Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley Scott Horton writes: Yoo Returns to Berkeley—By Scott Horton (Harper's Magazine) : Today, John Yoo returns to teach at Boalt Hall, the prestigious law school of the University of California at Berkeley. Alumni and students are marking the occasion with a protest. Their circular states: As a direct result of Yoo’s legal memos thousands have been subjected to torture, tens of thousands incarcerated, tens of millions spied upon, and a million plus have died in U.S. imperialist wars. Without the provision of “legal cover,” many of these crimes would not have been possible... But Boalt Hall Dean Chris Edley has risen once again to Yoo’s defense. In an email message to faculty sent on Saturday morning, Edley states that he intends to address the protesters and explain why he opposes any sort of action against Yoo: I believe the University should not take any steps along the lines demanded by the protesters, because no law enforcement or even bar proceedings have been initiated, much less completed. Furthermore, UC faculty and administrators are not competent to act on their own to discover the facts at issue or make informed, formal judgments about the ultimate policy and legal claims... It seems to me that Chris Edley has made two big mistakes: I was unaware that there was any dispute about the facts; indeed, I believe that there is no such dispute. If Dean Edley believes that there is reasonable doubt about what John Yoo's actions were, he owes his school a statement detailing what his reasonable doubts are. He provides none. If U.C. Berkeley deans and professors are not competent to judge policy and legal claims, then what business do they have pretending to teach people about the law? In judging his own faculty to be not competent, he raises the question of why he remains dean of a school where he judges that the faculty are not competent or able to make informed judgments. Dean Edley would, I think, have been much better advised to present a neutral recitation of the facts of the case--facts that are not in dispute. But as Horton points out, Edley does not do that: http://delong.typepad.com/sdj/2009/08/todays-must-read-scott-horton-on-the-misdeeds-of-john-yoo--and-of-chris-edley.html
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
are not in dispute. But as Horton points out, Edley does not do that: Dean Edley’s remarks--brief as they are--reflect a refusal to grapple with some serious issues. Edley states that “no law enforcement or even bar proceedings have been initiated,” which is flatly false. In fact, Yoo is the subject of a pending criminal investigation in Spain’s Audiencia Nacional, where investigators are probing his role in a process that led to the torture of five Spanish subjects. In a preliminary ruling, the court found that culpability for these crimes lies principally with the “intellectual authors” of the torture program, and particularly the lawyers who gave permission for it.... Attorney General Eric Holder is now widely expected to appoint a special prosecutor to investigate torture.... The Pennsylvania Bar has received complaints about Yoo, but bar disciplinary measures involving Justice Department employees start in the Justice Department... a report of the Department’s Office of Professional Responsibility... five years in the making... has been finished since last October and has been held up largely by Yoo’s maneuvers.... And Horton concludes that grave questions about just what Berkeley is teaching its young lawyers-to-be are raised by Yoo's presence in the classroom: Assume... that there is a process to run.... The university has to address what to do with John Yoo in the interim.... [I]s [it] appropriate for Yoo to be teaching international law, international humanitarian law, and constitutional law[?] Even John Yoo’s colleagues in the Bush Administration considered his scholarship to be unacceptable; his torture memoranda were repudiated by Jack Goldsmith and Stephen G. Bradbury, before the Obama Administration came to office. If the Justice Department formed the conclusion that Yoo’s work on constitutional and international law issues was shockingly substandard--indeed incompetent--why should he be teaching those exact subjects at Boalt Hall?... Protecting the integrity of the academy requires the recognition of more interests than John Yoo’s. The rights of students and the reputation of the university should count for something, too. I agree with Scott: a professional school has an obligation to have its faculty be members of the profession whose deeds and ethics are worthy of emulation. Yoo's memos while he worked at the Office of Legal Counsel failed to provide his clients with a complete and truthful statement of the law. His clients could so and would win if they alleged that Yoo's flatly ignoring controlling precedent had led them, in reliance on his legal advice, to commit crimes caused substantial and difficult to repair harm to the national security of the United States. Of course, his clients didn't bring a complaint against Yoo for violations of his duties as a lawyer: the point of the exercise was for Yoo to give them a "get out of jail free card" so that they could undertake illegal actions under some legal cover. Students learning to be lawyers need to be taught that such behavior is not an acceptable part of lawyering. And each day Dean Edley allows Yoo to teach he breaks his contract with the law students who are paying him his salary. RECOMMENDED (5.0) by 8 people like you [How? ] You might like:
Protesters call for firing of UC Berkeley law professor who wrote interrogation memos for Bush(Chicago Tribune) Matt Zeitlin Needs to Learn to Stop Respecting Social Conservatives(this site) 2 more recommended posts » Brad DeLong on August 17, 2009 at 09:55 PM in Berkeley: the University, Moral Responsibility, Politics: Bushisms, Strategy: Grand Strategy | Permalink TrackBack TrackBack URL for this entry: http://www.typepad.com/services/trackback/6a00e551f0800388340120a500210f970b Listed below are links to weblogs that reference Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley:
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
Comments You can follow this conversation by subscribing to the comment feed for this post. Thanks, but typo alert - "His clients could so and would win did they allege?" Posted by: albrt | August 17, 2009 at 10:14 PM Is this the promised Excellence for which we alumni are constantly asked to donate money and for which Edley's charging students elite-private-school tuition and fees? Maybe John Yoo helps raise a lot of right-wing money for the law school. Even so, maybe Edley could just put him on paid leave. Having him teach just doesn't seem right –- students might graduate without having ever heard of the Youngstown case and the limits it places on the monarch's power. Posted by: Fiat Bux | August 17, 2009 at 11:05 PM Legal ethics are different than ethics in other professions. The legal system is an adverserial system where they attorney owes a duty of loyalty to his client. The fact that a defense attorney knows that his client is guilty of the crime charged doesn't excuse in any way his obligation to provide a vigorous defense for his client. Public defenders rarely defend innocent clients. Yet these defendants are still guaranteed a right to counsel usually paid for by the general public. The findings of fact by a jury can never be appealed. To do so violates double jeopardy. As far as the appeals process is concerned there is never a dispute as to the findings of fact once a jury has rendered a verdict. But issues of which law is applicable and how its applied are the basis of appeals. The fact that appellate courts regularly reverse the decisions of lower courts often in split decisions demonstrates that there is a great deal of difficulty in deciding what is the controlling law in a given situation and how it is to be applied to a given fact pattern. Law schools exist to teach advocates how to research the current law but also how to challenge accepted current legal precedents and argue for novel legal theories. There is a tradition at law schools of allowing law professors to advocate in favor of positions that are currently outside the mainstream of current legal thinking and taking positions that aren't currently supported by the then current law. The law isn't static, but evolving. A lot of the current legal strategy to establish gay rights in this country came from law school professors advocating and writing papers in law journals that at the time they were written were advocating positions that weren't backed by current law and would violate then current legal precedents. The civil rights movement is a consequence of lawyers challenging existing law by creating novel legal theories. For Boalt to silence John Yoo because he is an advocate of an unpopular and even an extreme conservative minority viewpoint creates a bad precedent when it comes to academic freedom. The university is one of those places that exists to support people with unconventional and even subversive viewpoints. If Yoo is ever convicted of anything, then and only then should Boalt consider removing him. Even then, they need to wrestle with the consequences of doing so. If the first amendment or academic freedom mean anything then they both exist to protect extreme minority viewpoints. How many civil rights activists and lawyers have been thrown in jail for taking positions that violated then established law(Gandhi). Once you remove Woo from office what type of precedent have you created the next time you have a Govenor who wants to fire the next Angela Davis? I think the students at Boalt probably should be exposed to someone like Yoo for the same reasons that I think students should be exposed to Angela Davis. People who challenge your pre-existing world viewpoint generally make you think a lot more than the people who affirm it. I think removing him would harm the university a lot more than keeping him. A university that is committed to keeping viewpoints as divergent as Angela Davis and John Yoo is a university that is seriously committed to academic freedom. Posted by: M Stevens | August 18, 2009 at 03:24 AM http://delong.typepad.com/sdj/2009/08/todays-must-read-scott-horton-on-the-misdeeds-of-john-yoo--and-of-chris-edley.html
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
Gay rights, Angela Davis, Gandhi--all people trying to change the system from the outside--all without the power to enact their constitutent desires. All with an expansionist view of rights, oddly enough in conformance with the human rights views of the day. Yoo, at the center of the web--working to subvert the existing constitutional processes to suit the goals of the secretive and repressively retrograde administration that is contemptuous of the rule of law. Oddly enough, Yoo's justifications and the administrations action were not in conformance with accepted human rights practices of the day. There seems to be a difference there. Is the world worse off for Gandhi's actions? What about Mr. Yoo--what coverage did he find for a future Cheney/Bush administration? But I can see Yoo as being a draw for those who wish to address the failure of the Bush administration to maintain the permanent Republican rule that was apparently promised to their followers. Posted by: Neal | August 18, 2009 at 06:12 AM "If U.C. Berkeley deans and professors are not competent to judge policy and legal claims, then what business do they have pretending to teach people about the law?" Indeed. What business do they have grading student work? Posted by: Bernard Yomtov | August 18, 2009 at 07:40 AM M Stevens has missed the point entirely. If Yoo had made his arguments in a law review article or in editorials, few would be calling for disciplinary action. Yoo, however, was not acting as a faculty member when he was at OLC. He was acting as a lawyer. The principles of academic freedom don't apply in that setting, the principles of legal ethics do. Yoo violated those principles (and the law as well, I suspect). There simply is no reason at all to extend the shield of academic freedom to cover the behavior of a practicing lawyer. Posted by: Mark Field | August 18, 2009 at 07:49 AM Just so, Mark Field. M Stevens – more importantly, John Yoo did not merely express an unpopular legal theory. Instead, he selectively ignored a key element of the law in writing a legal opinion whose purpose appears to have been to provide the pretense of legal cover under which his clients could commit war crimes. It's arguable that his communications with the White House about these issues are not even attorney-client privileged, under the crime/fraud exception to the privilege. I'm speaking, of course, of his omission of the Youngstown case. He wasn't challenging precedent and arguing for novel legal theories, at least not while he worked for OLC. Only when he was put on the hot seat by leftie bloggers did he even address Youngstown. Even then, he still didn't "challenge precedent," "argue in favor of a novel legal theory" or "advocate" an unpopular viewpoint. He came up with a cockamamie story in an Op-Ed about how Youngstown wasn't relevant at all and then – and this is important because everyone else in the world thinks and teaches that Youngstown is relevant – didn't advance any serious argument to support his claim. As John Yoo's former boss once said, the important question is "Is our children learning?" So, what do you think? Is our children gonna learn about Youngstown from John Yoo? Posted by: Fiat Bux | August 18, 2009 at 11:14 AM Neal The expansion of the rights of one group involves tradeoffs that shrink the rights of others. As you expand the rights of mothers to make decisions over her body, you also necessarily curtail the rights of the fetus as well as the father. So when you argue that one group is making an expansionist viewpoint of rights, also remember that it is also constricting the rights for another group. The genius of the Bush administration wasn't that it was contemptous of the rule of the law, but rather that it was able to make the rule of the law conform to its policy goals. The biggest problem is that Korematsu v. United States is still good law in this country. In that decision the Supreme Ct held that in a time of war, when the President is exercercizng his commander and chief powers, the President's decisions in executing that war are essentially beyond review. If the rights of a minority group are infringed in executing that war, well that is too bad. The need of the country to win the war is more important and the Supreme Ct isn't willing to jeapordize the war effort to protect the rights of a http://delong.typepad.com/sdj/2009/08/todays-must-read-scott-horton-on-the-misdeeds-of-john-yoo--and-of-chris-edley.html
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
country to win the war is more important and the Supreme Ct isn't willing to jeapordize the war effort to protect the rights of a minority group. What Yoo did was argue that the War on Terror is a war and that the broad powers handed to the executive office in a time of war should be extended to the President in this situation. Secondly he argued that since Al Queda was not a signatory to the Geneva conventions that the Geneva Convention does not apply to this group of prisoners. Third he took positions establishing a low bar for torture for persons not covered by the geneva convention. While I find Yoo's arguments morally repugnant, its backed by good law. Its also important to remember he was working in the Justice Department which is a part of the executive branch of the government. In short his client to which he owed a professional duty of loyalty was the administration. As part of his professional duty of loyalty to his client it was proper for him to take a very expansionary view of the relevant law. In much the same way that a public defender takes a very expansionary viewpoint of the rights of the person she is defending. This is exactly what Yoo did. Professionally that was the proper thing for Yoo to do. The important thing to take away from this is that Yoo actions do not violate legal ethics, rather professional legal ethics encourage Yoo to take the actions that he did. Yoo is an attorney who owes his client a duty of loyalty and its proper for him to be a zealous advocate for his client. Yoo's defenders would argue the fact that we haven't had a major terrorist attack in this country since 9/11 means that we are better off today because of the actions of Yoo. I also suspect if do have another 9/11 style attack in this country, that Yoo's world viewpoint will again be a lot more popular than they are today. So his current minority viewpoint might very well in the future still become the accepted viewpoint in this country. Posted by: M. Stevens | August 18, 2009 at 02:48 PM At a mid-life career change, I was admitted to Berkeley and Stanford Law Schools for this year. Though I am a proud alumnus of UCB's undergraduate program and I believe fervently in the mission and quality of the UC system, I decided to accept Stanford's offer. I wrote a letter to Edward Tom, the Dean of Admissions, citing Dean Edley's April 2008 letter and support for Mr. Yoo as a primary reason for that decision and offering an explanation similar to Mark Field above. Posted by: Memory | August 18, 2009 at 04:44 PM M Stevens Your defense of Yoo turns of the premise that an OLC lawyer's duty is to find a legal justification for whatever it is that the President wishes to do. That appears to be a minority view of the function of the office. Posted by: SW | August 18, 2009 at 05:10 PM To some degree, this is the flip side of the Ward Churchill problem. I'm not a legal expert on these issues but Yoo's advice may have been objectively bad. Clearly, Churchill's publishing record was bad. But Churchill argued that he was fired for his political speech and won the case. I think that was probably true. The question is: Would the university fire someone who gave inaccurate legal advice supporting a liberal cause. Perhaps making a legally frivolous argument against the death penalty? I'm very doubtful it would even be considered. I worry about a rule that says that conservatives (or whomever is in the academic minority) will be fired for bad legal advice but liberals won't. Posted by: frankcross | August 18, 2009 at 06:47 PM Yoo is a lawyer in good standing. He hasn't been indicted let alone convicted, nor has he been sanctioned by the bar. He is a prominent lawyer with experience at the top levels of government whose advice was relied on by the White House, a leader whose opinions are sought by the editorial boards of the nation's top newspapers. Berkeley's law school seeks out prominent, experienced lawyers like Yoo. Yoo has unique and valuable experience in international humanitarian law and constitutional law. In your idealized legal system, Yoo's conduct would be scandalous. You see his actions as criminal. But Berkeley can't teach fantasy law, the school has to teach the law as it is practiced. With his knowledge of the ways to structure and characterize the Bush administration's actions Yoo has shown himself to be a master of this area of the law. http://delong.typepad.com/sdj/2009/08/todays-must-read-scott-horton-on-the-misdeeds-of-john-yoo--and-of-chris-edley.html
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Today's Must Read: Scott Horton on the Misdeeds of John Yoo--and of Chris Edley
8/19/09 12:36 PM
Sure, Yoo is controversial today, but after the next administration change he'll be back in Washington at a top law firm providing advice, contacts, and lobbying. He will be a very useful contact for Berkeley trained lawyers. Posted by: Jim Lund | August 18, 2009 at 08:29 PM Jim Lund: for the Jon Swift award. frankcross: suppose a liberal OLC for a liberal president gave liberal "legal" advice to establish torture as US policy and micro manage torture from the oval office, to gain false "confessions" to "fix facts around the policy" to help an liberal administration get thousands of our troops killed, get tens of thousands of our troops crippled, brain damaged, blinded, or otherwise maimed, get hundreds of thousands of innocent Muslims killed, and guarantee lasting hatred for the US from all their surviving families and friends for lifetimes to come... might that ex-OLC have difficulty with tenure? Posted by: Janus Daniels | August 19, 2009 at 06:00 AM Sure, Janus, you can disregard me because I'm *some guy on the internet*. But do you doubt Dean Edley has heard my arguments from the senior lawyers? Do you doubt Yoo's star is rising, and that he'll find a partner position in a Washington shop? Posted by: Jim Lund | August 19, 2009 at 08:12 AM Just to follow up on Janus' point, I think Prof. Cross has phrased the issue much too favorably for John Yoo. It's not that Yoo's advice was "erroneous" -- we're all (all of us lawyers) guilty of that. The accusation against Yoo is that his advice was given either in bad faith or with the express purpose of aiding and abetting a crime (an exceptionally serious crime, at that). I can't imagine that anyone thinks a lawyer who did either could legitimately claim to have been disciplined or convicted for political reasons. And if he could be so disciplined or convicted, then it's hard to see why Berkeley should employ him. Academic freedom doesn't extend to criminal acts. M Stevens' second post deserves no response. Anyone who so completely changes his argument isn't interested in honest discussion. In any case, my response to Prof. Cross covers it. Posted by: Mark Field | August 19, 2009 at 08:29 AM
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