As co-blogger Jonathan reports, nine members of the University of Minnesota Law School faculty have signed a letter criticizing the law school's decision to hire Professor Delahunty to teach constitutional law as a visiting professor for one semester. Here is a representative excerpt of what they say [I rearranged the ordering of the pargraphs, but that doesn't affect the substance]:
[W]e believe that is necessary for us to disassociate ourselves from the decision of the Co-Deans of the University of Minnesota Law School to hire Robert Delahunty to teach Constitutional Law for the Spring term of 2007. We believe that in making the decision in this particular case the Co-Deans had been unaware of the grave institutional implications of hiring Mr. Delahunty and we call on them to rectify the situation. We can only assume that the Law School would not have hired Enron officials to teach accounting to our students. Nor should we hire, even if on a temporary basis, a lawyer so directly implicated in what many in the international community regard as war crimes....
In connection with his government service, and entirely outside any academic function, Mr. Delahanuty co-authored a secret (but later leaked) memo with John Yoo, in which they concluded that the "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution." The memo also concluded that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws had "no binding legal effect on either the President or the military."
This memo, part of the now notorious "Torture Memos," facilitated the eventual torture of detainees not only in Guantanamo but in Abu Ghraib and elsewhere. The Delahunty-Yoo memo gave the US Administration and its agents the legal blanket to conduct such acts, which are in clear violation of international law, with virtual impunity....
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 accommodate students who may have concerns about taking a mandatory course from such an individual.
Thus, in essence, the professors in question are calling for Professor Delahunty to be blackballed not just from Minnesota but from the legal academy; assumedly, the same objections they have to him teaching at Minnesota would apply to any self-respecting law school; one would assume that no such law school would hire "Enron officials" to teach accounting.
And what did Delahunty do to deserve this obloquy? Despite the rhetoric of his being "directly implicated in what many in the international community regard as war crimes," and the implication that he engaged in illegal activities like the Enron accountants, what he did was give his employer, the President of the United States, legal advice. The professors present no evidence that Delahunty's advice was not the sincere expression of his legal analysis of the relevant issues. So let's (safely) assume that Delahunty was indeed sincere. He is asked by the President to advise him on whether various treaties, statutes, and international customary law apply to conflicts with a non-governmental actor such as Al Qaeda, and whether the president may in any event have certain inherent constitutional powers regardless. He concludes that the statutes, treaties, etc., don't apply, and the president has a rather free hand. What is he supposed to do at that point? Give what he deems to be inaccurate, but politically correct, advice to the President? Wouldn't that be a gross violation of his professional obligations, and professional ethics? Very strange that the authors of the letter should claim that their opposition to Delahunty is grounded in "legal ethics." Is it ethical to give what you think is bad legal advice to your client?
The letter adds "that in Hamdan v. Rumsfeld, the U.S. Supreme Court rejected the conclusions of the Yoo-Delahunty memo and relied on the Geneva Conventions, in holding that the procedures adopted by the military commission for trying Al Qaeda and Taliban detainees did not meet the requirements of international law." That's a bit of a distortion, because, as I recall, the Court actually held that the UCMJ, a statute, was meant to incorporate the protections of the Conventions for such detainees, not that the Geneva Conventions themselves were necessarily otherwise binding and self-executing in these circumstances. But in any event, there were three dissenting Justices in Hamdan, and there would have been four if Chief Justice Roberts had not had to recuse himself. This should make it rather clear that Delahunty's views were well within the realm of a reasonable interpretation of the legal sources before him. Or are Justices Thomas, Alito, Scalia, and Roberts all to be considered "directly implicated in what many in the international community regard as war crimes," and have no moral standing above Enron officials?
It should be rather obvious that law schools should not have a policy of refraining from hiring individuals whose views on international law happen to not coincide with what "many in the international community" happen to believe, regardless of whether those views were expressed in academic journals, in blog posts, or (and perhaps especially) in serving one's client while in government service. And indeed, the professors' letter [or, more precisely, the remedies for Delahunty's secular heresy advocated in the letter] arguably violates the University of Minnesota's own policy on academic freedom, which states that "Academic Freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research and creative expression and to speak or write as a public citizen without institutional discipline or restraint."
Unfortunately, Delahunty's situation is not unique; from the scuttlebut I've heard, at least one "guru" of international law has explicitly based his opposition to faculty candidates at other law schools (at least when asked) on his/her distaste for their "conservative" perspective. The willingness, nay, eagerness, of some law professors to excommunicate any legal scholar who dissents from the conventional wisdom (at least among academics) regarding the scope of Executive Power in the War on Terror, and the role international customary and treaty law should play in domestic constitutional and statutory interpretation, is troubling indeed.
UPDATE: Note that Delahunty is not being attacked for the "torture memos," but for one particular memo he co-authored with John Yoo, arguing about whether the U.S. is obligated to give not state actors like Al Qaeda the same protections as members of a foreign state's military. The memo can be found here. I think anyone who reads this memo and concludes that the Yoo-Delahunty position is so clearly mistaken that it's facial proof of bad faith or incompetence (as some commenters have suggested) is reading it with a jaundiced eye. I tend to be skeptical of OLC opinions myself, because the Office seems to me to generally be trying to present the best legal arguments for what the president wants to do, rather than giving fully objective legal advice (and so I've been told by OLC alums). But (a) I don't expect career civil servants asked to help out on a case to follow that philosophy; (b) arguing that this is unethical would mean that law schools should never hire any OLC alums, at least if they worked on opinions related to foreign policy (what exactly was the LEGAL justification for attacking Serbia and killing hundreds of Serbians?, or for invading Haiti? or Panama?--all more serious, IMHO, than, e.g., the precise form of tribunal facing Al Qaeda detainees); and (c) the Yoo-Delahunty position received substantial support in the D.C. Circuit and the Supreme Court, suggesting that these were indeed serious arguments. And, as a commenter on another thread notes, the memorandum at issue states: "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."