sort of Monty Python moment in the hearing. Because he alleged that there had been three individuals water boarded. They had been water boarded for no more than one minute each. And they had spilled the beans. And I was sitting there watching him and thinking, well, that's new information. I've never heard that before. Where on earth does that come from? Counterintuitively, I can't imagine how a waterboarding of one minute is suddenly going to produce useful information. We don't even know if it is useful. But also, imagine the scene. You've got guys there with stopwatches. We're gonna waterboard him for one minute, and then we will stop. And in that one minute, everything will come up. I don't know where he got all that from. I thought he sounded as though he made up on the stop. We don't have any objective evidence that any of these interrogation techniques have produced any useful information. KSM, you've referred to, has owned up to virtually everything under the sun that has happened that is bad for the United States in the last five years. And I find that counterintuitive to common sense. I would say I don't have actual information on KSM. I do have actual information on detainee 063. I spent time, as I describe in the book, with the head of Mohammed al-Qahtani's Exploitation Team. And the bottom line of it was, contrary to what the administration said, they got nothing out of him....

PHILIPPE SANDS: Look, Bill, I've spent 20 years during courtroom work as a litigating lawyer. I like to see evidence on things. I like arguments to be based on evidence. David Rivkin is unable to provide any evidence. I have honed in on the interrogation of one man, detainee 063. The administration has publicly declared they got a mass of information out of him that related to all sorts of extraordinarily important things to protect the Americans. I then spoke to the people who were involved in his actual interrogation and the head of his Exploitation Team. That's not what they told me. If the evidence I had been given had been different, then I would reach possibly a different conclusion. Not as to the legality or the utility of torture, but what do we do in the face of evidence that it works? But there isn't evidence that it works. The British experience is that it doesn't work. The Spanish experience is that it doesn't work. The Egyptian experience is that it doesn't work, in the sense of producing meaningful information that is going to protect a country. Sure, it produces information. But as John McCain said in his interview in 1997, it produces the wrong information. Because someone who's subject to that sort of pain and suffering is going to do anything they can to stop it from happening. And they will tell the person who is abusing them what the person wants to hear, and nothing more and nothing less.

BILL MOYERS: Philippe, you spent a long time and made a lot of trips and talked to a lot of people to do this book. What was driving you? Why did you-- you've got enough to do. Why did you want to do this particular book?

PHILIPPE SANDS: I did it totally off my own back. I was fascinated by a simple question. How could lawyers at the upper echelons of the administration, trained at Harvard Law School and other distinguished institutions, have approved torture? In what circumstances could that happen? I didn't understand how it happened. And it combined with a real sense of injustice that the truth of the story had not come out. Because what the administration said, and I was really catalyzed by a press conference I read in June, 2004, as the administration struggled to contain the disaster of Abu Ghraib. The administration spun a story. You're a press man. You know how governments work. I know how governments work. And the story was this: The desire for aggressive interrogation came from the bottom up. People on the front line, people at Guantanamo, elsewhere, told us they needed to move to new techniques. Who are we at the top, to say no? And in that context, we approved certain techniques.... But it struck me as counterintuitive, because I know the American military. I've got a lot of friends in the American military. And they are deeply committed to the rules of the Geneva Conventions and other international rules, and don't go about the abandonment of President Lincoln's disposition. So what I decided to do was I took the famous memorandum by Donald Rumsfeld, signed in December 2002, where he writes on the bottom—why standing limited for four hours a day, I stand for eight hours a day--and I tracked back the entire decision making process, identified the 10 or 12 people I needed to meet. And one by one, tracked them down, went and found them, spoke to them and I'm truly grateful to them. Once I'd had my first conversation, which I think was with Diane Beaver who was the lawyer down at Guantanamo, I was then able to get right up to the very top. And one by one, I followed from Diane Beaver, the lawyer at Guantanamo, her boss, Mike Dunleavy (who's the head of interrogations, through General Hill, who is the head of Southern Command in Miami, up through General Myers, the Joint Chiefs of Staff, up to Doug Feith, the head of policy at the Pentagon, and then right up to the main man in my book, Jim Haynes. Jim Haynes was Mr. Rumsfeld's lawyer. And Jim Haynes wrote the very famous, the infamous, iconic, why is standing limited to four hours memo. And he went to Harvard Law School. And I just couldn't understand how someone so well trained could authorize abusive interrogation like that.

BILL MOYERS: And did he talk to you?

PHILIPPE SANDS: He did talk to me. I had two meetings with him. The fact of the meeting was on the record, the content of those meetings were off the record. But as I say in the book, concluding chapter includes taking to account everything he said to me.... [T]ake Diane Beaver. I had written a previous book where I treated her legal advice. She had been the person down at the bottom who'd signed off on aggressive interrogation. I didn't like her legal advice at all. I thought it was really bad advice and wrong advice. And I was rather uncomplimentary, perhaps even rude about it, in my last book. And then I met her. And she explained to me the circumstances in which she found herself. I don't think it justifies what happened. But she described to me the pressure she felt herself under, the anniversary of 9/11 coming up. This man, detainee 063, al-Qahtani, present and caught. Tremendous pressure coming from the upper echelons of the administration. She described to me a visit that the administration has never talked about in which the three most important lawyers in the administration, Mr. Gonzales, who's the president's lawyer, Mr. Addington, who is the vice president's lawyer, and Mr. Haynes, who is Secretary Rumsfeld's lawyer-- came down to Guantanamo at the end of September, talked to them about interrogations and other issues, watched an interrogation, and left with the message, do whatever needs to be done. Now, put yourself in Diane Beaver's situation. You're getting a signal from the main man at the top of the administration: do whatever needs to be done. That takes the lid off and opens the door.

BILL MOYERS: Was there a single architect of the decision, the person who said, "Take the gloves off?"

PHILIPPE SANDS:There was one lawyer in particular who everyone kept referring to as being, if you like, the brains. I'm slow to use that word for such an awful series of events. But the driving force behind it, and that was David Addington.... But he wasn't speaking off his own back. I mean, he was speaking for the vice president. And I think that the finger of responsibility in the end, will most likely go to the vice president. But Mr. Rumsfeld was deeply involved. And, of course, the president has indicated just within the past month, that he signed off on everything.

BILL MOYERS: You subtitle the book Rumsfeld's Memo and the Betrayal of American Values. Tell me briefly about that memo and why it betrayed American values.

PHILIPPE SANDS: The memo appears to be the very first time that the upper echelons of the military or the administration have abandoned President Lincoln's famous disposition of 1863: the U.S. military doesn't do cruelty.... It's called the U.S. Army Field Manual, and it's the bible for the military. And the military, of course, has fallen into error, and have been previous examples of abuse.... But apparently, what hasn't happened before is the abandonment of the rules against cruelty. And the Geneva Conventions were set aside, as Doug Feith, told me, precisely in order to clear the slate and allow aggressive interrogation... at the insistence of Doug Feith and a small group, including some lawyers. And the memo by Donald Rumsfeld then came in December, 2002, after they had identified Muhammed al-Qahtani. But it was permitted to occupy the space that had been created by clearing away the brush work of the Geneva Conventions. And by removing Geneva, that memo became possible. Why does it abandon American values? It abandons American values because this military in this country has a very fine tradition, as we've been discussing, of not doing cruelty. It's a proud tradition, and it's a tradition born on issues of principle, but also pragmatism. No country is more exposed internationally than the United States. I've listened, for example, to Justice Antonin Scalia saying, if the president wants to authorize torture, there's nothing in our constitution which stops it. Now, pause for a moment. That is such a foolish thing to say. If the United States president can do that, then why can't the Iranian president do that, or the British prime minister do that, or the Egyptian president do that? You open the door in that way, to all sorts of abuses, and you expose the American military to real dangers, which is why the backlash began with the U.S. Military.... It slipped into a culture of cruelty. There was a, it was put very pithily for me by a clinical psychologist, Mike Gellers, who is with the Naval Criminal Investigation Service, spending time down at Guantanamo, who described to me how once you open the door to a little bit of cruelty, people will believe that more cruelty is a good thing. And once the dogs are unleashed, it's impossible to put them back on. And that's the basis for the belief amongst a lot of people in the military that the interrogation techniques basically slipped from Guantanamo to Iraq, and to Abu Ghraib. And that's why, that's why the administration has to resist the argument and the claim that this came from the top.... It started with a few bad eggs. The administration has talked about a few bad eggs. I don't think the bad eggs are at the bottom. I think the bad eggs are at the top. And what they did was open a door which allowed the migration of abuse, of cruelty and torture to other parts of the world in ways that I think the United States will be struggling to contain for many years to come.

BILL MOYERS: You said that the backlash came from the military....

PHILIPPE SANDS: You've got different camps who are struggling down at Guantanamo. And I think it would be wrong in any way to give the sense that there was unanimity to move towards abuse or that there was even strong support towards moving towards abuse. There was a strong body of belief down at Guantanamo amongst the military community, amongst the military lawyers, with the FBI, with the Naval Criminal Investigation Service, that this is a bad thing. Abuse doesn't work, abuse undermines authority, abuse undermines morale. We are going to stop it. Initially, they weren't successful. But once the abuse began, a backlash followed. And the folks down at Guantanamo identified a man in Washington who was the general counsel of the Navy, a man by the name of Alberto Mora, who truly is a heroic individual, in my view, who intervened very courageously, no personal advantage, directly with Jim Haynes, and said, "This must stop. If it doesn't stop, I'm going to reduce this into writing, and I'm going to cause a big fuss."...

BILL MOYERS:The legal affairs correspondent of The National Journal, a very respected fellow named Stuart Taylor, says that we should focus on amending the law to prevent future abuse of torture, but not hold those responsible for past interrogations of questionable legality. What do you think about that?...

PHILIPPE SANDS: I think the crucial issue is you've got to ascertain the facts. I was asked by the committee what should happen. My answer to that question was, "Let's sort out the facts. Once we've sorted out the facts, then it will be for others to decide what to do." I'm satisfied here a crime was committed.... The Geneva Conventions were plainly violated in relation to this man. And in our system laws, if a man violates the law and commits a crime, he is punishable.

BILL MOYERS:So who violated the law?

PHILIPPE SANDS: I think it goes to the top.... I'm not on a witch hunt. I'm not saying that there should be a campaign of investigation and prosecution and sentencing, and conviction, and so on and so forth. What I'm saying is let's start by sorting out the facts. Once the facts have been sorted out, let's see exactly what they say, and it will be for others to decide what needs to be done. But until that's done, you can't close on the past and you can't move forward.... The lawyers were deeply involved in the decision making process. The lawyers that I've identified, from John Yoo at Department of Justice, preparing a legal memorandum which abandons American and international definitions of torture, and reintroduces a new definition that has never been passed by any legislature, that is totally unacceptable. What was he doing there? Was he really giving legal advice? No he wasn't. He was rubber stamping a policy decision. This is not careful, independent legal advice. What was Jim Haynes doing when he recommended to Donald Rumsfeld the authorization for the approval of 15 techniques of interrogation? He was saying to the Secretary of Defense, I'm your lawyer. I'm telling you this is fine. You can do it. If he hadn't done that, Mr. Rumsfeld would not have signed the piece of paper that Jim Haynes wrote. Jim Haynes is directly involved in the decision making process. And the lawyers, as such, play an absolutely key role. Now, at the end of the day, they're not the most important people. The most important people are the people whose signatures are actually appended. They are the politicians who actually decided the issue. But in this case, without the lawyers, they would never have had a piece of paper to sign.

BILL MOYERS: Do you think that people like David Addington and John Yoo and Jim Haynes, and the other lawyers you've mentioned who advised and were on the torture team, should ultimately be held responsible in court for what they did in government at this period of time?

PHILIPPE SANDS: If they were complicit in the commission of a crime, then they should be investigated. And if the facts show that there is a sufficient basis for proceeding to a prosecution, then they should be prosecuted. Lawyers are gatekeepers to legality and constitutionality. If the lawyers become complicit in a common plan to get around the law, to allow abuse, then yes, they should be liable.... Soldiers on the front lines who are doing their best in difficult circumstances, to protect the United States, should not be blamed for what was decided at the top.... If people like Doug Feith and Jim Haynes had said to me, "Look, Philippe. September the 11th came. The anniversary was coming. We were getting information that there were going to be more attacks. We had people that we were told had information that we need to do something about. And we therefore felt, in those circumstances, it was right to use all means appropriate and necessarily to get the information. But, with the benefit of hindsight, we realize we fell into error, we made a mistake. We accept responsibility for that. We will learn from those mistakes. We'll make damn sure it doesn't happen again." I didn't get that at all. There was not a hint of recognition that anything had gone wrong, nor a hint of recognition of individual responsibility. When you read these chapters, when you read my account with Doug Feith and with others, you will see the sort of weaseling out of individual responsibility, the total and abject failure to accept involvement. Read Mr. Feith's book. on how to fight the so-called war on terror. And it's as though the man had no involvement in the decisions relating to interrogation of detainees. And yet, as I describe in the book, the man was deeply involved in the decision making from step one. So it's about individual responsibility. And there's been an abject failure on that account.

BILL MOYERS: Do you think torture's still going on?

PHILIPPE SANDS:I don't think torture is still going on at Guantanamo.... I think there was probably far more systemic torture in Afghanistan, at Bagram and in Kandahar, but not in the military. And I think the military has now stopped. But it's important not to forget that although the military now, following in particular, the intervention of the United States Supreme Court in 2006, very important judgment in the case of Hamdan v. Rumsfeld, which said, Common Article Three of the Geneva Conventions can be invoked by all detainees at Guantanamo. So on the military side, it has stopped. But there remains the other side, the dark side, as Vice President Dick Cheney called it, the CIA. And just in the past few weeks, the President of the United States has vetoed legislation which would... prohibit the CIA from using the very techniques of interrogation that are the subject of this book....

BILL MOYERS: I read comments just this week by a noted Arab scholar, who said that if you walk the streets of Cairo today, stop at the book stalls, stop at the book stores, you see, looking out at you everywhere, photographs of Abu Ghraib and Guantanamo. That the-- this torture, these enhanced interrogate-- interrogation techniques — this cruelty-- has seized the imagination of the Arab world. And that long after all of us have gone, including the torture team, the next generation of Arabs will living with those images. What's your own sense of that?

PHILIPPE SANDS: Well, that, I'm very sad to say, is my observation. I do travel a lot. I travel, you know, in South America, I travel in Asia, I travel in the Arab world. I do a lot of work for governments around the world. And it's sad but true. The image of the United States today is that it's a country that has given us Guantanamo and Abu Ghraib. Now, that is not the America that I know. I've spent a lot of time here, you know. I'm married to an American. My kids were born in the United States. I know what the true America is. And for me, this is a distressing story, because it has allowed those who want to undermine the United States a very easy target for doing it. It's even worse than that, Bill. I mean, I've been in situations-- in a globalized world with the internet, the legal advices that have been written by people like John Yoo at the Department of Justice, and the memos written by Jim Haynes, that have been put in front of the desk of Donald Rumsfeld, have gone all over the world. They've been studied all over the world. Other governments are able to rely upon them, and to say equally, look, this is what the United States does. If the U.S. does it, we can do it. It's undermined the United States' ability to tackle corruption, abuse, human rights violations in other countries, in a massive way. And it will take 15 or 20 years to repair the damage. And that's why, irrespective of the complexion of whichever next president happens to hold that high office-- and I think irrespective of whether it's Mr. McCain or Mr. Obama, or anyone else, there will be a recognition of a need to move on. And moving on means recognizing that errors were made.

BILL MOYERS: So the next president has to wrestle with this, and so do we?

PHILIPPE SANDS: I think we're all going to be wrestling with this. And I think we have a responsibility to wrestle with it in a constructive way, precisely because I think we do face real global challenges. And the threat of terror is real. And the importance of putting the spotlight on the past is to make us learn for the future and to make sure it doesn't happen again.... You need to take the trouble to go and spend many, many hours with people, talk to them, get to know them, understand what motivated them, understand that these are not bad people. These are not people who wanted to do bad things. These are people who found themselves in a very difficult situation, under intense pressure from the top. I think once you've spoken to people, you begin to get a clearer picture. And I hope I have accurately conveyed the conversations in a fair and balanced way. There are people I liked, there are people I didn't like. There are people whose views I shared. There are people whose views I didn't share. But I thought it was terribly important to lay out in the book the range of views that were expressed, and often not even to comment on them. But to let people's views inform the reader, and the reader can then form a view as to whether they agree or disagree. But I have put the other side of the argument, against my own argument. And there will be many, I'm sure, who will disagree with me. And that's fine. Because that's what our societies are about, debating these important issues. I know what I think, though. What happened was wrong, and it needs to be sorted out.

BILL MOYERS: And it's only the beginning. There will be more hearings in June before the same committee, with David Addington saying he will be there, and many of the others: John Yoo and Haynes, and others, saying they will come voluntary and testify.

PHILIPPE SANDS: Yes.... The next hearing is slated in for the 26th of June. I think John Yoo is going to appear at that hearing. He has agreed, if I understand it, to come voluntarily...

Some Propositions on Academic Freedom from Henry Farrell

From Crooked Timber:

Academic Freedom: Some Propositions Posted by Henry : I suspect that I disagree with Eric (and very likely other CTites) on how we should think about academic freedom. To clarify this (and also to figure out better for myself why I think what I think), some propositions below.

(1) Academic freedom is not a right. I can%u2019t see any good reason why we might think that academics qua academics bear more or different rights than other rights-bearing subjects. Sometimes academics talk about academic freedom as if it were a right %u2013 but I haven%u2019t seen anything approaching a good argument to justify this quasi-claim, nor do I think there is one.

(2) As a result of (1), whatever arguments we make for the protection or extension of academic freedom should start from pragmatic considerations, not rights. What benefits flow from academic freedom for society? The usual (and in my opinion quite convincing) pragmatic case to be made for academic freedom goes as follows %u2013 that by allowing a group of individuals to engage in wide-ranging debate about a wide variety of subjects, subject only to the norms of their particular disciplines, we may expect substantial material and non-material benefits to flow to society as a whole. Here, the claim is that we need a space in society where people engaged in expert disciplines can freely debate their ideas without any fear of losing their job, in order to generate a variety of pragmatic social benefits, not least of which are (a) scientific advancement, and (b) the broader improvement of broader public debates. Note, however, that as a pragmatic claim, this only works if the causal story that it invokes is, in fact, correct.

(3) Following (2), we can define academic freedom better. As an institution or set of institutions, academic freedom is best considered as a form of delegated self-regulation, along the lines of other professions that have some self-regulatory capacities, such as medicine. Here, I borrow from a simplified notion of Jack Knight and Jim Johnson%u2019s notion of democratic deliberation as a second order means of choice.1 We may imagine that there are many spheres of life where we don%u2019t want to engage in deliberation all the time, because governing these spheres through deliberation would be inefficient, would require expert knowledge that most people don%u2019t have etc.

We don%u2019t, for example, want to deliberate with the grocer about the appropriate prices for oranges every time we want to pick up twelve of them. However, even if we don%u2019t want to deliberate over everything, we do want to deliberate over the means that are appropriate to different spheres %u2013 so that the decision to leave the price of oranges to market forces, to delegate decision making over telecommunications policy to a specialized authority etc, should be the product of democratic choice, and contingent on a continued democratic consensus that this form of delegation is appropriate. In this specific instance, we may reasonably imagine (at least as a first approximation) that reasonable deliberators might want to delegate a considerable deal of authority for the governance of the academy to academics themselves, reasoning that overt politicization of the academy is likely to limit the free flow of argument, and that political decision makers in any event will usually lack the technical knowledge to determine what makes for good or bad scholarship.

(4) Even so, to the extent that academic freedom is the result of delegated self-regulation, academics carry a burden of justification. They need to be able convincingly to argue to the general public that a broad definition of academic freedom is, in fact, broadly beneficial for that public and not just for academics themselves. Members of the public are entitled to treat academics with a moderate degree of skepticism when they make claims of this sort; after all, it may be difficult for academics to separate out their own self interest from the public good. Academics, if they are to justify their privileges of self regulation (for academic freedom is indeed a kind of privilege), need to be able to persuade the public that it is a good thing. Merely harrumphing about academic freedom without justifying it doesn%u2019t cut the ice.

Some academics may reply that this call for public justification is unreasonable in a political climate where academics are the subject of irrational attack from a variety of critics. This is far from being a stupid argument %u2013 but I don%u2019t see that the imperfections of our current form of democracy are any greater when it comes to discussions over academia than they are with regard to a whole host of other issue-areas which (I suspect) most academics should be subject to democratic control, at least in the final analysis along the lines suggested above.

(5) It is difficult to cover cases like that of John Yoo under a pragmatically defensible account of academic freedom. The pragmatic justification for academic freedom, as I see it, is that it allows academics to argue about a variety of issues without worrying too much about whether they will lose their jobs for expressing unpopular ideas. If John Yoo were to lose his job for having written the torture memos for the US government, I can%u2019t see how this free flow of argument and ideas within the academy would be hurt one whit. None of Yoo%u2019s critics, to my knowledge, are arguing that he should lose his job for his ideas; rather that he should lose his job for actions that he took as a servant of the US government. Similarly, academic freedom wouldn%u2019t apply, say, to academics in Europe in the 1960s and 1970s, who moved from espousing the ideas of radical left wing terrorist groups to actually helping them in material ways.

(6) Nonetheless, John Yoo shouldn%u2019t lose his job. As I%u2019ve written before there are excellent pragmatic reasons why employers shouldn%u2019t fire people for political activities that take place outside the workplace. A society in which individuals can be fired without cause is a society in which individuals will very reasonably fear that they will face retaliation if they engage in unpopular forms of political activity.

It seems to me that in the absence of (a) a determination from a court (not necessarily a US court) that Yoo is in fact guilty of criminal activities up to and including war crimes, or (b) a determination from the relevant bar association that he should be disbarred, that firing him would be to make the kind of judgment about his political activities that the University (or any employer) shouldn%u2019t be in the business of making. I%u2019ve seen some arguments suggesting that the quality of his legal advice to the USG was so bad that it constitutes grounds for firing %u2013 so far, I%u2019m not convinced (although I%u2019m not closed to persuasion). Note, anyway that my argument against firing him doesn%u2019t appeal to academic freedom. Instead, it appeals to a more general norm %u2013 that people, whether they be academics or non-academics shouldn%u2019t be fired for legal political activities that they undertake outside the workplace.

(7) More an aside than anything else %u2013 much of the discussion about Yoo%u2019s case dithers between vague appeals to academic freedom, and specific discussions of the nature of Yoo%u2019s contractual arrangement with the University of California at Berkeley. Strictly speaking, debates over academic freedom that turn on detailed discussion of the ins and outs of Yoo%u2019s (or any other academic%u2019s) contract are yer bum. The relevant question is: if Berkeley found a loophole in Yoo%u2019s contract tomorrow that allowed them to fire him for writing the torture memos, and used this loophole, would we consider this to be a breach of academic freedom or not?

I%u2019ve argued that this would not be a breach of academic freedom, but that it would be a breach of the broader norm that we shouldn%u2019t fire people for their political activities. But while we may (and, I think, should) try to instantiate both of these norms in contracts and in laws, they shouldn%u2019t be limited to situations where those contracts or laws clearly apply. Otherwise, academic freedom would effectively be limited to a minority of the professoriate (those with tenure, or at a pinch with tenure-track jobs), while work freedoms would be limited to those lucky individuals who live in states that have some approximation of %u201Cfor cause,%u201D or who work for employers who have granted them these rights.

So there you are. Am open to disagreement and correction on any and all of this, but think it%u2019s no harm to clarify exactly where I am coming from when I opinionate about these topics.

1 Without implying that either Jack or Jim would necessarily agree with this extension of their argument %u2013 as best as I can tell, they wouldn%u2019t.

Anybody Have a Copy of This Email?

An email from John Yoo I would like to have:

Memo: Laws Didn't Apply to Interrogators: Yoo, now a law professor at the University of California at Berkeley, defended the [Torture M]emo in an e-mail yesterday, saying the Justice Department altered its opinions "for appearances' sake." He said his successors "ignored the Department's long tradition in defending the President's authority in wartime." "Far from inventing some novel interpretation of the Constitution," Yoo wrote, "our legal advice to the President, in fact, was near boilerplate"...

More John Yoo Blogging: Department of "Huh?"

On Brian Leiter's weblog, it appears that there is a Berkeley law school professor who is (a) anxious that people far and wide know that he does not share the views John Yoo advanced in his Torture Memo, and yet (b) anxious that nobody know who he is.

I don't think it works that way.

If you are anxious to remain anonymous, you are not anxious that people know you do not share John Yoo's views.

If you are anxious that people know you do not share John Yoo's views, you are not anxious to remain anonymous.

Brian Leiter's Law School Reports: Thoughts from a Berkeley Professor on the Yoo Case: A law professor at Berkeley writes:

Your postings on academic freedom and the John Yoo case have been pitch-perfect, from my point of view. Thank you for bringing some sanity to a sad and challenging affair. This is obviously a very painful topic for those of us at Berkeley, for a whole host of reasons.

1. There is the sadness at seeing a colleague, foolish perhaps in his desire to be near power and/or have his voice heard, and substantively (in my opinion) about as wrong as he could be, but a hardworking and responsible member of our community, having his reputation and career taking a beating; even a self-invited beating is painful to watch when it is in progress.
2. There is the sadness at seeing our integrity as a community challenged. Like many US law schools we welcomed a number of prominent European Jewish emigres during the WWII years (e.g., David Daube (Freiburg, Oxford), Albert Ehrenzweig (Heidelberg, Vienna), and others); I believe this not only helped launch the university into the first ranks of research universities worldwide, it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses. In light of this history, at a personal level I thought long and hard about how I should treat John Yoo when he returned to campus; many of us still struggle with questions of how to balance concern for complicity with the requirements of collegial civility. Even so, never once did I consider a move to revoke John's tenure, because he was in complete compliance with our standards. Only if that changes, due to a criminal conviction or the like, would it be appropriate to revisit the issue, in my opinion.
3. This is painful because many people who do not know us might perhaps assume that John's work is representative of our views. As you well know, he is as much of an outlier here as he would be at most US law schools.  Consider for example the work of my colleague, Chris Kutz. His essay on "Torture, Necessity, and Existential Politics," 95 Cal. L. Rev. 235 (2007), is a wonderful counterpoint to the memos John Yoo worked on, and it expresses something much closer to what I believe is the consensus of the Boalt Hall faculty regarding the torture issue. (Incidentally, Chris' book, Complicity: Ethics and Law for a Collective Age, New York:  Cambridge University Press (2000), has been a big help to me in deciding how to relate to John in light of his official actions.) Anyone looking into the John Yoo issue, and particularly wondering how his views fit with those of his colleagues, are advised to consult Chris Kutz' work. Indeed, this is perhaps the best way to demonstrate our views on academic freedom. We are not afraid to let John say what he thinks, because Chris can say what he thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell.

I must say that I find the word "painful," used in this context, extremely ill-chosen. Being waterboarded is painful. Thinking that people elsewhere think you agree with John Yoo because you haven't spoken up because you would then be embarrassed to sit next to him at faculty meetings... that does not seem painful to me.

What Does John Yoo Believe?

A correspondent sends me to a 2000 article by Yoo, "The Imperial President Abroad", an article that opens:

Aside from getting himself impeached, President Clinton's most signal impact on the Constitution, and the rule of law it embraces, will have been in the area of foreign affairs. As his domestic agenda met with frustration in a Republican Congress, President Clinton exercised the powers of the imperial presidency to the utomost in the area in which those powers are already at their height--in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law...

That's a hell of an opening paragraph from someone who was, less than three years later, to say that the president has the power to order the torture and maiming of prisoners no matter what laws congress may have passed or treaties the United States has signed.

What does Yoo mean by saying that Clinton has "undermine[d] democratic accountability and respect for the rule of law? He turns out to mean:

• "The Clinton administration's use of the military in several long-term interventions has rendered the War Powers Resolution a dead letter.... [Its failure to obtain] affirmative congressional authorization for its conduct... is still open to constitutional question..."
• "The administration has used troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear..."
• "In Kosovo... American troops... serve[d] under... non-American... commanders, such as British General Michael Jackson.... [This] threatens that basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..."

The only way I can find to reconcile these arguments with those of the Torture Memo is to conclude that Yoo truly believes nothing at all.

Can anybody help me here? For the president's commander-in-chief power to extend to the ordering of torturing and maiming against natural law, solemn treaty, and congressional enactment but not to extend to placing U.S. troops under NATO command?...

Does anyone understand how Yoo can pass the Turing test here?

---

People have been asking "what is Youngstown?" as it more and more becomes the pivot around which lawyers' discussions of the matter of John Yoo's Torture Memo wheel. For example, Boalt Hall graduate "Ugh" writes in:

Grasping Reality with Both Hands: The Semi-Daily Journal Economist Brad DeLong: And John Yoo clearly knows about the Youngstown case, he taught it to me in Con Law I in the spring of 2000. Strangely, he somehow omitted his theory of POTUS as King that semester, as if, somehow, he might not have believed it. Huh.

Youngstown is the Korean War steel seizure case: Youngstown Sheet & Tube Co. v. Sawyer. During the Korean War President Harry S Truman seized the steel mills to keep them running. The Supreme Court said that he could not do that: it limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress.

Steel company attorney John W. Davis closed his oral argument before the Supreme Court with Thomas Jefferson: "In questions of power let no more be said of confidence in man but bind him down from mischief by the chains of the Constitution." The Court voted by six to three to affirm the District Court's injunction barring the President from seizing the steel plants.

The plurality opinion by Justice Hugo Black held that the president had no power to act without congressional or constitutional authorization. Robert H. Jackson's concurrence was less absolutist, and divided the constitutional issues into three cases--(1) presidential action in accord with express or implied authority from Congress, (2) presidential action in the face of congressional silence, and (3) presidential action in defiance of congressional legislation--classified Youngstown as category 3 in which presidential powers were at their "lowest ebb," and so disallowed Truman's action.

Since then the Supreme Court has expressly cited Youngstown and the Jackson classification as authority for its decisions invalidating Nixon's warrantless wiretaps, permitting litigation against thep to proceed in Clinton v. Jones, limiting the power of the president to intervene in state judicial process in Medellín v. Texas, and in Hamdan v. Rumsfeld.

Youngstown is good law, and bears heavily upon the issues of John Yoo's Torture Memo. Yoo did not fulfill his duty to his clients or to the law in ignoring it in the Torture Memo--at the very least he had a duty to explain his (erroneous) implicit claim that the principles of Youngstown did not apply because the situation here was in some way distinguished from the situation there.

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

Top Bush aides pushed for Guantánamo torture | World news | The Guardian

OGMB sends us to:

Top Bush aides pushed for Guantánamo torture: Senior officials bypassed army chief to introduce interrogation methods by Richard Norton-Taylor The Guardian, Saturday April 19 2008: America's most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques of terror suspects held at Guantánamo Bay, leading to the US military abandoning its age-old ban on the cruel and inhumane treatment of prisoners, the Guardian reveals today. General Richard Myers, chairman of the US joint chiefs of staff from 2001 to 2005, wrongly believed that inmates at Guantánamo and other prisons were protected by the Geneva conventions and from abuse tantamount to torture. The way he was duped by senior officials in Washington, who believed the Geneva conventions and other traditional safeguards were out of date, is disclosed in a devastating account of their role, extracts of which appear in today's Guardian.

In his new book, Torture Team, Philippe Sands QC, professor of law at University College London, reveals that:

• Senior Bush administration figures pushed through previously outlawed measures with the aid of inexperienced military officials at Guantánamo.
• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of vice-president Dick Cheney, and at Donald Rumsfeld's defence department.
• The Guantánamo lawyers charged with devising interrogation techniques were inspired by the exploits of Jack Bauer in the American TV series 24.
• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, David Addington and William Haynes. Also involved were Doug Feith, Rumsfeld's under-secretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals. The revelations have sparked a fierce response in the US from those familiar with the contents of the book, and who are determined to establish accountability for the way the Bush administration violated international and domestic law by sanctioning prisoner abuse and torture. The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo Bay and Abu Ghraib prison in Iraq by blaming junior officials. Sands' book establishes that pressure for aggressive and cruel treatment of detainees came from the top and was sanctioned by the most senior lawyers.

Myers was one top official who did not understand the implications of what was being done. Sands, who spent three hours with the former general, says he was "confused" about the decisions that were taken. Myers mistakenly believed that new techniques recommended by Haynes and authorised by Rumsfeld in December 2002 for use by the military at Guantánamo had been taken from the US army field manual. They included hooding, sensory deprivation, and physical and mental abuse. "As we worked through the list of techniques, Myers became increasingly hesitant and troubled," writes Sands. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process. He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture. "We never authorised torture, we just didn't, not what we would do," Myers said. Sands comments: "He really had taken his eye off the ball ... he didn't ask too many questions ... and kept his distance from the decision-making process."

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways. The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans. At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job". He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

Impeach George W. Bush. Impeach Richard Cheney. Impeach all present and former members of their personal staffs. Impeach Gonzales, Addington, Haynes, Feith, Bybee, and Yoo. Impeach every present and former cabinet and subcabinet official in the Bush administration.

Do it now.

Top Bush aides pushed for Guantánamo torture | World news | The Guardian

OGMB sends us to:

Top Bush aides pushed for Guantánamo torture: Senior officials bypassed army chief to introduce interrogation methods by Richard Norton-Taylor The Guardian, Saturday April 19 2008: America's most senior general was "hoodwinked" by top Bush administration officials determined to push through aggressive interrogation techniques of terror suspects held at Guantánamo Bay, leading to the US military abandoning its age-old ban on the cruel and inhumane treatment of prisoners, the Guardian reveals today. General Richard Myers, chairman of the US joint chiefs of staff from 2001 to 2005, wrongly believed that inmates at Guantánamo and other prisons were protected by the Geneva conventions and from abuse tantamount to torture. The way he was duped by senior officials in Washington, who believed the Geneva conventions and other traditional safeguards were out of date, is disclosed in a devastating account of their role, extracts of which appear in today's Guardian.

In his new book, Torture Team, Philippe Sands QC, professor of law at University College London, reveals that:

• Senior Bush administration figures pushed through previously outlawed measures with the aid of inexperienced military officials at Guantánamo.
• Myers believes he was a victim of "intrigue" by top lawyers at the department of justice, the office of vice-president Dick Cheney, and at Donald Rumsfeld's defence department.
• The Guantánamo lawyers charged with devising interrogation techniques were inspired by the exploits of Jack Bauer in the American TV series 24.
• Myers wrongly believed interrogation techniques had been taken from the army's field manual.

The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, David Addington and William Haynes. Also involved were Doug Feith, Rumsfeld's under-secretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals. The revelations have sparked a fierce response in the US from those familiar with the contents of the book, and who are determined to establish accountability for the way the Bush administration violated international and domestic law by sanctioning prisoner abuse and torture. The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo Bay and Abu Ghraib prison in Iraq by blaming junior officials. Sands' book establishes that pressure for aggressive and cruel treatment of detainees came from the top and was sanctioned by the most senior lawyers.

Myers was one top official who did not understand the implications of what was being done. Sands, who spent three hours with the former general, says he was "confused" about the decisions that were taken. Myers mistakenly believed that new techniques recommended by Haynes and authorised by Rumsfeld in December 2002 for use by the military at Guantánamo had been taken from the US army field manual. They included hooding, sensory deprivation, and physical and mental abuse. "As we worked through the list of techniques, Myers became increasingly hesitant and troubled," writes Sands. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process. He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture. "We never authorised torture, we just didn't, not what we would do," Myers said. Sands comments: "He really had taken his eye off the ball ... he didn't ask too many questions ... and kept his distance from the decision-making process."

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: "I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways. The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans. At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job". He added: "Haynes, Feith, Yoo, Bybee, Gonzalez and - at the apex - Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court."

Impeach George W. Bush. Impeach Richard Cheney. Impeach all present and former members of their personal staffs. Impeach Gonzales, Addington, Haynes, Feith, Bybee, and Yoo. Impeach every present and former cabinet and subcabinet official in the Bush administration.

Do it now.

Hoisted from Comments: Mark Graber, John Yoo, and the Problem of Academic Evil

Blissex writes:

Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal: I am awed and impressed by BDL's arguments about Taney and Graber, which need to be recounted, because they are the central axis of the difference between the two Americas, the America of winners who send plague blankets to "untermensch" natives or who fight wars to keep treating as animals millions of imported "untermensch", and the America of losers who fight bloody wars to free their cruelly imprisoned compatriots and create the Peace Corps and try to lift even foreigners out of their poverty.

But this comment seems to be, however well meaning, extraordinarily hypocritical:

And at what point did the American people have the opportunity to condone this conspiracy with their votes? I say 'never.' For many years, the Bush Administration went out of its way to make sure we, the people, had no idea what was being done in our names with respect to "enhanced interrogation techniques." And it pretty much held the line about whether anything was being done at all until Abu Ghraib, which was sold as the doing of a few rogue National Guardsmen. The Bush Administration maintained uncertainty and deniability about its role in such activities until it was too late for the voters to indicate their outrage at the ballot box.

To me and other foreigners it seems pretty clear that the huge re-election victories of Republicans in Congress and for the presidency post 9/11 were based on a campaign of well understood "whatever it takes" wink/nudge and that the American voters enthusiastically backed a strategy of "better safe than sorry" where the rights of a few thousand brown (instead of red or black skinned) "untermensch" are insignificant compared to the safety of terrified USA voters. Torturing un-persons "just in case" seemed such an attractive option.

Am I the only malicious mind who disagrees that innocent, well meaning USA voters were hoodwinked and they did not really mean to vote for more "whatever it takes" or "better safe thansorry"? Well, some others seem to have shared the same impression, for example this Financial Times commentator (in 2006, not the day after the WTC atrocity):

http://news.FT.com/cms/s/2817d81c-b067-11da-a142-0000779e2340.html: But is clear leaders of both parties lack the confidence to challenge the mood of xenophobia that exists outside Washington. Instead they are fuelling it. In some respects the Democrats are now as guilty of stoking fears on nationalsecurity as the Republicans. Their logic is impeccable. A majority of Americans believe there will be another large terrorist attack on American soil. Such is the depth of anxiety that one-fifth or more of Americans believe they will personally be victims of a future terrorist attack. This number has not budged in the last four and a half years. Mr Bush has consistently received a much higher public trust rating on the war on terror than the Democrats. Without this -- without the constant manipulation of yellow and orange terror alert warnings at key moments in the political narrative -- Mr Bush would almost certainly have lost the presidential race to John Kerry in 2004.

But it is easy to dismiss all this as the inane gibbering of the foreign surrender monkeys that hate America and want the terrorists to win....

[Brad DeLong writes that he "doesn't see an argument" in Mark Graber's:]

[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.

But I do see TWO ARGUMENTS here, and [a third] implicit one.

Mark Graber's first argument is the same that he uses in the Taney case, and it is that Constitutions are not legal agreements, they are political and cultural ones, and that if they are not supported by the politics and culture of the majority. Nothing new there, except that Mark Graber makes a stronger case for this than is warranted. Anyhow see Tocqueville etc. quotes below.

The second argument is encapsulated in "Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture."... [T]orture is wrong, but this is irrelevant if public opinions is in favour, and this follows from the previous argument, so changing public opinion is far more important than insisting on the respect of unpopular laws.

Both I think are fair points as far as they go -- because in the end unpopular laws can only be enforced with guns, "ultima ratio regum" and not just of kings.

Quotes from Tocqueville:

When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To the executive power? That is appointed by the majority and servers as is passive instrument. To the public police force? They are nothing but the majority under arms. To the jury? That is the majority invested with the right to pronounce judgements; the very judges in certain states are elected by the majority. So, however unfair or unreasonable the measure which damages you, you have to submit.

A striking example of the excesses which the despotism of the majority may occasion was seen in Baltimore during the war of 1812. At that time the war was very popular in Baltimore. A newspaper opposed to it aroused the indignation of the inhabitants by taking that line. The people came together, destroyed the printing presses and attacked the journalists' premises. The call went out to summon the militia which, however, did not respond to the call. In order to save those wretched fellows threatened with by the public frenzy the decision was taken to put them in prison like criminals.

The precaution was useless. During the night the people gathered once again; when the magistrates failed to summon the militia, the prison was forced one of the journalists was killed on the spot and the others were left for dead. The guilty parties, when standing before a jury, were acquitted.

I said to someone who lived in Pennsylvania: "Kindly explain to me how, in a state founded by Quakers and celebrated for its tolerance, free Negroes are not allowed to exercise their civil rights. They pay their taxes; is it not fair that they should have the vote?"

"You insult us," he replied, "if you imagine that our legislators committed such a gross act of injustice and intolerance."

"Thus the blacks possess the right to vote in this country?"

"Without any doubt."

"So, how does it come about that at the polling-booth this morning I did not notice a single Negro in the crowd?"

"That is not the fault of the law," said the American to me. "It is true that the Negroes have the right to participate in the elections but they voluntarily abstain from making an appearance."

"That is indeed very modest of them."

"It is not that they are refusing to attend, but they are afraid of being mistreated. In this country it sometimes happens that the law lacks any force when the majority does not support it. Now, the majority is imbued with the strongest of prejudices against the blacks and the magistrates feel they do not have enough strength to guarantee the rights which the legislator has conferred upon them."

"So you mean that the majority, which has the privilege of enacting the laws, also wishes to enjoy the privilege of disobeying them?"...

[T]he implicit one... is that instead of spending more money to gather intelligence, find proofs and thus raising taxes on USA voters, it is much cheaper to torture "people who do not look like us" as a cost-saving shortcut. Public opinion realizes that is much cheaper to torture a few thousand nobody-cares just in case, than to raise taxes on deserving, hard working "people who do look like us" to pay for better intelligence.

So those who think that the constitution is more than a piece of paper full of precatory verbiage should give that up and make the case for raising taxes on "people like us" to spare a few thousand nobody-cares "unpeople who are not like us" some cost-saving techniques.

Basically, the implicit argument is that USA voters care what's in it for them as to the case against torture, not what's in it for the potential victims of torture, who are all brown-skinned nobodies with funny foreign names, and this is what matters when one is against torture.

Finding the substantive argument against the "f*ck them, we are fully vested" position as to brown skinned suspects is more important than insisting on quaint notions like legalism which never had much traction in USA politics anyhow, except where it benefits the ruling classes...

Let me say just three things:

• The crucial middle of the American electorate in 2002 and 2004 believed George W, Bush when he said that "we do not torture" and that only "harsh interrogation measures" that were effective were being used on a very few high-value guilty criminals. You can convict a majority of the American electorate of cowardice and stupidity, but not, I think, of willful criminality
• All peoples, everywhere, are vulnerable to Reichstag Fire scenarios; we East Africa Plains Apes are who we are, and we need to try to build institutions to guard against our weaknesses.
• Constitutions are not just cultural and political agreements; they are legal, cultural, and political acts that shape the thinking of the next generation, and of the generation after that. They are attempts to improve upon whatever decisions would be made by the majority of the moment--and so the argument that they are useless because they are illegitimate if they try to stand aginst the majority of the moment is funamentally incoherent.
• Of all countries in the world, the United States is one of the leaders--when it is its bet self at least--in resisting the "f*ck them, we are fully vested" popsiiton

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.

---

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.

---

"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.