Sunday, April 13, 2008

John Yoo and Tenure

I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.

The National Lawyer's Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill's views were "merely" unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo's speech has led to tangible results, results that the NLG claims constitute war crimes.

Brian Leiter, who was a defender of Churchill's right to speak his mind has come to Yoo's defense while making his distaste for Yoo's views clear. I think that I fall into the same camp. As a Boalt alum I am embarrassed to have my alma mater associated with Professor Yoo's legal advice to the Bush administration. Yet I am proud of Dean Edley for coming to his colleague's defense:
"My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses, including a great many of his colleagues at Berkeley," Edley wrote. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless," he added."


Blogger Patrick S. O'Donnell said...

I think the argument that John Yoo, at least at this juncture, should not be fired, is persuasive, for reasons provided by Leiter, Dean Edley, et al. To the degree that Yoo's colleagues find his legal scholarship wanting, they can rely on informal professional sanctions and shaming mechanisms not unlike those often used in the enforcement of social norms generally. However, and not unrelated to this, I think the more pressing question, and one that appears to have been broached by the National Lawyer's Guild, is the extent to which the "infamous torture memo" reflects legal (in)competency as such, *given his position assisting the Attorney General in the Office of Legal Counsel.* So it has nothing whatsoever to do in the first instance with First Amendment issues nor Yoo's scholarship, including his specific legal and political theories.

I happen to think that the torture memo *does* reveal legal incompetence and that it is thus important to concentrate on this question. For further analysis, please see (in addition to the wonderful stuff over at Balkinization by Lederman, Levinson, Balkin, et al) the post (and comments) on this at the Legal Ethics Forum by Brad Wendel:

4/14/2008 8:01 AM  
Anonymous Anonymous said...

What if Yoo got disbarred based on a lack of ethics related to his legal work? Would or should that change anything?

4/15/2008 10:37 PM  
Blogger Patrick S. O'Donnell said...

In reading afresh Stanley Karnow's Vietnam: A History (2nd ed., 1991) I came across this nugget, which bears comparison to John Yoo's legal work for the Bush administration, although in this instance, the constitutional blessing was after the fact:

"...[I]t was doubtful if Nixon had the authority to broaden the war [into Laos and Cambodia] without congressional endorsement--just as it was doubtful that he had the power to begin, in secrecy, the bombing of Cambodia the year before [1969]. Almost as an afterthought, he assigned the task of preparing a legal justification to William Rehnquist, an assistant attorney general, who came up with the argument that the law mandated presidents to deploy troops 'in conflict with foreign powers at their own initiative.'"

It's clear that Rehnquist's career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of Yoo's infamous Torture Memo, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia. (cf. Richard Falk's work on the Vietnam War and international law)

4/16/2008 1:23 AM  
Blogger Patrick S. O'Donnell said...

Doing a bit of research I discovered that Bruce Shapiro wrote something about the remarkable historical connection between Rehnquist's white paper, "The President and the War Power," in his capacity as head of the Office of Legal Counsel and Assistant Attorney General Jay Bybee's Torture Memo:

'What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration's interrogation policy.

The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of "cruel, inhuman or degrading" interrogation techniques--including beatings and sexual violations like those in Abu Ghraib--simply get reclassified as Not Torture. The memo's language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President's commitment to humane treatment of prisoners.

Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee's most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to "detentions and interrogations of enemy combatants pursuant to [Bush's] Commander-in-Chief authority." All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee's precise language.

It is in defense of his view of the Commander in Chief's legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist's 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration's 2002 and 2003 memorandums. Just as Bybee finds that torture isn't torture, Rehnquist argued that the invasion of Cambodia wasn't really an invasion: "By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia." The Bybee memo offers officials accused of torture the "necessity" defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was "necessary to assure [American troops'] safety in the field."

In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief's authority at its most expansive and unreviewable: The President's war power, he wrote acerbically, must amount to "something greater than a seat of honor in the reviewing stand." Cambodia--where the devastation of the war and the Nixon Administration's carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust--amounted to "the sort of tactical decision traditionally confided to the commander in chief."

For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today's Patriot Act.

The authority of Nixon and his successors was soon curtailed--at least on paper--by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers--among them Rehnquist, Rumsfeld and Vice President Dick Cheney--have repeatedly sought to regain the expansive presidential power asserted in Rehnquist's memo.

This is what is really at stake in the torture scandal. The circle of history has come around: The Bush Administration's theory of unconstrained war powers connects straight back to its Nixonian origins.

[....] The Bush Administration's memos not only facilitate torture as public policy. Like the Nixon Administration in 1970, they articulate a philosophy of the presidency best described as authoritarian. That is the hidden message of Abu Ghraib.'

Please see

4/16/2008 8:07 AM  

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