April 23, 2008

John Yoo, Berkley: Alex Whelan

Berkeley Defends John Yoo With Nonsense

Via Marty Lederman, I see that Christopher Edley, Jr., the Dean of the UC Berkeley School of Law, has decided to step up and defend John Yoo, the lawyer who wrote the now infamous memos legalizing torture. First the letter (all emphasis mine) and then my response:

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers' Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo's continuing employment at UC Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley's classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments--be they left or right or lazy--will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

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. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he 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. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must--perhaps as an ethical matter?--provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: ... Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct--that is, some breach of the professional ethics applicable to a government attorney--material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

John Yoo wrote the memos that provided the legal rational and defense for the president's torture regime. As today's AP and ABC News stories make abundantly clear, it was on the basis of his findings that the president ordered the program to go forward. Thus, in the opinion of those directly involved in the process, his arguments were instrumental to the program itself. Yoo wasn't just providing one of many opinions. He was providing the opinion on which everything was based.

What is at issue here are not simply John Yoo's ideas. Tenure and academic freedom are designed to protect ideas but that is not what this is about. This is about John Yoo's actions as a lawyer. As a lawyer working within the Dept. of Justice, his duty was to defend the laws and constitution of the United States. As a lawyer working within the Office of Legal Council, the President of the United States was often his client, but the law should have been his master. Although he clearly did not understand this, his obligation was not to craft arguments that would make the president happy, but instead to provide guidance to the president about what the law and the constitution would allow.

In my opinion, the normal arguments about tenure and academic freedom simply do not apply here, because what Yoo was doing was not in any way academic. As Dean Edley indicates above, tenure is designed to allow faculty members the complete freedom to examine ideas and follow truths wherever they might lead. And I absolutely agree, that freedom must be protected. But John Yoo wasn't merely pursuing ideas. He wasn't simply following truths wherever they might lead. His memos weren't controversial papers in an obscure academic journal or law review, nor were they inflammatory articles in a newspaper or magazine. They were legal opinions used by the president to authorize the torture of other human beings. Nothing could possibly be further from the world of academia than that.

Moreover, Dean Edley's claims that because Yoo was only providing opinions and analysis, and not actually making decisions, his conduct is not "morally equivalent to that of his nominal clients." But this sets the bar for misconduct so high that virtually no one will ever clear it. Yoo is quite obviously a very smart man. He graduated summa cum laude from Harvard University, attended Yale Law School, and clerked for Supreme Court Justice Clarence Thomas. As a lawyer working within the Office of Legal Council, he knew that the opinions he was providing weren't merely an academic exercise designed to explore the ramifications of hypothetical behaviors. He knew who was asking for his opinion, and as a smart man he certainly knew why. So when he was asked to urgently provide the president with a legal opinion on the president's authority to order the torture of another human being, he absolutely must have known where that would lead.

Knowing that his legal rational was likely to be used in the construction of a torture regime, Yoo provided it anyway. And he didn't provide it in a careful, heavily qualified way. He told the president in no uncertain terms that when it came to torture, there was absolutely nothing that could stand in his way.

Go back and read the memos. Yoo wasn't simply arguing that this was an issue on which the laws were not clear. Not at all. He was arguing that despite laws that explicitly outlawed this sort of behavior, so long as the president claimed it was in the interest of national security during a time of war, the president could not be stopped:

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

Yoo is not stupid. He knew what he was doing, and he knew where this would lead.

Here's another example, this time taken from a debate in 2005:

Cassel: If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him? Yoo: No treaty. Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo. Yoo: I think it depends on why the President thinks he needs to do that.

In this setting, a debate at Notre Dame University in 2005, Yoo was clearly participating in an academic exercise and discussing a hypothetical situation. It was precisely this sort of situation that tenure was designed to protect. But Yo, in his capacity as an Asst. Attorney General in the OLC, he provided precisely the same opinion to the President of the United States. Did he honestly think that the president was merely curious about this? That was an innocent hypothetical and nothing more?

John Yoo wrote the legal rationale that became the basis for state sanctioned torture. Having successfully completed that task, he has returned to UC Berkeley to teach students about the law, its place in society, and the role of the lawyer in constitutional structure. Is he teaching future lawyers to act as he has acted? To put the needs of their client above the demands of the law? To do whatever is necessary to make sure that their client gets their way? And is that what Berkeley wants its faculty to teach? Are there no limits, no legal methods which are out of bounds? Is ethics no part of the curriculum they teach?

What if, for example, he had been responsible for providing this guidance? Although I can't be certain, I would imagine that the author of that memo neither made the decision to order its creation not carried out its instructions. In a large bureaucracy those tasks were certainly left for others to complete. Does that mean the author is blameless? That because they simply provided opinions rather than made decisions that they should not share in the blame? Dean Edley's reasoning would suggest that the author writings would be protected, and yet I'm sure that if it were this memo and not Yoo's he would say nothing of the sort. But how precisely do they differ, and how bright is the line separating these two works?

In the, despite all the words written here, I think it actually is quite simple. Dean Edley asks: Was there clear professional misconduct--that is, some breach of the professional ethics applicable to a government attorney--material to Professor Yoo's academic position? To which I would answer: if drafting the legal rationale atop which a regime of state sanctioned torture was built is not a breach of the professional ethics applicable to a government attorney, what is?

Fire him. Not tomorrow, but now.

UPDATE: A short addition from Marty Lederman that provides some perspective on just how aberrant Yoo's behavior truly war:

It remains the case that the president is constitutionally obligated to take care to faithfully execute treaties, i.e., not to intentionally breach them. And it is therefore noteworthy, I think, that until John Yoo entered the government, the executive branch had never (to my knowledge, anyway) expressed the view that it was at liberty to disregard treaty obligations. The government has never claimed the right to torture--not in the Civil War, not in Vietnam; not even in the (post-Yoo) Bush Administration....

The question, however, is whether it's acceptable constitutional behavior, and, in particular, whether OLC should construct arguments in its favor. And, I suppose, whether leading academics should encourage it.

Please remember, this wasn't an academic exercise to determine if a president could hypothetically do such things. The actual President of the United States was actually asking for an opinion about whether or not he could actually do such things. Why on earth are the protections of tenure supposed to cover that?

Also, it occurs to me that I may have misstated Yoo's obligations above. I wrote that POTUS was his client, but I'm not entirely sure that is the case. Lawyers in the DOJ are paid by the people of the United States to work on their behalf, so a good case could be made that he was our lawyer, not the president's, and that as such he should have been working on our behalf. No doubt Yoo would disagree, but that only underscores the nature of the problem.

Berkeley, John Yoo, Part II

Following up on my post from late last night, take a look at what Scott Horton has to say over at Balkanization. Scott has done tremendous reporting on the establishment of a torture regime here in the US, so I want to highlight one part in particular:

Edley assumes that Yoo was approached, as he has stated repeatedly, and asked to advise as to the full legal range of authority of the president with respect to intelligence interrogations.

That description can't be squared with the facts. A broad array of highly coercive techniques had already been implemented in rules of engagement issued to special operations teams long before Yoo was approached. Yoo was fully aware of this fact. He was commissioned to craft memoranda, twice, for purposes of a "cramdown." Lawyers and senior figures within both the CIA and DOD had objected to the new techniques very pointedly, noting that they violated criminal statutes and that both policy makers and personnel using them could be subject to prosecution.

In response to this "legal uprising," David Addington and Alberto Gonzales decided to task John Yoo to prepare memoranda. These memoranda were commissioned with two purposes in mind. First, to protect the policymakers who had authorized torture techniques from future criminal liability (something which Gonzales had identified as early as January 2002 as a serious prospect). And second, to wield the Attorney General's opinion powers to silence lawyers who had correctly evaluated the legal framework.

Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General's opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

I base my conclusions about the facts behind the Yoo memoranda largely on my own investigation including not only the public record, but interviews with a number of figures who dealt with Yoo in the course of delivery of his torture opinions. Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution. Indeed, the March 2003 memorandum reflects that he had consulted and secured non-prosecution assurances from the Criminal Division headed by Michael Chertoff. This reassurances did not have their intended affect, however. A good part of his audience believed, correctly, that his attitudes and conduct actually undermined the validity of the opinion and would render it useless in the face of future prosecutions.

... So the facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

And his conclusion:

A final aspect of Dean Edley's memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis? Does he believe that they are free to follow their careers like legal pipefitters, dispensing the advice that their clients want to hear--and if it goes astray, well then, the problem is all the client's? Does he want a generation of Berkeley grads to think that writing up CYA memos for political friends is an honorable and proper thing--or at least something you can get away with, suffering no negative repercussions? This is exactly what some of the more unfortunate and ill-considered language in his memo suggests.

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer's first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning -- He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. His decisions are not wrong. But the words he chose to express them do little credit to the students and faculty at Boalt Hall.

1 comment:

Tom Usher said...

Hi Virginia,

Excellent post! I'll be blogging it hopefully sometime later today.

God bless.

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Tom Usher