Professor Bainbridge...on law, politics, religion, culture & food

Thanks Prof. From what I have read it sounds as though Yoo was asked to construct a legal argument to justify a position. I agree he shouldnt be “tortured” for this (forgive me).
It appears as though his legal argument is used to justify following acts by the government. Mukasey claims people acting under this argument are protected. If so, a poorly written legal opinion appears to protect virtually any behavior. Can this be true? A flaw in the system?

Steve

Your premise is wrong.
Yoo is not being criticized for some scholarly exercise or argument he enaged in as a professor. That might chill academic freedom. although I don’t see how being an academic shields you from criticism in any case.
He was a government official engaged in facilitating illegal (and reprehensible) government conduct when he wrote the memo. Surely if Yoo robbed a bank or engaged in financial frauds he’d be considered morally unsuitable to be a law professor.
This is far worse.
The damage he has done to our country is incalcuable, although there’s little doubt it will be long-lasting. No doubt there will be captured American servicemen in some future conflict subjected to treatment our enemies will carefully note was once sanctioned by our own government. Maybe they’ll even call it “Yoo-style” interogation, if they don’t name it “Bushing.”

Seth: I think you’re missing my point. The left wants UC Berkeley to fire John Yoo from his job as a law professor because the left doesn;t like the legal positions Yoo took when Yoo worked in government. I think trying an academic in the court of public opinion for something he did while in government is just as much a matter of academic freedom as trying an academic in the court of public opinion for something he did in his professorial capacity. It will inevitably have a chilling effect.

Plus, of course, I think that most of the lefties out for Yoo’s hide would invoke a double standard to justify firing Yoo but not firing somebody like Dohm or to hire somebody like Stewart. In fact, after two decades in the academy, I’m certain there’s a double standard at work here.

/* He was a government official engaged in facilitating illegal (and reprehensible) government conduct when he wrote the memo.
*/

In other words, any time a lawyer gives advice that turns out to be wrong, that lawyer should be tried as an accomplice to any acts somebody takes based on it?

/* I don’t see how being an academic shields you from criticism in any case.
*/

It’s perfectly acceptable to criticize Yoo.  Under the standards of academic freedom, however, it’s not acceptable to punish him for thought crimes.  On the other hand, if we’re going to weaken tenure, can we go ahead and get rid of it from all pre-University public schools (i.e., pre-K through 12 grade)?  I really don’t see why the average 4th grade teacher needs academic freedom.

What if Yoo was to be convicted of war crimes (likely in absentia)for his efforts to authorize and promote torture in a respected venue such as the ICC in the Hague, would that be enough to justify his head on the wall? I think for you to state categorically that “John Yoo broke no laws” may be premature. There is much that is still classified and every layer of this onion that gets pealed back is uglier. When SS-Unterscharführer Herman Lambert designed a more efficient crematorium for the Nazi regime was he just a good academic engineer? I mean he never broke the law or hurt anyone. Oh wait, at Nurenberg....

To say it is only the “left” that subscribes to the belief that our standing of being a moral nation means that we do not condone such unconstitutional aberrations and horrors that John Yoo prescribed is insulting to the vast millions of americans who are not members of the “left”.  What Professor Yoo did was unpardonable if for no other reason than it was a blatant attempt to usurp the constitutional protections for ALL americans against the unchecked power of one branch of the government, in this case the executive.  Did we learn nothing from the excesses of the Nixon years?  Or, Mr Bainbridge, is this just another example of those who believe that “if the president does it, it isn’t against the law”?  If the 65 percent and up of the americans who find this administration and it’s actions deplorable are all members of the left, then there must be a lot of leftists out there.  Enough said?

The torture memos were not all Yoo was engaged in to subvert the Constitution.  He specifically declared 9/11 as an act of war, thus freeing the event from criminal investigation.  This is obstruction of justice.  He then violated the very rules of war by violating the Geneva Conventions Article 3 that specifically protects ANYONE from abusive treatment, i.e. Torture.  John C. Yoo needs to face criminal charges as well as charges of Treason and War Crimes!

Prof. Bainbridge, the Bush administration is full of lawyers who’ve advanced legal positions “the Left doesn’t like.” No one is howling for their collective heads.

This shouldn’t even be a left/right issue—no one should support or tolerate torture, or the lawyers who help make torture happen.

I’m sorry, tho not surprised, to see Prof. Kerr’s terribly ill-advised remark quoted.  I believe that was tossed off in the context of teasing Jack Balkin about his theories of constitutionalism ("living originalism” or something like that ... as a practicing lawyer, I find these debates a bit rarefied).

Yoo’s memo was “lawyerly” only in the sense that a non-lawyer could look at it and think it looked like a valid legal memo.  In fact, the memo omitted to even acknowledge important contrary authority (Youngstown); got other authority exactly backward (Quirin); and in general was, as noted above, a transparent effort to justify blatantly illegal conduct on the orders of higher-ups (apparently Rumsfeld, Addington, and Cheney).

Keeping John Yoo on Berkeley’s law faculty is *exactly* like a German law school’s retaining an attorney who drafted memos justifying the nacht-und-nebel decrees.  In fact, such people were put on trial at Nuremberg.

Given that the U.S. courts, in their misplaced deference to the Executive Cult, will likely never bring Yoo to trial, Berkeley should not wait for them.  It should conduct its own hearing, allowing Yoo to call whatever witnesses he likes, into whether the memo was a legitmate legal effort and into whether Yoo is in fact a war criminal.

If believing in accountability makes me a “leftie,” then I guess I am.
It used to be conservative to believe in limited government, honor and the rule of law.
Yoo openly advocates unlimited Executive powers in wartime that mock the Constitution he’s supposed to be upholding.
There’s no question that torture is one of the most dishonorable things a government can do.
And the rule of law can’t survive the kinds of legal “argument” Yoo engaged in.
I really don’t see how bringing pressure on Berkely to let Yoo go because he’s a war criminal is chills academic freedom. Or how defending academic freedom, for that matter, is a higher good than discouraging and ostracizing war criminals.
Yoo is an affront to American honor.

/* To say it is only the “left” that subscribes to the belief that our standing of being a moral nation means that we do not condone such unconstitutional aberrations and horrors that John Yoo prescribed is insulting to the vast millions of americans who are not members of the “left”. ... If the 65 percent and up of the americans who find this administration and it’s actions deplorable are all members of the left, then there must be a lot of leftists out there.  Enough said?
*/

And similar sentiments.

The “65% of Americans who find this Administration and its actions deplorable” include the good Professor.  However, they are not all trying to get Yoo fired from his job because he acted like a lawyer while employed as one of the President’s lawyers.  The group trying to get Yoo pushed out is much smaller than that.

/* What Professor Yoo did was unpardonable if for no other reason than it was a blatant attempt to usurp the constitutional protections for ALL americans against the unchecked power of one branch of the government, in this case the executive.  Did we learn nothing from the excesses of the Nixon years?  Or, Mr Bainbridge, is this just another example of those who believe that “if the president does it, it isn’t against the law”? */

And similar sentiments.

It’s not so much that, nor is it “if President Bush does it, it *must* be against the law” either.  The “torture memos” don’t advocate any particular interrogations.  They don’t end with “and, therefore, we should beat the bejezus out of anybody the US captures.” They only list several US cases where a court determined that a particular action was or was not torture (severe physical beatings: torture; placing somebody in a jail cell with an HIV-positive rapist: not torture) and try to draw a line between the various cases (namely, that if it feels like severe organ failure, then it’s torture).  IIRC, they don’t even mention waterboarding.

Although I wasn’t in the room when the President asked “under the law, what constitutes ‘torture’?” these memos really do not look to me like an attempt to make the law fit a previous decision.  Instead they look like what I would expect the next logical step to look like after capturing some high-value Al Quaeda leaders who were able to see through the normal “good cop, bad cop” interrogations the military uses.  Something along the lines of “the military manual of interrogations lists several different techniques that have been effective in past wars, but those techniques haven’t worked in this case.  We need to try something else.  Before we set that up, what are the limits on what we can do?”

In fact that fits very well with the “currently the CIA is not allowed to pass along certain information to the FBI even if that information implies a crime has or will take place.  Is that really what the law says or is it simply an attempt to make sure we don’t come close to crossing certain lines?” that made such a big appearance in the 9/11 Commission’s report.

The interesting parts to me are that (1) every time I hear somebody condemn the torture memos, there isn’t much beyond simple emotion in their argument, (2) Anderson’s comment is the first time I’ve honestly seen a criticism of the memos based on legal principles (overlooked some cases, mis-stated others) so now I’ve got to go back and re-read them in light of the new information, and (3) even with this new criticism, I haven’t yet heard anybody tell me where the line legally does exist or where it should exist.  OK, so we both agree that pain on the level of organ failure is torture.  You say that something less than that is also torture.  How much less?  We both agree that failing to properly treat a hangnail is not torture.  So there is a very big area there that isn’t mapped.  Waterboarding’s a famous “tough case.” Personally, and for the record, I believe waterboarding should be illegal because it’s a mock execution not because of the amount of pain involved.  But if waterboarding is torture how much less is also torture?

Yoo was asked where the law draws the line.  You don’t like where he drew the line.  The two important questions then are (1) where should the line be drawn, and (2) should Yoo be fired as a tenured professor for disagreeing with you?

It is clear that Yoo jettisoned all sense of legal ethics and legal skill in drafting that memo.  First, a legal counsel to the government Yoo had an obligation to act in an ethical memo.  It would be perfectly acceptable for Yoo to answer a question from Gonzo or Card asking “is it legal to torture al-qaeda operatives?” It is, however, clear from the memo and the context that this is not what occurred.  It appears much more likely that Gonzo, Card, Cheney, etc. assigned Yoo to “come up with a justification, no matter how legally flimsy, for permitting torture of GWOT detainees.” That is unacceptable.  When KPMG partners issued those types of flimsy tax shelter opinions, they were indicted.  Yoo offered a flimsy opinion on a far more important topic.

Second, as a performance issue, his performance as a lawyer, in the most important memo he knew he would ever draft, was tragically poor.  He omitted key (and rather famous) precedent and abused and misinterpreted other precedent. As Prof. Kerr noted, “the quality of the doctrinal analysis is generally poor.” Even Goldmsith called the quality of the memos “poor.” This, in the most important memo he would ever write.

It is not an academic freedom violation a law school to get rid of someone because they are a bad lawyer.  It is also not an academic freedom violation to get rid of someone because they are an unethical lawyer.

Anderson’s comment is the first time I’ve honestly seen a criticism of the memos based on legal principles

Max, I would suggest looking at this Balkinization thread, where attorney Dilan Esper, in commments, tags the more egregious bits that he finds.

The point is not that Yoo disagrees about where “the line” is.  (Hint:  Soviet torture methods like forced standing are probably on the wrong side.) The reason to detest Yoo is that he deliberately wrote a shoddy, legally indefensible argument as a fig leaf for torture that higher-ups had already decided was going to happen.

See, an OLC memo is widely taken to be a “get out of jail free” card—if the OLC said that X was lawful, and you the faithful gov’t servant relied thereon to commit X, then you will raise the OLC memo as a defense.

The cynical people who gave Yoo this assignment knew how the system worked, and knew that an OLC memo would be indispensable for dealing with their more prudent subordinates.

I have one simple question about John C. Yoo.

Ignoring the morel issues around his 2003 Memo on Interrogation, how can anyone continue to allow someone with so little regard for the US Constitution to continue teaching law?

I’m glad to have received less emotional and more rational responses than I expected.  I haven’t read the memo(s) in a long time, and will need to go searching.  I also understand a new memo was released, which I will need to see if I can scrounge it up for comparison.

Then again, I have a feeling that much of the opposition to Yoo’s tenure are upset about the “Unitary Executive” theory, but that theory can’t be shoehorned into a “moral turpitude” argument.

The answer to Nightmage61 is that in the US, once a professor gets tenure it is nearly impossible to fire him.  It’s possible to give him non-teaching assignments, but firing is only available for the worst cases (like, say, child molestation, hence the “moral turpitude” argument).  Thing is, the very same people trying to fire Yoo are the first people to cite tenure in cases where a professor, say, lets Playboy film college students in his house ( http://mojomom.blogspot.com/2004_09_01_archive.html—yes he wrote an apology, but does he still have his job?).

William Roper: Now you give the Devil benefit of law!

Sir Thomas More: Yes, what would you do?

William Roper: Cut a road through the law to get after the Devil? Yes. I’d cut down every law in England to do that.

Sir Thomas More: And when the last law was down, and the Devil turned on you...where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast...Man’s laws, not God’s, and if you cut them down...and you’re just the man to do it...do you really think you could stand upright in the wind that would blow then?

Yes. I give the Devil benefit of law for my own safety’s sake.

Yes, I know that passage could be used against Yoo in the sense that his memo “cut down a law.” On the other hand, I’m not (yet) certain it did.  I do know that weakening tenure would be used against more than just Yoo.

I get that it is nearly imposable to fire a person with tenure. But is he still TEACHING? You said he could be assigned to other duties but has he been?

Personally, if I had to keep him working for me, I would put him in charge of finding and verifying every index card in the law library, starting with the section on the US Constitution.

If the University is ok with giving him money to stay out of sight and mind I would be all for that. But heck, I wouldn’t have hired him in the first place.

Mr. Lybbert,

This is a perfect example of the bizarre logic that the Bush administration’s lawlessness has indroduced into our politics. Orwell was right. Black is white, war is peace and torture is love.
Evidently detainees aren’t the only torture victims here, the English language and commonsense have taken some rubber hose beatings over the last seven years as well.
I’m stunned that you’d use More’s defense of the devil speech to defend Yoo’s tenure. The implication is that you’re OK with the devil (terrorists) being tortured, though. I hope I misunderstand you.
It is odd to worry about some hypothetical threat to academic freedom because Yoo is being criticized for his bad work at OLC, while we have actual torture (NOT a hypothetical) because of his bad work. Real, documented torture that has been inflicted not just on bad guys but on people who were factually innocent as well.
Yoo, along with other high U.S. officials (he’s not alone in blame) authorized torture, an act completely devoid of honor.