Opposing DOJ Lawyers as Law Professors: Competence, Not Ideology

Inside Higher Education is reporting today on its website about a controversy at the University of Minnesota over the engagement of Robert Delahunty as a visiting professor.  Delahunty is one of the lawyers at the Office of Legal Counsel who wrote the "torture memos" advising the administration on various aspects of constitutional law, domestic and international criminal law, and the law of warfare, as it pertained to the treatment and questioning of detainees.  He is now teaching at St. Thomas in Minneapolis, and would be teaching constitutional law next year at U. Minn.  Reacting to student complaints, two U. Minn. professors have claimed that it's only ideological extremists are objecting to Delahunty's appointment as a visiting professor.  (See also this article from the Minnesota student newspaper.)  In response, one student said it's an issue of legal ethics, not ideology.

I agree wholeheartedly that it would be a violation of academic ethics to reject an exciting, talented constitutional law scholar as a visitor, solely on the basis of ideology.  While there are probably some people who criticize the OLC lawyers' work on ideological grounds, the principal objection to the work of Delahunty, John Yoo, Jay Bybee, and others has always been that it was incredibly sloppy lawyering.  Or, to put it another way, it was results-driven to an extent that crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements.  A group of professors at U. Minn. has criticized Delahunty for violating his professional obligations to make a good faith effort to determine the scope of the law. 

To the extent the objection to Delahunty is based on his demonstrated lack of competence as a lawyer (or, more likely, his willingness to disregard his professional obligations at the behest of his employer), I don't see the academic freedom issue.  Schools routinely refuse to hire people on the entry-level or lateral market, or engage them as visitors, when their scholarly work is judged to be inadequate by the standards of legal scholarship.  Those standards are things like persuasiveness, thoroughness of research and discussion of sources, balanced treatment of opposing arguments, and overall reasonableness.  All of these things are lacking in the torture memos. 

At the risk of reopening an old discussion, remember the battle in the 1980's over Critical Legal Studies.  Conservatives (and even some moderates, like Paul Carrington) objected to CLS not necessarily because of its ideological orientation (although that surely played some role) but because some who aligned themselves with CLS seemed to disrespect the law as such.  Carrington's famous Of Law and the River article made the point that law is a craft, and it would be odd to hire someone to teach in a law school who has contempt for the craft.  Similarly, the torture memos reveal an instrumental attitude toward the law that is at odds with the attitudes and dispositions toward the law that we presumably seek to inculcate in our students.  (If you find words like "disposition" and "inculcate" scary, and think this is some kind of thought control at work, ask yourself what legal educators are doing when they engage in Socratic dialogue with students; isn't it an attempt to make them better at making legal arguments?  The issue is not whether legal education is about instilling attitudes -- it is about the nature of the attitude we seek to instill.) 

One objection to this whole line of criticism is that Delahunty is not an entry-level candidate, but a visiting professor with a track record as a teacher and scholar.  If the record is sufficiently probative of his competence at teaching and scholarship, then it would probably be unfairly prejudicial (in the parlance of evidence law) to reject him as a visitor on the basis of his role in the torture memos.  But the torture memos are at least probative of competence, which is relevant to the hiring decision, and (at least in principle) independent of ideology. 

Addendum, re the following comment by Kenneth Graham, at UCLA:

Law schools constantly hire people who have advocated bad policies when they were in private practice; for example, lawyers at corporate law firms who try to make it easier for corporations to harm consumers. So one should not assume that the views advanced are necessarily the lawyers. And doesn’t it make a difference whether the person is hired to teach international law—-the subject of his bad opinion—-or securities regulation?

The ground for criticizing the torture memos (at least, my ground) is not that they're bad policy in some extra-legal sense.  One could make that argument, but then Prof. Graham would be correct that a lot of competent lawyers represent clients who want to do things that are a bad idea from a policy point of view.  Rather, the objection is that a lawyer who simply acquiesces in a client's demand, where the client has no legal basis for its proposed course of action, is failing to carry out the fundamental professional obligation of providing competent, independent, candid legal advice and to refuse to assist the client in an illegal course of action.  (In legal ethics lingo, this is a Rule 1.1/Rule 2.1 issue.) 

Comments

[SolidState]

Would your point likewise hold for the three DC District Ct justices who were overturned by SCOTUS? Could I likewise bar any justice regularly in dissent on cases which were upheld by SCOTUS from the academy? Or is it the proposal here that the result in Hamdan was self-evident to someone who had performed a competant review of the law in some unique way not present in other cases of incorrect prediction of SCOTUS decision-making?

Is someone actually going to make a principled argument for what exactly demonstrates incompetance in the memo - or just a general argument that in principle it is possible to oppose professorial hires for competance rather than ideology? It seems self-evident that the opposition is ideological, at least in motivation, even if there is some alternative argument for why the same actions could be taken on the same grounds for some other motive than the one they frankly admit to in the memo (they think he is at least implicated as a possible war criminal because he helped facilitate torture).

Pretending that the opposition has something to do with competance seems disingenuous. The content of the argument as presented so far seems at best to remain purely results driven. That is, the ideologically differing result proves the incompetance of process. I think the "representing unatractive clients does not make incompetance" justification is unbeatable unless you are prepared to explain how the draft memo itself contains process-based evidence of incompetance.

Frankly, the memo you quote is a dog that won't hunt. The memo absolutely rejects your competance theory and affirms that their opposition is precisely ideological - that is, they believe he is most likely a war criminal, or a facilitator of such, or at least potentially liable as such. The U. Minn. professors are uninterested in the competance prong of the ethics violation, they are interested in the facilitating of criminal conduct.

From the U.Minn memo:
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"[The Delahunty-Yoo memo], part of the now notorious "Torture Memos," facilitated the eventual torture of detainees not only in Guantenemo, but in Abu Ghraib and elsewhere. The Delahunty-Yoo memo gave the US Administration the legal blanket to conduct such acts, which are in clear violation of international law, with virtual impunity."

They mention Amnesty Internation was concerned about the "impact" of the memo.

They mention his activities have made it more likely for the US to commit war crimes, and that he may be investigated in Europe for war crimes.

"Nor should we hire ... a lawyer implicated in what many in the international community regard as war crimes."

"Mr. Delahunty's role was not academic and we object to hiring someone of his credentials rather than to anything he may say in class should he be so hired or concerns about his scholarly research or academic work."
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As long as you are pointing at the conclusion as evidence for incompetance, it sounds remarkably like, "My ideology is so correct, that only an idiot could disagree." The authors of the memo you cite, however, aren't even making your argument. They are frankly opposed to him because they think he facilitated war crimes, or may be investigated on that basis. None of this has any bearing whatsoever on whether his legal advice on the current state of US law prior to Hamdan was competant.

[Brad]

It was precisely my point to make "a general argument that in principle it is possible to oppose professorial hires for competance rather than ideology." As for the question about the plausibility of the position in the memos regarding the applicability of Geneva to the conflict with al-Qaeda, I'd like to see that debated on the merits, rather than simply by insinuating that any opposition to Delahunty, Yoo, et al., is results driven and ideological in nature. Let's have a discussion, on this blog or elsewhere, about the best understanding of the law of warfare, the U.S. law of foreign relations, and constitutional law on separation of powers, pre-Hamdan. My own view is that the best understanding of the law of war, pre-Hamdan, includes recognition of the gapless coverage structure of the Geneva Conventions, such that common article 3 would cover the detainees in question. Maybe there's an alternative position with some non-trivial degree of plausibility, but in the memos it was not flagged as an alternative to the mainstream view; rather, it was presented as The Law. That's the bit I object to, on professional ethics grounds. But it's not an ideological objection -- if it can be demonstrated to the satisfaction of lawyers and scholars who are competent in this area that the advice in the memos represents a reasonable attempt to get the law right, then I have no grounds to complain about any school hiring Delahunty. I'm not reasoning backwards from the conclusion of the memo -- as I said in the paper I wrote about the torture memos, if the law governing torture were different, lawyers could ethically give advice that their client (the executive) could approve certain legally permissible interrogation techniques. My only point was that opponents and defenders of Delahunty should concentrate on the merits of the legal arguments in the memos. That's the very opposite of results-driven -- it's reason-driven, which is what legal analysis is all about.

[Amy Bergquist]

The way I see it, one ethical issue hinges on the context in which the memo was written. We don't know the full context, but we have some clues. If the memo was written in the context of the client considering some future action (e.g., relating to whether the War Crimes Act would restrain some action), then it seems the memo should have been predictive in nature. In that context, it seems that a lawyer should have presented a balanced description of the law and its applicability, knowing that the client may rely on that advice to justify future actions. It strikes me as odd that the memo seems to line up all the arguments to answer "yes" to the client's question of "can the US take this action," but doesn't present the relevant and presumably obvious counterarguments.

This leads me to the question: in what context would a predictive memo ethically present only the "yes" answers to a client's question?

Option 1: Another team of lawyers was simultaneously charged with drafting the "no" memo, and then the government was planning synthesize and reach a decision.

Option 2: There were only "yes" answers to give. The answer was so clear that it was unnecessary to consider counterarguments, because no court would consider them.

Option 3: The deed is already done, and the lawyers were just tasked with preparing a memo that ultimately could serve as a brief to submit to a court to justify the actions post hoc.

If you can think of other options, I'd really appreciate you sharing them. My creative juices are sapped.

Responses to these options.

Option 1: If this is the case, I have several questions and concerns:
(1) Where is that memo?
(2) Why was the State Department response's tone so alarmed and harshly critical?
(3) Why did they divide up the work? It seems rather inefficient.

We can't really answer question 1. If it is out there, at this point why not release it to provide a fuller context for the Yoo & Delahunty memo? And why hasn't it been referenced by DOS or other OLC memos?

Question 2 suggests that if there was some initial plan to divide the intellectual labor, DOS didn't know about it, and DOS was likely not the entity charged with providing the response. It would seem odd for DOJ to expect or direct DOS to play this role, other than in a post-hoc comment fashion. And if it were a plan from the outset that DOS (or another team from OLC) would provide the counterpoint, why the sharp language and sense of urgency in the DOS memo, and why the acknowledgment that they had limited time to respond and that "we should talk"?

Question 3 raises another interesting issue. Is it possible that they wanted to divide up the work so that the "yes" memo could then be distributed more broadly, so that officials could claim good faith reliance on the advice of legal counsel as a defense in any future actions? If the memo were more balanced, and included the arguments raised by DOS, it might be harder for an official to rely on the "yes" answer in good faith.

Option 2: This argument does not seem plausible, particularly because DOS was able to turn around a 40 page response memo in a couple of days, and if we presume that Yoo and Delahunty are well experienced and knowledgable practitioners at OLC, objectively they should have been aware of the counterarguments. Most 1Ls after 1st semester of ConLaw would at least think to mention Youngstown in this context. The Supreme Court ruling in Hamdan is important here, not to prove that Yoo & Delahunty were wrong, but to demonstrate that there are strong counterarguments that the memo failed to consider, if Option 2 is correct.

Option 3: This option admittedly doesn't seem to fall within the "predictive memo" context, unless the task is really "predict what our strongest arguments will be now that we've taken this action." Instead, the memo in this context would be in preparation for some sort of legal challenge to the action already taken by the government. In that context, a one-sided advocacy may be more appropriate. But why, then, the DOS's alarmed response? Presumably DOS would have been aware of what actions had already been taken, and the context of the memo, and the tone of the memo would have been less critical and probably worded differently. If not, what would be the point of circulating the memo for comments?

With respect to the comments above about judges writing opinions concluding along the same lines as the memo, that context is different. There may be nothing wrong with a judge considering both sides and then concluding (and writing) that one side is correct. Even though an opinion may be more persuasive if it thoroughly considers counterarguments, there is no ethical obligation to do so in this context (at least, that I am aware of). But in the context of an attorney advising a client, it may be ill-advised or unethical just to tell the client what she wants to hear, given a particular context (particularly in the context in which the client asks, "I want to pursue X course of action. Can I do so and avoid prosecution?").