Fire John Yoo?

In response to an on-line petition demanding that UC-Berkeley fire John Yoo from his position as a tenured professor of law, Brian Leiter posted a spirited defense of the value of tenure.  Marty Lederman followed up by posting a memo from Berkeley Dean Christopher Edley.  While I agree that there are insufficient grounds to dismiss Yoo, I think it is important to separate two strands of criticism of the Yoo memos on torture, executive power, wiretapping, and so on. 

One strand is that torture is a grave moral evil, the establishment of a "torture culture" (David Luban's term) in the United States has been a moral catastrophe, and we have ceded the moral high ground in international affairs for the foreseeable future.  Dean Edley responds to this with a version of the standard lawyer's defense -- the culpability of an advisor must be less than the culpability of the client, whether a private or a government actor.  The moral opprobrium belongs to the policy-makers -- Cheney, Rumsfeld, Feith, et al. -- not the lawyers who merely provided advice.  He also argues that reasonable people can disagree, not that torture is a serious wrong, but over the quality of Yoo's legal analysis:

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.

This leads to the second strand of criticism of Yoo's advising, which is that it represents "legal advice" only in the sense that it contains words, cites cases and statutes, and is signed by a lawyer.  Although Yoo thinks these memos represent a sound view of what the law permits, they are really nothing more than his fantasy of what the law should permit, if courts and academics hadn't screwed it up. 

How do I defend that conclusion?  (More after the jump.}

The problem is, there's no pithy way to defend that conclusion.  The only thing to do is to wade into the arguments and engage with them as we're all trained to do.  I think that with enough time and care, it is possible to demonstrate the the analysis in the Yoo memos is not only shoddy (as Leiter puts it), but so egregiously shoddy that it has to be understood as something other than legal advising -- something more like providing the basis for CIA interrogators to assert an advice of counsel defense if they are ever prosecuted.  Marty Lederman and Hilzoy have provided this kind of analysis, and there are countless law review articles making the same point. 

I do worry, however, that the first and second strands of the criticism get run together in the following way.  Defenders of Yoo will say that I'm just another liberal, latte-sipping academic who buys into the lefty human rights agenda, doesn't recognize the danger posed by "Islamofascism," wants the terrorists to win, blah blah blah.  In other words, they deny that there is a non-partisan, non-ideological standpoint from which the quality of legal advice can be assessed.  If I think Yoo provided shoddy advice, it must be because I disagree with him as a matter of policy preferences.  To some extent, that argument is weakened by the existence of conservative lawyers like Jack Goldsmith, who stood up to a great deal of pressure to defend the ideal of the rule of law.  Goldsmith is a special case, because he was a lawyer at OLC, but there is no shortage of conservative critics of the administration's attitude toward the law.  So I don't think it necessarily makes one a latte-sipper to criticize Yoo on these grounds.

Still, I have been following the debate over the OLC lawyers for some time, on blogs and in the media, and it's significant how little confidence we seem to have in the notion of a non-ideological standpoint from which to assess the quality of legal advice.  Anyone who suggests that Yoo is somehow deficient as a lawyer is automatically labeled intolerant of intellectual diversity.  But that's to conflate these two lines of criticism.  Set aside the tenure question for a minute and imagine that John Yoo was an entryy-level faculty candidate, after having served in OLC and writing the memos he wrote.  My disagreement with his positions, as a substantive, ideological matter, would not be a legitimate basis for opposing his appointment to a law faculty position.  But it would be legitimate to oppose his appointment because he has a bizarre idea of what sound legal advice looks like, or a wrongheaded idea of what lawyers should do when their clients demand that they produce legal advice that allows them to do whatever they want to do.  This goes to a core competence of law professors, and would be a viewpoint-neutral basis for opposing his appointment.  (This, by the way, was Paul Carrington's position in "Of Law and the River," and I find it interesting that some who objected vociferously to his call to kick the crits out of law schools are now up in arms about Yoo.) 

Again, this has nothing to do with whether Yoo should be fired.  He shouldn't be.  But it does suggest a response to Marty Lederman's excellent question at the end of his post: 

[W]hether there are other steps other members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality, but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing.

I would think the answer to this would be obvious:  Yoo should be a marginal figure in the legal academy.  Someone whose arguments are so deficient, in terms of the standards of legal craft, that they can hardly be called legal arguments at all, should not expect to be taken seriously.  To some extent this may be happening already.  Maybe it will just take some time to digest all of these arguments and refute them carefully.  After all, the 2003 memo was only recently disclosed. 

Dean Edley is correct that there would be a chilling effect if universities contemplated formal sanctions against law professors who make lousy arguments.  But there would be no chilling effect if other law professors didn't take lousy arguments seriously.  Again, by "lousy" I don't mean "unpopular" or "controversial," even though I know some will hear me saying that.  Or, if you think I mean to equate bad legal arguments with those that are not acceptable to latte-sipping liberals, we have a different argument -- one about whether there is any such thing as the rule of law. 

Comments

[David McGowan]

Brad--

I think the liberal/conservative frame you use understates the strength of the claim that judgments of competence are invariably partial (which is not to say partisan in a conventional political sense.).

If you define competence by reference to some community of understanding, as I understand you to do, and if there are several, heterogeneous communities, then a judgment of competence will require the choice of a relevant community. That choice cannot be based on the tenets of any one community. In that sense, it is and must be partial, and thus not "neutral." That is not a Democrat/Republican point, but it does, I think, entail the rejection of a conception of "professionalism" that is disinterested in any strong (and thus interesting sense).

Two examples. I understand you to reject the originalism of the Yoo/Delahunty memo on the ground that the international legal community has rejected originalism. Fair enough: To a member of that community, the memo was incompetent. But an originalist might find it well-done work. (Even non-originalists, such as me and Luban, find it competent.) I see no neutral basis for choosing the internationalist perspective over the originalist, and I don't recall seeing you claim that there is one.

Whether one drags lattes into the debate seems a matter of taste, but there is an obvious partisan divide with regard to the degree to which domestic law should be affected by international norms. To criticize or defend in this context one essentially has to choose a side (even on a provisional basis—choosing one for the sake of analysis), and I don’t see a basis for complaint when one is criticized for having done so. The critics will have done so, too.

The upshot may be that analysis is competent for a domestic community in which originalism has enough supporters to forestall any action premised on incompetence, while in Europe the analysis is treated as an inculpatory sham, but that would seem to be nothing more than a logical extension of the premise that competence derives from community norms.

A second, more disturbing, example. There is a school of thought favoring "whole code" interpretation, which refers to the technique of interpreting a word in one statute as it is interpreted in some other statute, even on a completely unrelated topic.

The premise of that school, to the extent I understand it, is that Congress is a unitary entity that at least presumptively uses words the same way every time. (See, for example, Justice Scalia’s survey of 34 statutes in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 93, 87-92(1991); Adrian Vermeule, Three Strategies of Interpretation, 42 San Diego L. Rev. 607 (2005)(noting but not endorsing technique). The broader stance, I take it, is to develop what Vermeule calls a “holistic or coherent textualism, as opposed to the sort of clause-bound textualism that focuses principally or solely on the statutory or constitutional provisions directly applicable in the case at hand.”

I think that is a loopy idea. It makes sense to borrow meanings from related statutes--if the context is the same and the purposes are similar, the words were probably intended to mean similar things. But the notion that Congress uses language in some systematic way across unrelated statutes is loopy, and the idea of wholistic textualism, unconnected to context and intention, is loopier.

I therefore buy all the arguments that "severe" as used to admit people to hospitals has nothing to do with "severe" as used to define torture. Note, though, that the argument that the two statutes are completely unrelated does not meet the premise of the "whole code" move. That premise is about Congress as an entity, and textualism as an enterprise, not about the similarity of statutes, which is a contextual point.

To reject the whole code move is to take a position in debates about (i) textualism; (ii) what Congress is or (iii) how it should be treated regardless of what it might actually be; and (iv) (the flip side of (i)) the degree of discretion and judgment judges should use in whatever one decides counts as (v) interpretation.

These debates have partisan overlaps, though not as pronounced as the domestic/international divide mentioned above. I reject the "severe" analysis because I reject holistic textualism, which does put me in a particular place on debates about interpretation that is identifiably different from the place occupied by some of my more conservative friends. I would not wish to deny that.

But so what? Why do you need to feel as though your competence critique is disinterested? All this is true of any claim that these memos were competent, so the charge washes out analytically. Why not just give the reasons why you think your community norms are best and should trump, either in general or in a given case. In other words, stop worrying about whether they are in some abstract sense competent and just argue about why it would be good or bad to treat them otherwise?

My guess (correct me if I am wrong) because the argument then collapses into the morass of ordinary ethical debate, in which neither progress nor consensus should be expected. True enough. But I think it is a mistake to think competence offers sold ground free from that morass. It instead reflects, or does not, an area of overlap among competing moral positions. You may be in or out of the overlap set (and here I think it safe to say we are out), but it is wrong to think the overlap is independent ground. It is just overlap, and thus no more stable than the underlying positions which comprise it.

DM

[Jay Rosen]

"The moral opprobrium belongs to the policy-makers -- Cheney, Rumsfeld, Feith, et al. -- not the lawyers who merely provided advice."

In that case, perhaps a better question is whether Doug Feith should have been given a faculty job at Georgetown. I once wrote the Dean of the Walsh School of Foreign Service to express my amazement at that. No reply.

I think you are under-playing the "latte" part somewhat. It would be wiser to see the "just another liberal, latte-sipping academic who buys into the lefty human rights agenda" dynamic as part of the Torture Memo itself, an implicit section of it.

Cheers...

[Patrick S. O'Donnell]

As an outsider looking in, I'm enjoying this thoughtful discussion. FWIW, I agree that formal academic sanctions against Yoo are unwarranted (and would probably backfire in some manner down the road) and thus the "marginalization" of Yoo by fellow legal academics is an appropriate response as a shaming mechanism that serves to enforce professional and ethical norms while reiterating the minimal conditions for a constitutionally sound legal argument qua legal argument.

I think Marty Lederman is right to argue that the lack of consensus in the legal academy on Yoo's legal competency (in this context at least) "demonstrates that there are, indeed, some very smart people out there who have no sense of moral and professional outrage and incredulity about what happened here--who apparently think of this as 'business as usual,' what we should or must expect from our government in times of crisis; that it makes no sense at all to critique the work of government lawyers." Analogous if not similar "breeches in our constitutional culture" have occurred throughout our history as Marty noted in one of his Balkinization posts: "In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization." I think an intimate familiarity with this history helps in placing the Torture Memos in perspective.

At the risk of sounding pedantic or patronizing (and I'm in no position to be either): A formal legal argument may of course be egregiously unprincipled and unethical, apart from its constitutional implausibility, but the legal profession might also seek to demonstrate (and to some degree already has) whether or not Yoo evidenced basic competency in the "grammar of legal argument" as such which, after Dennis Patterson (and Philip Bobbitt; please see Dennis's paper, 'Interpretation in Law,' http://ssrn.com/abstract=702921), consists of the following forms: textual, doctrinal, historical, prudential, structural, and ethical. In Patterson's words, "the forms of argument are the (immanent) grammar of legal justification. Understanding in law is law best explained as disposition on the part of individuals to employ *the forms of argument in appropriate ways as context requires."* Dennis provides us with the minimal desiderata for assessing legal competence, namely, a demonstrated familiarity with the forms (the grammar) of legal argument, empoyed "in appropriate ways as context requires."

Legal interpretation is therefore a second order or parasitic practice dependent on prior understanding evidenced in the ability to employ the standard forms of legal argument. It seems the Torture Memos present us with a case in which this understanding has in some measure broken down or, better, forms of legal argument are in conflict, such cases exempliflying the need for "legal interpretation." Patterson argues that we need not leap to adjudication by "legal theories" in such cases but can rely on such normative principles of interpretive criteria as "minimal mutilation," "coherence," and "generality." In short, here is where I think those who find fatal fault with Yoo's legal argument should focus their attention. In other words, rather than conducting an analysis and critique at the rather abstract, philosophical and radically pluralist level of legal theory, Yoo's legal argument should be assessed according to these fundamental criteria, keeping in mind the importance of "context" noted above.

I'm confident (perhaps mistakenly) that Yoo's legal argument does not meet these minimal criteria as part of a greater inability to demonstrate sufficient familiarity with the proper forms of legal argument that one should have relied upon in this case. In other words, there is only one "community of [legal] understanding" (i.e., those well-versed in the grammar of legal argument) and the assessement of legal competence can find some independent or objective ground by resorting to the three aforementioned interpretive criteria suggested by Patterson. Put differently, empirically speaking, judgments of competence may often in fact be partial or even partisan, but they *need* (and should) not be. Indeed, I think the academic integrity of the legal profession rests on the assumption that we can make more or less objective determinations of legal competence.

[Patrick S. O'Donnell]

Erratum: assessment

In support of the argument for the possibility of objectively assessing legal competence I might note (by way of Balkinization) this post by Stephen Gillers in The Nation: http://www.thenation.com/doc/20080428/gillers

[Dwight Van Winkle]

Mr. O'Donnell, thank you for your discussion of legal argument. Ben Davis shows how Yoo took statutes using the term "severe pain," and by sleight of hand, reached this conclusion:

" Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function."

http://jurist.law.pitt.edu/forumy/2008/04/yoo-torture-memo-break-silence-of-lambs.php

This does not meet the minimal standards of legal argument because the statute does not state what he says it does. He made it up.

[Doug Richmond]

I fail to see how John Yoo's dismissal would imperil tenure or represent some intrusion into academic freedom. He wrote the offending memo as a government employee, not as part of any academic or university exercise. I am not advocating his dismissal, mind you, I just think that his continued employment at Berkeley should be justified, if at all, on other grounds.

[Patrick S. O'Donnell]

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)

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 http://www.thenation.com/doc/20040712/shapiro

[cross-posted at Concurring Opinions and MoneyLaw]

[ruralcounsel]

"One strand is that torture is a grave moral evil, the establishment of a "torture culture" (David Luban's term) in the United States has been a moral catastrophe, and we have ceded the moral high ground in international affairs for the foreseeable future."

I suspect that a close inspection of the history of war and conquest in North America over the past 400 years would suggest that some of these critics have an overly self-congratulatory view of our own history.

This is the overtaking of reality with appearance; a PR scheme worthy of marketing geniuses ... posturing as a holier-than-thou government placed at peril by a pro-torture minority.

Let any terrorist group perform another significant act inside US borders, and you'll see a popular groundswell in support of any kind of torture imaginable.

We are a culture of "whatever works and is convenient".

[mike5]

This is totally telling about North America.It is regarding War at North America.

==========================

mike5

widecircles

[Steven Rosen]

From where I sit, it's unbelievable that we are still debating whether or not John Yoo should stay. If Dr. Mengele of Auschwitz or another Nazi war criminal were discoved teaching law there, I think he'd be let go, with or without tenure. I don't see a real distinction between Yoo and a Nazi war criminal. This is not really hyperbole, is it?

Best,
Dr. Steven L. Rosen
Associate Professor
Prefectural University of Hiroshima

[online pharmacy]

Yoo, a member of the Pennsylvania State Bar, was a law clerk for Appeals Court judge Laurence H. Silberman and for Supreme Court Justice Clarence Thomas

[online pharmacy]

Yoo's legal opinions were controversial within the Bush Administration. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions

[bgv]

Although Yoo thinks these memos represent a sound view of what the law permits, they are really nothing more than his fantasy of what the law should permit, if courts and academics hadn't screwed it up.