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Students Protest Hiring OLC Alum:

Inside Higher Education reports that a group of students and professors at the University of Minnesota Law is upset that University of St. Thomas professor Robert Delahunty is scheduled to teach at Minnesota next semester. Their objections center on Delahunty's tenure at the Office of Legal Counsel, where he was a career civil servant. At OLC, Delahunty participated in drafting controversial memos relating to torture and the treatment of detainees.

"He's prominent for all the wrong reasons," said Jon Taylor, a first year law student at Minnesota who has been circulating a petition asking the law school's dean to reconsider the hire. "I don't think this is what we're paying for at a top 20 law program." The law school has about 800 students, and Taylor said that he has gathered close to 70 signatures and expects to reach 100 by Friday.

The controversy stems from a memorandum drafted in 2002 by Delahunty and a Justice Department colleague, John Yoo, a conservative scholar and professor of law at the University of California at Berkeley's Boalt Hall. Drafted shortly after 9/11, the memo concluded that the Geneva Convention did not cover al-Qaeda suspects captured in Afghanistan, and helped lay the foundation for the Bush administration's handling of prisoners captured during the war on terror.

Inside Higher Ed also notes that the plan to hire Delhunty has divided the Minnesota faculty. A story in the Minnesota Daily quoted Associate Dean Michael Paulsen in support of Delahunty's visit.

"Robert Delahunty is one of the nation's leading constitutional and international law scholars," Paulsen said. "He's an outstanding teacher."

Some of the controversy comes from a misunderstanding of the facts, Paulsen said. Most likely, many students are not familiar with Delahunty's memo.

Paulsen also said the protests are coming from a few extreme individuals in the Law School.

"That's a gross violation of academic ethics and academic freedom," he said. . . .

"It sometimes happens that even professors are not respecters of academic freedom and get their facts wrong, too," he said.

Nine members of the faculty responded to the plans to hire Delahunty and Paulsen's comments with this letter, concluding:

Our opposition to the hiring of Mr. Delahunty has got absolutely nothing to do with academic freedom but all to do with legal ethics. Mr. Delahunty's role in the Torture memos was not academic and we object to hiring someone of his credentials rather than to anything that he may say in class should he be so hired or concerns about his scholarly research or academic work.

We thus call on our Co-Deans to reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accomodate students who may have concerns about taking a mandatory course from such an individual.

The student petition organizers explained their opposition in these terms to the Minn. Daily:

"It doesn't have anything to do with academics; we hear he's a fine teacher," Taylor said. "It has more to do with ideology."

Taylor said students and staff were uninformed about the decision, and those active in human rights immediately recognized the name because "amongst human rights violators, he's a pretty prominent leader."

Interestingly enough, the class Delahunty is scheduled to teach is one normally taught by co-conspirator Dale Carpenter.

UPDATE: UMinn law student Ivan Ludmer offered these thoughts on the petition at Joint Strike Weasel. I've also learned that St. Thomas' decision to hire Delahunty was criticized as well.

On the issue of Delahunty's role at OLC, here is what John Yoo wrote about Delahunty in War by Other Means: An Insider's Account of the War on Terror:

When the question of the application of the Geneva Conventions came to OLC, I asked Robert Delahunty to help me with the initial research and drafting of the opinion. Delahunty was one of the three career lawyers in the office who had risen to the level of the Senior Executive Service, the top crust of the civil service. A man in his early fifties, Delahunty had a large white beard, a mane of white hair, a round jovial face, and a hint of an English accent--he often reminded me of a kindly Saint Nick. He had first gone to England to study Greek and Roman philosophy and history, eventually becoming a tenured faculty member at a British university, left to go to Harvard Law School, and joined the Justice Department in the late 1980s. He had drafted many of OLC's opinions on war powers, foreign policy, and presidential-congressional relations under the first Bush and Clinton administrations. He had an encyclopedic knowledge notjust of the law and academic works, but of the real lifeblood of international law--the examples of state practice. To my mind, Delahunty was the very model of the career civil servant who applies his or her long years of experience and knowledge to the benefit of the American people.
As far as I am aware, this is the only discussion of Delahunty in the entire book. In his subsequent discussion of the infamous "torture memos," Yoo does not detail the nature or extent of Delahunty's role.

Hoosier:
"It doesn't have anything to do with academics . . . It has more to do with ideology."

Well, at least the perpetrator of this quote won't be accused of being post-modern, since academics and ideology are, it would appear, unrelated in his mind.

Remember when great law schools used to teach critical thinking skills?
11.29.2006 9:40am
cirby (mail):
I wonder how many of the faculty there got their street cred as lawyers by defending people that most folks would consider to be the scum of the earth, or managed to get not guilty verdicts by less-savory means...
11.29.2006 9:48am
Jeremy T:
Given what I've seen of Dale Carpenter's constitutional views, the students will be in much better hands with Mr. Delahunty.
11.29.2006 9:52am
Truth Seeker:
"It doesn't have anything to do with academics; we hear he's a fine teacher," Taylor said. "It has more to do with ideology."

So there's an idelogical litmus test? And the most radical 10% of the students will set the standard? If so our educational system needs an enema.
11.29.2006 9:59am
Steve:
I'm sure the folks who urged Yale not to hire Juan Cole will speak up loudly for the right of these students to protest.
11.29.2006 10:01am
alkali (mail) (www):
Is there any principle that mandates hiring Delahunty for the law school that doesn't require hiring Dr. Mengele for the med school?
11.29.2006 10:08am
faux facsimile:
Don't they realize Delahunty is uniquely qualified to help them get into some of the most powerful positions the legal profession has to offer? I mean, who wouldn't want a chance to be the next assistant to John Yoo?
11.29.2006 10:10am
myalterego:
Speaking as one who believes that the infamous "torture memos" were ill-advised and legally incorrect, I fail to see how exercising some sort of retribution (in the form of denying a temporary teaching position) is the best way to oppose such ideology. I would much rather see the students and faculty who oppose Delahunty's appointment try to engage in a genuine debate about the topic, wholly apart from his appointment as a professor. Many of us liberals have complained that President Bush has spent the last six years dismissing our viewpoints out-of-hand rather than engaging us and addressing our positions in a thoughtful way. I see no principled reason to not engage others in meaningful debate rather than knocking heads... so long as that's how we want to be treated as well.
11.29.2006 10:10am
Anderson (mail) (www):
Everyone who cooperated in the torture memos should be a professional pariah. Look what our "constitutional expert" came up with:
The controversy stems from a memorandum drafted in 2002 by Delahunty and a Justice Department colleague, John Yoo, a conservative scholar and professor of law at the University of California at Berkeley's Boalt Hall. Drafted shortly after 9/11, the memo concluded that the Geneva Convention did not cover al-Qaeda suspects captured in Afghanistan, and helped lay the foundation for the Bush administration's handling of prisoners captured during the war on terror. * * *

Shortly after Yoo and Delahunty wrote the memo in 2002, William Taft, legal adviser to the U.S. Department of State, wrote a rebuttal, calling the memo's legal analysis "seriously flawed" and its conclusions "untenable". When the memo was later leaked along with other internal documents, a long list of prominent law experts wrote a letter to President Bush stating, "The lawyers who approved and signed these memoranda have not met their high obligation to defend the Constitution."
Good luck to the petitioners; and if he does get hired, I hope nobody takes his classes. I despise him, Yoo, and every one of those unmentionable-due-to-comment-rules.
11.29.2006 10:11am
Joe7 (mail):
Except a plain reading of the Geneva conventions indicate that al-Qaeda suspects are not covered by it except to EXPLICITLY exclude such people from its protections.
11.29.2006 10:17am
microtherion:
Yes, I suppose since Roland Freisler's academic career was so rudely preempted by the Allies, Delahunty's hiring is the next best chance to give this school of constitutional thinking some academic representation.
11.29.2006 10:26am
Realist Liberal:
Dangit, myalterego said exactly what I was going to say. But I'll add to that the fact that I have a few friends who have taken Constitutional Law with Prof. John Yoo (also of "torture memo" infamy). They said that he is probably the most fair (in terms of ideology) professor they've ever had. He will make arguments for both sides, encourages debate and seems to truly enjoy it when it happens. I see that as a good thing rather than a bad.
11.29.2006 10:30am
another anonVCfan:
"I don't think this is what we're paying for at a top 20 law program."

We're paying for liberal teachers, dammit!
11.29.2006 10:35am
Bryan DB:
myalterego makes a fine point.
My further view is this: We, as lawyers are not obligated to live near the ethical floor of what our ethics rules allow; just because we can do something doesn't mean that we should. Mr. Delahunty has likely been handsomely rewarded by his employers for his "legally untenable" memos; let him now pay the price for his legally falacious advocacy of the mistreatment of other human beings.
11.29.2006 10:43am
Siona Sthrunch (mail):
It's amazing, isn't it, how so many people without a background in international law, who have not even read the memo, have such strong feelings about it? John Yoo is a superb scholar and a terrific teacher, who has published his views in many law review articles and books, but whose classes are now disrupted by masked demonstrators, none of whom even read or want to discuss the Geneva memo, which is a thoughtful and scholarly jurisdictional analysis. The Geneva convention does not apply to members of drug cartels - what rule of law shows it applies in fact to Al Qaeda?
11.29.2006 10:47am
JB:
I agree with BrianDB. Given the atrocious reasoning in the torture cases, and what they mean for our liberty, I find it hard to get worked up about the authors of it meeting negative professional consequences.

This isn't on the same level as conservatives being rejected by ideological faculty--this is revulsion by the populace. I doubt you could get 100 signatures on a petition to hire him.
11.29.2006 10:51am
Adam:
It seems that reasonable minds can disagree about the legal validity of the torture memos. Is that true or false? Even if most people think the memos appear to be more "wrong" than "correct", why would students and professors so vehemently opose to the author of an answer to a question that does not have a mathematiacally precise answer?
11.29.2006 10:56am
wm13:
Guess again, JB. I didn't go to University of Minnesota, but if you had promised that there would be no professorial retribution (which of course there would be), it would have been easy to get 100 signatures on such a petition at Boalt. Of course, at a law school, those without tenure (i.e., the students) tend to keep their heads down. (Readers of Prof. Althouse's blog know that even some of those with tenure keep their heads down.) But remember, you haven't converted your students merely because you have silenced them.
11.29.2006 11:10am
Gabriel Malor (mail):
It seems that unlike the students at Minnesota, the commenters here would like to claim that it is Delahunty's legal abilities that should count against him.

I wonder why the students went after his ideology instead. Of especial note is the fact that the students (and some commenters) seem to think it's entirely appropriate to deny employment based on ideology. I'm sure there's a cogent remark about blacklisting and McCarthyist intimidation in here somewhere, but Democrats are better at that type of claim, so I'll leave it to them.
11.29.2006 11:13am
hey (mail):
Only treason is allowed at an elite institution, not anyone that will aid and abet the defence of the United States, its allies, or the forthright application of the text of International Law.

These protesters forget that taking prisoners is a massive excercise of generosity. Anyone captured under arms and out of uniform can be summarily executed as an illegal combatant. The US should be quickly interrogating people and then giving them their Geneva Convention approved punishment.

Of course these are the same people that used the execution of a Communist spy as evidence of the cruelty and immorality of the United States and the Republic of South Vietnam. They are nothing but traitors and should be given nothing but a traitors reward. End the Fifth Column, NOW!
11.29.2006 11:14am
Thales (mail) (www):
This is not the right test case (nor is Yoo), but surely there is some point where a person's career as a civil servant or openly expressed views and collaboration with the political regime have a bearing on the appropriateness of hiring said person to teach in the academy? Imagine that Martin Heidegger were alive today--is there a legitimate case to be made for not hiring him (he professed support for some version of Nazi principles long after he could make any credible claim that his statements emerged under duress), despite his greatness as a thinker, scholar and teacher?
11.29.2006 11:17am
18 USC 1030 (mail):

I apologize that this became so long but here goes:
Being that I am three weeks away from exams, I should not be commenting on Delahunty's memo, but I will… I should start off my saying that I have worked directly for an International Human Rights Scholar/Advocate and personally think it, at the very least, awful policy not to provide Geneva Protection to AQ/Taliban. However, I also respect the need for fair evaluation of the memo. The memo did not say that the president ought to torture AQ/Taliban combatants, it did not say that the combatants ought to be treated inhumanly, nor did the memo even state that the combatants should be treated contrary to the Geneva Conventions. The memo merely stated:

We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that these treaties do not apply to the Ta1ian militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.

Now as much as I hate to agree with Yoo/Delahunty, I think their interpretation correct. I think as a matter of policy the president must extend these protections to the combatants; however, I am not sure that they are, as a matter of law, entitled to these protections. I think as a matter of law they ought to be entitled to protections—but, this is a defect in the treaty, not in the application of it.

Looking at the historical context of the Geneva Conventions, I think the memo is correct in stating that the Conventions were meant to protect (1)those engaged in international conflict between contracting states and (2) those engaged in a Civil War within a Contracting state.
It is true that no one in 1949 imagined the type of conflict that which we are now engaged; however, this does not rationalize the view that the protections of the Conventions apply. I disagree with the memo in that I believe Customary International Law ought to apply—however, I do not believe that a treaty ratified in order to protect contracting states applies to a non-state actor engaged in hostilities. It is true that the Convention may apply to non-contracting parties; however, this provision is applicable only in specific outlined instances: specifically, when the non-contracting party agrees to follow the stipulations of the Conventions. That is to say that if the Taliban were to say we accept and agree to follow the requirements of one or all of the Conventions, then the United States would be required, as a matter of law, to extend the same protections. The Geneva Conventions were not set up to limit the actions of certain states whilst allowing others the right to exercise these actions. The Conventions were set up so as to "level the playing field" in order to protect life.

That is to say the purpose of the Conventions was not to say Party X you ratified the Conventions; there fore you cannot do A,B, or C. However, Party Y you did not ratify the Conventions; therefore you can do A,B and C. Rather the purpose was an agreement Between party X that they would not exercise action A if party Y agreed not to exercise action A, and vice-versa. This was a Hobbesian social contract of sorts. To claim that the United States, as a matter of law, was required to grant the Geneva protections, whilst at the same time forcing the US to suffer the harm caused by the opposition's complete disregard for, (if not purposeful violation of) the Conventions is an absurd interpretation of the Treaties.

That being said, I believe it equally absurd that the US in an effort to bring "freedom, justice, liberty, etc." to the Middle East would do so in a matter exhibiting none of these principles. I cannot fathom how one can in effect bring freedom and justice to people without exhibiting the highest regard for any International standard of Human Rights protection. We cannot say we are going to root out these anti-freedom fundamentalists and install a just government when we deny people any of the fundamental rights endowed in all. The president should have, as a matter of policy, followed the Geneva Conventions.

I think the major point of contention with the memo should not be the memo's views towards the Conventions; but, the issue should be with the memo's view of Customary International Law. The CIL should apply blindly to everyone, without regard to nationality, state/non-state actor, etc. Furthermore, many of the "violations" of the Conventions were Constitutional Violations. Though the Conventions do not apply to these actors, the wording of the relevant amendments apply to people: not citizens, not residents; but to all people.

The memo's complete lack of attention to this I believe is also a fair indicator that the memos are very troubling. The fact that people are ignoring these latter points in order to jump on the Geneva point I think is debilitating to the arguments put forth by the detractors. The Geneva point I think easily explained away—the others are not as easy for supporters to defend against. Why rest your argument on the weakest of all arguments?

As an aside, I think my statements regarding the Conventions are evidence that something may need to be done in order to change the formulation of International Humanitarian Law in order to outline the correct course of action in dealing with transnational non-state actors. Merely wanting the Conventions to apply does not magically make them apply.

The memo can be found here:
Sorry this was so long…
11.29.2006 11:39am
Gabriel Malor (mail):
Thales, what you're saying (I think) is that there are some beliefs and ideas so odious that their proponents should be barred from the academy. That is an ugly and deeply illiberal position.
11.29.2006 11:40am
o' connuh j.:
In short, Delahunty's "complicity" extends to providing a correct interpretation of treaty law for his country.

This constitutes being implicated in a war crime apparently. Good grief.
11.29.2006 11:47am
Stephen F. (mail) (www):
let him now pay the price for his legally falacious advocacy of the mistreatment of other human beings.

You mean the legally falacious argument that four Supreme Court Justices approved of? That legally falacious argument?
11.29.2006 11:47am
A.S.:
Not one but TWO comparisons to a Nazi! Godwin's Law satisfied within one hour of posting. Awesome thread. Great job!
11.29.2006 11:53am
asdfjkl; (mail):
Imagine a math professor who was famous for "solving" a unique problem, only it later turned out that the solution was flatly incorrect.

I don't think the math department of a famous university should hire this "renowned" mathematician, nor should Mich hire this guy.

Of course, math has a right and wrong. So did this guy get it wrong (in the way of a 1L who doesn't understand what he's reading) or did he push a theory that was unpopular. If it's the 2nd, I must agree with Malor above me.

It's up to the school to make that choice.
11.29.2006 11:55am
Thales (mail) (www):
"Thales, what you're saying (I think) is that there are some beliefs and ideas so odious that their proponents should be barred from the academy. That is an ugly and deeply illiberal position."

I am testing that idea that there might be a point indeed where uncoerced *actions* (though doubtless made in connection with beliefs and ideas) might legitimately factor in to an individual academic employer's decision to hire. I am sorry that I wrote ambiguously--I meant to put the focus on voluntary actions, not just ideas, with my example of Heidegger. Heidegger's life is in fact an example of actively bringing into being ugly and deeply illiberal positions (indeed extending to helping remove other university professors for their beliefs that contradicted the orthodoxy of the Third Reich). Even said actions would have to be odious in the extreme for me to entertain this idea (I'm a strong supporter of the ACLU), but is it so crazy? What if the professor in question had not just written legally dubious memos, but actively participated in interrogation techniques/torture that the memos authorize? What then?
11.29.2006 11:57am
A.S.:
Whoops, sorry, I was in error. I missed the Heidegger reference. That makes THREE Nazi references, not two. My apologies.

(Expecting a "if the comparison fits" comment in three... two... one...)
11.29.2006 11:58am
watcher:
As a U of M Law grad, let me first of all say our moral and ethical senses are more acute than anyone else. As a resolution of the issue, perhaps the faculty and students who are in a tizzy about Delahunty would be assuaged by having the class co-taught with Ayman Al-Zawahiri. I understand that he may not have the appropriate academic credentials, but he could bring some real life experience to the application of constitutional law to modern every day life. Plus, should the con law class delve into the correlation of con law with international law he would have insight into torture and inhuman treatment (i.e., the relative merits of water boarding as opposed to the artful use of the scimitar).
11.29.2006 12:01pm
Thales (mail) (www):
"Whoops, sorry, I was in error. I missed the Heidegger reference. That makes THREE Nazi references, not two. My apologies.

(Expecting a "if the comparison fits" comment in three... two... one...)"

My point, at any rate, was that the comparison does *not* fit this case, but that Heidegger's life illustrates that there *might* be a point where an academics's (nonacademic/political) actions could make legitimate the refusal to hire. To be clear(er), I do not think John Yoo, David Addington, etc. are Nazis. I do wonder whether the people that supported the investigation and discipline of Ward Churchill (for what was genuine academic dishonesty, but only triggered by his ridiculous statements) would also support, in principle, bringing up OLC members' conduct (if not speech) in making hiring, tenure, etc. decisions. If not, are their views intellectually honest?
11.29.2006 12:10pm
W.D.:
A.S., I'll call your Nazi references, and raise you a McCarthyism, blacklist, treason, communism, and a Fifth Column.
11.29.2006 12:17pm
A.C.:
I like the analysis provided by 18 USC 1030 strikes me as generally on target, except that it seems to leave out one item I consider important. People cite international laws of war as providing protection for individuals caught up in wars, but I believe that part of the original purpose was to constrain wars as a whole to make them more humane. This was part of the rationale for NOT protecting combatants who hide among the civilian population and target civilians deliberately as part of their strategy. Failing to provide such protection wasn't so much an omission as a deliberate attempt to discourage this style of war-fighting.

I also seem to recall that this interpretation was challenged by people who favored "asymmetric" warfare in places that were trying to fight off various colonial powers. People who idealized guerillas and insurgents wanted to provide the same protections for these people that were provided for armies that fought according to the established rules of war. This is about where my international law runs out, so I'll leave this as a question -- is human rights protection for guerillas and insurgents who do not follow the laws of war themselves now a part of customary internation law? I know it isn't part of the treaties themselves.

That said, the thing that bothers me about the whole situation is not that something vile (up to and including secret execution) might happen to known al Qaeda members in US custody. I truly don't care if it does. What bothers me is that there is no transparent way of sorting out who falls into this "I don't care" category and who does not. That's the best argument I can see for extending protection to people who are not entitled to it and do not deserve it.
11.29.2006 12:53pm
SeaLawyer:

This isn't on the same level as conservatives being rejected by ideological faculty--this is revulsion by the populace. I doubt you could get 100 signatures on a petition to hire him.


I will put that to the test tomorrow during lunch.
11.29.2006 1:12pm
Gabriel Malor (mail):
Forgive me Thales, I missed your emphasis on action rather than just the holding of an idea. Regarding the action, I can only echo Professor Volokh's post aboce noting that unless you believe that Delahunty was unethical, he did the right thing.
11.29.2006 1:15pm
18 USC 1030 (mail):
A.C. I agree with you that this type of warfare was excluded for the reasons you set forth; however, I think that it might be necessary to revist that thought in order to determine whether we should now mandate particular rules for asymmetric warfare. I would argue that it is possible that from a Human Rights standpoint, the US should not do , Y, or Z. I am not trying to go off the deep end here and say anything above "please tell me what you know, sir" is torture. However, I think there are certain actions that have entered the realm of being "off-limits" in all cases.

At some point Humanitarian Law and Human Rights Law has to converge. Now, whether we want to use (new) treaties, custom, or rely on our Constitutional mandates, I don't think matters. But, I think we can all agree that there is some point at which the government goes too far--whether Geneva applies or not.
11.29.2006 1:49pm
A.C.:
I agree that we do need rules for asymmetric warfare -- especially due process rules, given that the combatants and the civilians will be dressed the same and in the same place. But I do want the rules for what is done with at least the upper ranks (once they are identified) to be on the harsh side, to drive home the lesson that such people are NOT considered to be the same as normal soldiers. The results of asymmetric warfare have turned out to be so incredibly ghastly, even in the post-colonial context where it was supposed to be a good idea, that I want to see a lot more emphasis on how intolerable it is to all civilized people.

I would be inclined to be nicer to the rank-and-file, though. At least some of them may be participating due to fear, coercion, or a misinterpretation of the situation, and benevolence there might actually do some good. But the idea is that it IS benevolence, and something people should appreciate rather than demanding as a right.
11.29.2006 2:20pm
18 USC 1030 (mail):
AC that is what I am saying--except I would argue that "certain acts" would be prohibited by matter of right. Obviously this bar would be much higher than that for traditional POWs.
11.29.2006 3:26pm
Steve:
You mean the legally falacious argument that four Supreme Court Justices approved of? That legally falacious argument?

Arguably, Justice Thomas agreed with these arguments. You're going to have a great deal of trouble counting to four, though. The dissent in Hamdan was premised upon the jurisdiction-stripping provision of the Detainee Treatment Act, which didn't even exist at the time the memo was written.
11.29.2006 4:28pm
fun!:
Jon Taylor was misquoted. He said that the student concern was neither academics nor ideology, but rather ethics, and that Delahunty is not someone the University of Minnesota Law School should be associated with.

The memo is so one-sided and such poor legal analysis that Professors Yoo and Delahunty are either incompetent or authored it in bad faith, the result of which was legal justification for torture and actual torture -- either way, given their status as OLC attorneys, that arguably makes them war criminals (and this argument would be stronger than the one put forth in the memo).
11.29.2006 7:55pm
Amy Bergquist (mail):
Fun! is correct. In the interests of accurate discourse, please correct the mis-quote of Minnesota 1L Jon Taylor. If you look at tan/gray box at the top of the article, you will see the correction issued by the Minnesota Daily:

http://www.mndaily.com/articles/2006/11/28/70055

Correction
This article incorrectly quoted Jon Taylor. He said "it doesn't have anything to do with ideology." Taylor said he questioned Delahunty's ethics.

The reporter actually had a recording of his statement, went back and listened to it, and realized she had misquoted him. It is interesting that people may hear what they want to hear.
11.29.2006 8:13pm
srp (mail):
There is one sound policy reason for committing to not-too-awful treatment of captured terrorists--marginal deterrence. You want to give people an incentive to surrender rather than fight to the end, because that saves our troops' lives and reduces the cost of war to everyone. It's tricky, though, because if getting captured is really a big nothing, you may induce some people to sign up for terrorism in the first place. There's a whole sequence of decisions along the way: join up/don't, commit atrocities/don't, surrender/don't, etc., and you want to calibrate outcomes to provide deterrence at each margin.
11.29.2006 8:30pm
Public_Defender (mail):
Torture is evil. Working to support and encourage torture is evil. Doing it in a top government job doesn't make it less evil, it makes it worse.

A willingness to make excuses for torture is a sign of moral bankruptcy.
11.30.2006 5:11am
Public_Defender (mail):
Stephen Carter tells a story about a lawyer answering a client's question at a time when some, but not all, of the modern civil rights laws had been passed. The client wanted to know if he could discriminate against blacks. The answer at the time was yes, because the existing civil rights laws did not apply to the client's situation.

But the lawyer didn't stop there. The lawyer advised the client that exercising that right would be morally wrong and that the client should not discriminate.

If Delahunty worked to justify torture and took no steps to try to stop it, he should be shunned.

Remember, part of why Republicans lost Congress is that they lost their moral compass. Anything that increased their power was accepted. Delahunty's supporters should remember that.
11.30.2006 5:28am
18 USC 1030 (mail):
Public Defender read the memo--I linked to it in my original post. The memo did not "justify torture and take no steps to try to stop it." The memo is NOT a through examination of the legality of detention/torture. The memo IS answering the very pointed question: do the Geneva Conventions apply to the Taliban and AQ fighters. That is all; nothing more, nothing less. The memo clearly states that there may be other legal principles that regulate the detention procedures. Unfortunately, he wasn't asked to draft the memo in regard to CIL/Constitutional requirements--He was asked to determine whether AQ and the Taliban were governed by the Conventions.

I agree that the lack of comment on these issues was troubling (see my first post. But, I am not convinced that he worked to "justify torture." The question was not "can we torture guys on the battle field."

As an aside, why is everyone suggesting he doesn't know the purpose of a memo? He didn't write a predictive memo--how do we know he wasn't asked to provide a persuasive memo? Are we sure that no one in OLC wrote a memo arguing the opposite side, a memo that was just kept "more secret" because of it leaked it'd cause major problems to the president? I'm not sure that it is likely--most likely it is not likely-- but isn't it at least plausible that someone in OLC wrote a memo saying the Conventions apply and someone else wrote the opposing view? Sure the question is obvious: If that is the case, why didn't the other memo see the light of day.
11.30.2006 8:49am
Amy Bergquist (mail):
18 USC 1030:

I think the tone expressed in the Department of State's response memo suggests that there wasn't a thought-out plan in advance that one group was going to marshall all the arguments for one side and then another group would come up with all the arguments for the other side.

If that were the plan, it would be rather strange, wouldn't it? Why would OLC (DOJ) rely on DOS to present the other side? And why would the DOS memo be so sharply worded if the assumption going in was that it was going to be a "paper debate"?

This makes me think about the Detainee Treatment Act in Pub. L. 109-148, section 1004(a), to be codified at 42 U.S.C. 2000dd-1


In any civil action or criminal prosecution against an ... agent of the United States Government ... arising out of the officer['s]... engaging in specific operational practices, that involve detention and interrogation of aliens ... that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer ... did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor ... to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.


So perhaps separating the arguments from the counterarguments into separate memos, and only providing the one-sided arguments to the officers responsible for implementing the executive's orders, was a means of providing them with legal cover?
11.30.2006 5:52pm
18 USC 1030 (mail):
Amy

As I said, I thought that view unlikely. But, it was perhaps worth mentioning in passing?
11.30.2006 8:00pm
Amy Bergquist (mail):
18 USC 1030,

My point was that even if it was a "paper debate" planned out in advance, that doesn't necessarily excuse the content of the memo if the entire exercise was designed to create a document that could later be relied upon in a defense of "good faith reliance on the advice of legal counsel" -- the memo doesn't clearly spell out that it is only marshalling the arguments for one side and that for a full understanding of the legal issue, a person should consider, for example, the arguments presented by the DOS. So even if an official reasonably believes in good faith that the document is a predictive memorandum, the context in which that memorandum was created and subsequently shared with those officials is suspect.
11.30.2006 9:13pm
The Drill SGT (mail):
I'm coming to this late and am not a lawyer, but I do have a passing familiarity with the GC, the laws of land warfare, and the basic history of the topic. 18 USC 1030 and AC have it about right.

The Primary purpose of the GC as I see it was to put in place a set of legal structures that encourage warring parties to so the things like wear uniforms, carry weapons openly, separate military emplacements from civilians, avoid targeting civilians, obey a formal chain of command etc. The benefit of these acts would be that their soldiers, when captured, would be treated IAW the GC.

Secondary result was I treat your guys under the GC, you treat mine the same way.


As AC rightly said, under the historical common laws of war, we would be within our rights to conduct summary courts and executions of AQ or other illegal combatants found under arms on the battlefield.

It is the impact on public opinion that prevents us from doing that, not the GC. we don't get much credit for our humane behavior.
11.30.2006 11:58pm
jmkeuning (mail):
SeaLawyer: get the petition together - I'll sign it. I am in a personal situation that does not afford extra time to sit in the subplaza but I want to get a counter-petition together. It looks like Tuesday is the first day I could put any time into it, but I will help out.

I think the ethics issue is mere pretext, and I would like some evidence that this opposition action is driven by something more.

I am a lowly 3L and I have not yet been convinced of any ethical breach. Have any bar associations responded to Amnesty's call for investigation?

Any petition that I sign will not state any conclusions about Delahunty's ethics. It will merely state that viewpoint diversity is important and that we express confidence in our Deans' qualifications and ability to make this temporary placement.
12.1.2006 12:07am