The Pressure on Berkeley
Many of you have probably followed the debate at the University of Berkeley re: the position of Professor John Yoo. Briefly, Yoo is deemed to be one of the chief enablers of the U.S. torture program and the author of key memos in this area. The New York Times, in an editorial, describes the memos (in part) as follows:
“The March 14, 2003, memo was written by John C. Yoo, then a lawyer for the Justice Department. He earlier helped draft a memo that redefined torture to justify repugnant, clearly illegal acts against Al Qaeda and Taliban prisoners.
The purpose of the March 14 memo was equally insidious: to make sure that the policy makers who authorized those acts, or the subordinates who carried out the orders, were not convicted of any crime. The list of laws that Mr. Yoo’s memo sought to circumvent is long: federal laws against assault, maiming, interstate stalking, war crimes and torture; international laws against torture and cruel, inhuman or degrading treatment; and the Geneva Conventions.
Phillipe Sands has also weighed in strongly noting that “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.”
Economist/blogger/Berkeley professor J. Bradford DeLong joins the fray by asking whether it is time
“…for some appropriate arm of the university that is expert enough to have an informed view to consider the matter, and to advise me and the rest of the faculty (a) why John’s memo of March 14, 2003 does not, despite appearances, rise to the level of participating in a conspiracy to torture goatherds from Afghanistan who have been sold to the military by clan enemies falsely claiming they are members of Al Qaeda; and (b) why John’s memo of March 14, 2003, does not, despite appearances, constitute a breach of the duty of a lawyer to his clients (in this case, the majors and colonels of the U.S. army who did the torturing) of a level equivalent to that of the falsification of evidence in a scholarly work–or to say (c) that in spite of substantial evidence of participation in a conspiracy to torture innocent goatherds and to deceive the majors and colonels who were his clients and acted in reliance on his advice, the Kantorowicz freedom-of-academic-speech position still applies.”
While I would not have framed my argument in the same way as DeLong, I do feel that Berkeley has questions to answer re: Yoo. Actually, let me be more accurate as my feeling on the matter are quite clear:
1. Mr. Yoo should not teach law at Berkeley or anywhere else.
2. The California Bar Association should begin proceedings to remove his license to practice law.
I also think that he has a criminal case to answer but fear that this will have to wait until the next Administration takes office.
Finally, I find it hard to argue with the thrust of this comment by Greenwald:
“The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we’re now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies. “
Related posts:
More Information, PLEASE!
I think the answer is not to draw a conclusion about Yoo, or summarily dismiss him from Berkeley, at this point. Rather, I think the burden is on John to come forward with his own story, and for other administration officials to do the same. If they fail to do so, then the burden shifts to Congress and concerned citizens to press for a deeper investigation.
But short of that, we just don’t know anywhere near enough about what actually happened within the administration in the early days after 9/11 to conclude whether Yoo or others were quite as knowingly or (to semi-intentionally use a legal term) grossly recklessly endorsing torture as Raj, DeLong and others suggest.
Yes, there’s a case to be made that Yoo was at least reckless in his disregard for the consequences of his legal advice, but I wonder whether fuller context from the time would illuminate a slightly different story: The administration, like the country, was probably questioning a lot of fundamental assumptions they suspected might have left this country vulnerable on 9/11–some political, some military, and some legal. While it’s no excuse to suspend robust legal analysis and ultimate sound decision-making, it’s at least understandable that lawyers charged with parsing what they considered a substantially new geopolitical/security landscape in legal terms would have been inclined to push the boundaries of theoretical questions like what type of treatment is permissible.
I’m no apologist for torture memos, but I do want more information before I level charges of intentional or reckless abetment of torture. I’m involved in a working group now considering precisely what steps might be needed to achieve that clarity, and for those interested, I would be happy to share some of our conclusions offline.
Comment on May 19, 2008 @ 6:17 am
John Yoo’s memo is fair game for criticism and everyone who wishes to criticize it should read it.
The critic should then put forward the basis on which it challenges Yoo’s conclusions. A different textual interpretation, cites to other authors / commentators, a reference to a moral code (Bhudda teaches us …, the Bible says …).
A lawyer can write that there is no applicable domestic or international law specifically banning the U.S government from using (the xyz enhanced interrogation technique). That conclusion may be correct or incorrect. It may be correct but then the debate turns on whether the XYZ enhanced interrogation technique is raises to a level that is universally, generally, or rarely considered to be torture. The next step of the analysis is what laws ban torture. [Most everyone agreeing that torture is a bad thing. Not everyone agreeing that XYZ enhanced interrogation is torture].
However, any talk or proposal to disbar, punish, or ban John Yoo, is ridiculous on its face.
Comment on May 19, 2008 @ 11:19 am
I enjoyed the article and comments – very intelligent and even elegant, but I must say, even if you disagree with the professor, he had a presidential assignment and we reach a truth by examining all aspects of a problem. He might not write that today and all of us have written material that we may think is inappropriate today. I might ask, what in his classes today is inappropriate to academic freedom. We have a lot of far out liberals and a few conservatives expounding a dialogue to get students to think. The truth may lay in the middle, but that is for the student to decide.
Comment on May 19, 2008 @ 2:07 pm
According to Purohit:
- John Yoo is guilty until proven innocent
- the burden to prove innocence is on John Yoo
- John Yoo should be punished, and punished severely, for a crime that Purohit refuses even to state
- a lawyer can be prosecuted for erroneous advice rendered to his client, regardless of the chilling effect this has on the effective assistance of counsel
Purohit’s positions are a disgrace, let alone unconstitutional and fascist. His was a post that should not have been made.
Comment on May 19, 2008 @ 8:47 pm
Both the legal plausibility and the (professional) ethical implications of the Yoo torture memos have been well covered by a number of serious legal academics, most notably by Professor David Luban of Georgetown. For those interested in the excellent work that has already been done in this area, poke around on Google or visit http://balkin.blogspot.com/2008/04/march-2003-yoo-memo-emerges-not-april.html.
I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.
1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques.
(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)
2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.
In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)
Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!
*In the interests of full disclosure, Mr. Rojansky is a friend of mine.
Comment on May 21, 2008 @ 1:04 am
Both the legal plausibility and the (professional) ethical implications of the Yoo torture memos have been well covered by a number of serious legal academics, most notably by Professor David Luban of Georgetown. For those interested in the excellent work that has already been done in this area, poke around on Google or visit http://balkin.blogspot.com/2008/04/march-2003-yoo-memo-emerges-not-april.html.
I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.
1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney )in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques), Yoo’s future doesn’t look too bright.
(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)
2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.
In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)
Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!
*In the interests of full disclosure, Mr. Rojansky is a close friend of mine.
Comment on May 21, 2008 @ 1:34 am
Both the legal plausibility and the (professional) ethical implications of the Yoo torture memos have been well covered by a number of serious legal academics, most notably by Professor David Luban of Georgetown. For those interested in the excellent work that has already been done in this area, poke around on Google or visit http://balkin.blogspot.com/2008/04/march-2003-yoo-memo-emerges-not-april.html.
I share with Yoo’s critics a deep disdain for the normative and practical implications of the torture memos. Nevertheless, the penalties Yoo should face for writing these memos and endorsing them as a member of our profession differ depending on the institution imposing the sanction. Think about what Yoo’s actions mean for his membership and participation in the activities of the following institutions.
1. The State Bar of California. If Yoo is currently licensed, the California State Bar (CSB) should seriously consider whether writing the torture memos constitutes a violation of his ethical and professional duties as a lawyer. The torture memos clearly violate a number of domestic federal laws and international treaties; that cannot be gainsaid. So unless an investigation could somehow show that Yoo was (1) incapacitated while composing these exemplars of poor legal reasoning or (2) some other unforeseen loophole excuses his undeniably disgraceful performance as an attorney )in composing these memos for the express purpose of giving Bush 43 carte blanch with respect to interrogation techniques), Yoo’s future doesn’t look too bright.
(The background to all of this, of course, is that for complicated reasons our government has decided that various intelligence organizations, like the CIA, can no longer work in complete secrecy, thus the need for a flimsy, “legal” justification for tactics that have long been in the employ of every government on the face of this earth.)
2. The University of California, Berkeley. Yoo is on the faculty at Berkeley, and his charge there is to teach the law. One might think that teaching the law effectively requires a solid grasp of its practical workings (along with its theoretical underpinnings), but hiring trends (lots of PhD/JDs with no experience as practitioners) and scholarship “standards” (drivel and interdisciplinary nonsense disguised as scholarship) tell an entirely different story.
In short, if Yoo is fired for being a bad lawyer/scholar, one might think about firing a good 1/4 of the faculty members at elite law schools. (Which is not to say that I think firing Yoo is a bad idea; I merely raise the cost associated with applying the principle consistently.)
Moreover, one might even argue that the job of a good law professor is quite different than what is required of a solid practitioner: whereas a good practitioner must cleverly work within the law (without wishing it were otherwise), an outstanding law professor must consider what the law should be, were we dwelling in a perfect regulatory utopia. Ah, what a vision. But I digress. Of course Yoo’s vision is hardly a utopia, but that’s not the point. Lawyers make the law do things, while professors imagine what they could do with the law, were the law only different!
*In the interests of full disclosure, Mr. Rojansky is a close friend of mine.
Comment on May 21, 2008 @ 6:51 am