pageok
pageok
pageok
A Lame Defense of the Opposition to Professor Delahunty:

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."

OrinKerr:
So let's (safely) assume that Delahunty was indeed sincere.

Whether rightly or wrongly, the signers of the letter clearly believe that this is not a safe assumption. Their view is that the memo is so obviously flawed and the analysis is so plainly incorrect that we can only conclude that the memo was written intentionally so as to misrepresent the law. Thus the Enron analogy: rightly or wrongly, this is really a dispute about good faith.
11.29.2006 11:17am
DavidBernstein (mail):
Orin, Delahunty was, according to Jonathan's prior post, a career civil servant at the time, with full civil service protections; he was not a political appointee, and had no particular incentive to skew his legal views. If people are implicitly accusing Delahunty of bad faith, let them present some evidence, beyond, "I vehemently disagree with his conclusions"--especially when the vehemence of the conclusion seems far more based on moral grounds than on legal analysis.

Hamdan, as noted, was five to four, which makes it rather difficult to argue that the relevant arguments were "plainly incorrect."
11.29.2006 11:23am
Steve:
I don't understand why it was ok to oppose Yale's hiring of Juan Cole but not ok to oppose the hiring of this gentleman.

I also don't understand the pretense that conservatives are the only ones who ever meet with ideology-based opposition.
11.29.2006 11:25am
David M. Nieporent (www):
I wonder how many of those people who oppose this hiring also opposed the hiring of that guy who wanted to teach 9/11 conspiracy theories in his Islam class. Or supported the firing of Ward Churchill.
11.29.2006 11:29am
OrinKerr:
David,

I have not argued that Delahunty was actually acting in bad faith. The legal analysis in the torture memos is so bad that you really do have to wonder about what its authors were thinking, but I have no evidence about the specifics of Delahunty's role, nor a view of how that should relate to legal ethics more broadly. My point is simply that the authors of the letter are really making a claim about bad faith, not about the correctness of substantive legal conclusions. The grounds of bad faith may be unpersuasive to you, but I take that to be their position.

I'm not sure why the vote in Hamdan is the benchmark here; can you explain a bit more?
11.29.2006 11:32am
Chumund:
I have no comment on the hiring issue, but I think it is worth noting that neither the "sincerity" of the legal advice nor the agreement of certain judges with the merits of the legal advice presents an absolute defense to a war crimes prosecution, as in fact was demonstrated in what is sometimes known as "The Justice Trial" at Nuremberg.
11.29.2006 11:33am
Federal Dog:
What I find very troubling about this is the seeming lack of understanding about what an objective memorandum of law is. Such memos are written every day in practice, and even 1L students should understand their nature and function. Here, both faculty and students do not seem to grasp the function of such a document and the ethical demands that drafting one entails. Is this due to lack of practice experince? Once they graduate, are such people allowing personal feelings about controlling law to trump accurate analysis of how that law applies to specific facts?
11.29.2006 11:34am
AF:
Academic freedom does not protect a lawyer-turned-law-professor from criticism based on his professional conduct. It's one thing to write a book advocating a position and quite another to advocate the position on behalf of client. Neither I nor, I take it, Bernstein, would have a problem if students were to protest a law school's hiring of Ramsey Clark, who, in the course of representing Saddam Hussein, stated publicly that Saddam's massacre of 148 Shiites was justified. Had he written that in a book, however, he would have a claim to academic freedom (albeit some might think he was stretching the boundaries of it). If you want to defend the torture memo, defend it, but not in the name of academic freedom.
11.29.2006 11:35am
DavidBernstein (mail):
The authors of the letter use the decision in Hamdan as evidence in support of their position. The decision actually works against their position, because the Court was closely divided. Obviously, there are other issues (including the definition of "torture") involved, but since the authors of the letter use Hamdan to support their apparent claim that Delahunty is incompetent and immoral, it's fair to point out that Hamdan shows no such thing.

As for bad faith, the authors not only don't provide any evidence of it, they don't even argue it explicitly. They apparently know no more about his role in the relevant memos than you or I do, or at least they don't show any evidence of such knowledge. Before writing a letter that is logically construed as suggesting that Professor Delahunty has no place teaching at any law school in the country, shouldn't the authors have something more than what they've got?
11.29.2006 11:38am
MnZ (mail):
I don't understand why it was ok to oppose Yale's hiring of Juan Cole but not ok to oppose the hiring of this gentleman.


It can be perfectly OK. If you think someone is a poor scholar, then you are justified in opposing their hiring.

I also don't understand the pretense that conservatives are the only ones who ever meet with ideology-based opposition.


I think Conservatives see a yet another double-standard applied by the Left. Many on the Left argue that ideology should not be the standard for university appointments. If one takes that view, then he or she cannot justly oppose Delahunty's appointment on the basis of ideology.
11.29.2006 11:42am
Byomtov (mail):
Let's see.

According to Associate Dean Michael Paulsen,

"Robert Delahunty is one of the nation's leading constitutional and international law scholars,"

According to Orin Kerr,

The legal analysis in the torture memos is so bad that you really do have to wonder about what its authors were thinking

If these statements are taken at face value, then surely they suggest that Delahunty acted in bad faith.

Besides, are we really supposed to take seriously the notion implicit in the post that the request for advice was purely neutral, with no indication from the White House as to the answers they wanted? If you believe that you should get out more.
11.29.2006 11:54am
MS (mail):
Federal Dog,

I think you're begging the question. The letter writers take very seriously the "ethical demands" on an attorney writing an "objective memorandum of law." Their claim is that Delahunty let politics cloud his legal judgment and wrote a disingenuous memo to provide legal cover for torture. A better practice analogy might be an opinion letter on an abusive tax shelter. The professors make a bold charge, especially since their only evidence is one really bad memo from a career lawyer. But, there it is.
11.29.2006 11:54am
Drive By Comments:
"If these statements are taken at face value, then surely they suggest that Delahunty acted in bad faith."

That assumes, of course, that Orin's opinion of the memoranda is correct.
11.29.2006 11:58am
Chumund:
By the way, I note the letter writers cite a couple articles (Bilder &Vagts and Wendel), which apparently discuss the issues in the letter in more detail. Obviously, I think one would have to look at those citations before assessing the totality of the letter writers' argument.
11.29.2006 12:03pm
Monkberrymoon (mail):
I once took a con law course from a visiting prof who thought that not only was affirmative action constitutional, it was REQUIRED by the Fourteenth Amendment. Now, I think that position is kinda retarded, but it would have never occurred to me that he was unqualified to teach simply by virtue of having that position.

And I doubt he could get four on the Supreme Court to go for that position.
11.29.2006 12:05pm
Steve H (mail):
I don't know too much about Delahunty, but I'm a Boalt alum who won't send a penny to the school as long as they continue to employ John Yoo. To me, the AG opinions did not read like a disinterested analysis given to advise a client. Not even close. Instead, they were advocacy briefs designed to justify a client's desired course of action.

Yoo was essentially advocating, as an employee of the United States of America, that the President claim powers (during the course of his term) essentially equal to those Hitler claimed. That the AG memos fail to even address the consequences of their conclusions provides even more evidence that the memos were actually advocacy briefs.

That Yoo and Delahunty had civil service protections does nothing to dispel the likelihood that they were acting to advance the administration's goals instead of giving disinterested legal advice. Civil servants like attention (and promotion), too.

For me, the bottom line is that Yoo willingly assisted the administration in its desire to obtain nearly limitless power at the expense of our constitutional structure. I think that justifies opposition to their hiring/employment.
11.29.2006 12:08pm
Peter Friedman (mail) (www):
Orin's right. The legal analysis in the torture memos is atrocious from top to bottom. See e.g. http://law.case.edu/faculty/friedman/raw/index.asp?rssId=158 I don't think one even needs to assume bad faith; incompetence is sufficient grounds to oppose his hiring.
11.29.2006 12:09pm
Steve:
It can be perfectly OK. If you think someone is a poor scholar, then you are justified in opposing their hiring.

Well see, if you're going to pretend that the opposition to Juan Cole wasn't primarily based on his ideology, we're never going to come to agreement on this.

Many on the Left argue that ideology should not be the standard for university appointments. If one takes that view, then he or she cannot justly oppose Delahunty's appointment on the basis of ideology.

But in the real world, professors like Juan Cole are, in fact, opposed on the basis of ideology. There's no double standard in opposing Delahunty while believing that it would be a better world if there were no ideological test applied in either direction.

Like many accusations of hypocrisy, your argument is nothing more than a call for the other side to unilaterally disarm.
11.29.2006 12:11pm
happylee:
I would LOVE to take a creative accounting class from an Enron accountant. (Tell me again how GAAP allows booking phantom income and disregarding real losses?) For similar reasons, I would love to take a creative conlaw class from Chemerinsky or this Mr. Delahunty fellow. (So tell me again how the 14th Amendnent incorporates Das Kapital and Mein Kampf?)
11.29.2006 12:11pm
Chumund:
Monkberrymoon,

Of course, the letter writers are arguing a bit more than that Delahunty took a clearly erroneous view of the law. They are actually arguing that his conduct made it more likely that the United States would engage in torture and that his conduct might amount to war crimes or crimes against humanity.

So, whatever one wants to say about the merits of their argument, I don't think one can say it is simply an ordinary academic disagreement.
11.29.2006 12:13pm
josh:
MnZ

"I think Conservatives see a yet another double-standard applied by the Left. Many on the Left argue that ideology should not be the standard for university appointments. If one takes that view, then he or she cannot justly oppose Delahunty's appointment on the basis of ideology."

You're contradicting your very counterargument to Steve's point about the hypocrisy of a conservative like Bernstein complaining about this blackball while staying mum on the blackball of Juan Cole at Yale. Having read Bernstein regularly on this blog, I think he in fact would have supported the Juan Cole blackball b/c he generally seeks to do away with opinions and beliefs regarding the Middle East with which he disagrees (not explicitly. I'll admit that is my reading of his many posts on the subject).

Calling Juan Cole a bad academic is a straw man argument that simply seeks to rationalize and distinguish the two cases of (in my view) improper blackballing -- whether by conservative interests or liberal ones. Academics often disagree about the merits of their peers' academia. That's the process of academia.

This situation in U of M is unfortunate. Those who disagree with Delahunty should take his class and challenge his erroneous opinions about executive power. I would envision that as a very fun class. Sort of like taking Corporations from Richard Epstein at U of C. Most students just sit there making fun of the guy, while he spits on the front row during his emotional outbursts.

But to take up the "cause" here of academic blackball on such a distinguished site for the first time, while utterly failing to apply the same standards to Cole's blackball is hypocritical and disingenuous.

PS: Oh, I note that Bernstein has attacked Cole on this site before in one of his many posts that unfailingly fails to allow for comments. The intellectual dishonesty continues!
11.29.2006 12:16pm
josh:
forgot to include one of DB's attacks on Juan Cole. Here:
11.29.2006 12:18pm
josh:
Oy, computers.

Here: http://volokh.com/ archives/archive_2005_01_23-2005_01_29.shtml#1107009094
11.29.2006 12:19pm
DavidBernstein (mail):
Let's all keep in mind that Professor Delahunty has been hired for a one-semester, non-look-see visit, to teach Constitutional Law. I have no opinion on whether Delahunty would be remotely qualified to be a permanent member of the Minnesota law school faculty, but the letter writers are arguing that even though he's a professor at a neighboring law school, he's not competent/qualified to teach even a single class at UM, or anywhere else for that matter, primarly because he helped write a legal memo, the conclusions of which the authors disagree with.
11.29.2006 12:30pm
Oren Elrad (mail):
Josh, i took the liberty of fixing your link

Josh's Link
11.29.2006 12:32pm
Chumund:
Professor Bernstein,

Don't you think it is important to note that the letter writers not only believe that the memo was erroneous, but also that Delahunty's conduct may have amounted to a war crime or crime against humanity?

Again, that strikes me as a very serious charge, and I don't think asserting that Delahunty's advice may have been sincere really deals with that charge.
11.29.2006 12:35pm
o' connuh j.:
Delahunty's conduct may have amounted to a war crime or crime against humanity?


Hilarious.
11.29.2006 12:37pm
DavidBernstein (mail):
Chu, I quoted that part of the memo. If the letter writers think that Delahunty violated legal ethics, they can file a complaint with his state bar. Otherwise, we have just their outrage at his legal views.
11.29.2006 12:38pm
PersonFromPorlock:

We can only assume that the Law School would not have hired Enron officials to teach accounting....

...but would this group oppose hiring the Enron officials' attorney to teach law?
11.29.2006 12:39pm
Chumund:
o' connuh j.,

Would you care to elaborate?

I should note, by the way, that I am not necessarily endorsing that view myself, and indeed even the letter writers state it as a possibility not a certainty (although they do seem to think that his conduct did make it more likely the United States would engage in torture, and that the United States subsequently did in fact engage in torture).
11.29.2006 12:40pm
Sigivald (mail):
Peter Friedman: Your blog (via your link) accuses Jay Bybee of an over-zealous attempt to extract a definition of severe pain from a federal insurance regulation, a memo.

What does that have to do with Delahunty and Yoo's memo, and how does it tell us that Delahunty is incompetent and that his reasoning is atrocious? Or are you saying that Bybee wasn't the author of the memo, as you said then, and that Delahunty now is?

(It also seems unclear how their interpretations of what is and isn't torture is actually wrong; at least you haven't argued it, only that his definition of "extreme pain" is without basis in the code. The two aren't the same thing, strictly. Are you agreeing that extreme pain is what counts, but that that insurance regulation simply doesn't define it? That sounds plausible, but it doesn't make the memo incompetent as a whole.

The other argument that looks plausible is that you're arguing that extreme pain isn't the right standard - but in that case the whole argument about its definition doesn't matter, and you ain't said why that's the wrong standard.

Are either of those arguments essentially yours in that post? If not, what exactly was being said, and how does it differ?)
11.29.2006 12:43pm
DavidBernstein (mail):
So let's see. A corporate client asks its attorney for advice regarding the extent to which its waste disposal practices are subject to EPA scrutiny. The attorney writes a memo concluding that the client is exempt from EPA regulation. The company then proceeds to dump pollutants in the local water supply. Some people think the attorney's advice was wrong, but others disagree. Some people even think that under the circumstances, the dumping of the pollutants was the right thing to do (use your imagination). We have no evdience that the attorney was doing anything but expressing his view of the merits of the issue as a legal matter. The attorney had no role in the dumping, other than advising that the EPA did not ban it. What did the attorney do wrong?
11.29.2006 12:44pm
o' connuh j.:
Legal advice now constitutes a war crime? Good one.
11.29.2006 12:45pm
Chumund:
Professor Bernstein,

I don't understand your reply. Perhaps they could refer this matter to his state bar, but why would that be their only valid action? As they put it, this may also be a matter for a prosecutor and a court. And why shouldn't they as concerned faculty members also take action within their own institution?

Again, it seems to me that they are clearly NOT just objecting to the merits of his legal views. They also suggest that his conduct facilitated torture and may be criminal, and I don't see why they should limit their response to a petition to a state bar.
11.29.2006 12:46pm
o' connuh j.:
David, apparently, the attorney in your example would be guilty of the regulatory offence himself. LOL!
11.29.2006 12:47pm
asdfjkl; (mail):
I understood bad faith to be irrelevant. Some of the Enron accountants argued that their books were kept correctly. I still don't think they should be hired to teach accounting.

In this case, error is in the eye of the beholder.
11.29.2006 12:50pm
DavidBernstein (mail):
Chu, because they might provide them with some actual objective evidence that Delahunty did something wrong, rather than mere accusations that seem to be based on a particular ideological and moral perspective that they take as an objective normative baseline, but neither Delahunty nor anyone else has an obligation to adhere to.
11.29.2006 12:51pm
Oren Elrad (mail):

. . . because he helped write a legal memo, the conclusions of which the authors disagree with.


You might was well say that Enron executives were imprisoned for writing financial reports, the conclusions of which the courts disagreed with. A financial report or a legal memo is not just an instrument of personal opinion but a public document stating the conclusions of a company/gov't official. I can have whatever opinion I want on whether my company is profitable but no one will defend my ability to state the opinion on my financial disclosures unless I stick to what are generally approved accounting methods.

As Peter and OK pointed out earlier, the legal reasoning behind the memos is atrocious and ought to be recognized as little more than a result-oriented expedient designed to allow the administration to proceed with policies that are, to the letter, violations of US Statute, to wit, The War Crimes Act. As an employee of the US government, he had an obligation to accurately express the state of the law at the time to the best of his ability. Either he failed his obligation or his abilities are astoundingly deficient.
11.29.2006 12:57pm
AF:
Prof. Bernstein, if an attorney advised his client that the EPA was unconstitutional, and the client therefore ignored the EPA and polluted, those who think the EPA is clearly constitutional are entitled to criticize the attorney and oppose his hiring as a law professor. Their criticism would not be rendered illegitimate by the fact that "others disagree."
11.29.2006 12:57pm
asdfjkl; (mail):
DB:

So let's see. A corporate client asks its attorney for advice regarding the extent to which its waste disposal practices are subject to EPA scrutiny. The attorney writes a memo concluding that the client is exempt from EPA regulation. The company then proceeds to dump pollutants in the local water supply. Some people think the attorney's advice was wrong, but others disagree. Some people even think that under the circumstances, the dumping of the pollutants was the right thing to do (use your imagination). We have no evdience that the attorney was doing anything but expressing his view of the merits of the issue as a legal matter. The attorney had no role in the dumping, other than advising that the EPA did not ban it. What did the attorney do wrong?


As I understand Orin's argument, he would say that the attorney knew his analysis was wrong and did it because he knew it was what the client wanted to hear.

My argument is that he believed what he wrote, but he was so clearly wrong that he shouldn't be hired at an elite law school for lack of merit. You say that some people think he is right, but you can find people who believe anything, often on partisan grounds. It's up to Michigan to decide if it thinks the man's views are laughably wrong. If you took a poll of "the academy" I don't think 100% of professors would think he was wrong, but I think it would be well over 50%.

Maybe they are wrong and he is right. Still, if Michigan decides that he is incompetent and unworthy to teach at an elite law school because of his blatant mistake in a crucial situation, then that's up to Michigan. If you think he got it right, invite him to teach at your law school.

(I add that if the professors oppose him because they subjectively don't like his theory - if they don't want it to be right, then that's academic censorship and I deplore it. Honestly, I think that is what is happening, but I am merely explaining the plausible argument against him.)
11.29.2006 12:58pm
Mahan Atma (mail):
It appears to me there's bad faith by some of the torture memos' authors, but even if there isn't, what about a negligence standard? After all, the DOJ itself has repudiated the memo; that's how bad it was.

Shouldn't a medical school prefer not to hire doctors who commit gross negligence in the treatment of their patients?
11.29.2006 12:58pm
Chumund:
o'cunnuh, j.,

Again, I direct your attention to the "Justice Trial" at Nuremberg. This is not in fact a new idea.

Professor Bernstein,

Sorry, we cross-posted. But I'd like your comments on the Justice Trial as well, and how the actions of the defendants in those cases were distinguishable, if at all, from your sincere corporate attorney. Indeed, presumably the Nazi attorneys working in the Ministry of Justice were often sincere in their views about matters such as Hitler's powers and the legality of the actions that constituted the Holocaust, and they did indeed enjoy the agreement of many judges. So should that sincerity and agreement constitute an absolute defense?
11.29.2006 12:58pm
Mark Field (mail):

I don't know too much about Delahunty, but I'm a Boalt alum who won't send a penny to the school as long as they continue to employ John Yoo. To me, the AG opinions did not read like a disinterested analysis given to advise a client. Not even close. Instead, they were advocacy briefs designed to justify a client's desired course of action.


I'm very happy to read this -- I've taken the same view. I hope you went beyond this and sent Boalt a letter telling them why you refused to contribute. Interestingly, I never got a response.
11.29.2006 12:59pm
Steve:
The conversational disconnect here is that people who actually AGREE with the memorandum's legal analysis can scarcely comprehend the argument that it consists of shoddy arguments that could only be advanced in bad faith.
11.29.2006 1:00pm
Falafalafocus (mail):
I actually like the U of M objectors' stance on this one. Effectively, they are saying "in the area of torture, you are either with us, or against us." Very Bush-like of them. I'm sure that they are proud to be in such company.
11.29.2006 1:06pm
DavidBernstein (mail):
Sorry, checking out for the afternoon, the discussion will have to continue without me.
11.29.2006 1:06pm
Davide:
A corporate client asks its attorney for advice regarding the extent to which its waste disposal practices are subject to EPA scrutiny. The attorney writes a memo concluding that the client is exempt from EPA regulation. The company then proceeds to dump pollutants in the local water supply. What did the attorney do wrong?

An incompetent attorney will be liable for malpractice. If the lawyer's memo was negligently prepared, that is the "wrong" he committed. Whether he was sincere in his incompetence is irrelevant in the same way that an incompetent driver who "sincerely" drove through a red light will still be guilty of a traffic violation. Whether others, generically, agreed is irrelevant: the question is whether the advice was reasonable, using the standard of a skilled legal professional.

The issue of "sincerity" is more relevant if one believes that the lawyer gave the advice to aid and abet a crime. Lawyers do this and have been found liable for such conduct in the past. Is there a reason to believe your EPA advising lawyer wanted to help your client dump in the river? Obviously, extraordinary evidence would be needed here.

In the case of Delahunty, however, the standards should be even higher. Mr. Delahunty doesn't wish to be merely a lawyer: he wishes to a law professor. He wishes to teach law. It seems eminently reasonable to expect that faculty not merely be competent, but eminent (or at least superior).

That raises the question of whether Mr. Delahunty's advice can be seen as superior. I have no basis on which to comment but the question is a very fair one. I also think that, given tenure, the assumption should be against Mr. Delahunty being assumed to be a superior legal scholar -- he should prove it to faculty in his chosen field.

That's no excuse to play political favorites. One would hope law faculty wouldn't condemn someone for arguing a position contrary to personal preference if the position is a strong one. But what I'm hearing is that no one thinks that Delahunty's position was a strong one -- and that includes conservatives as well.
11.29.2006 1:07pm
AF:
Steve, you're right, but it's also true that the people who presumably agree with the memo aren't prepared to defend it directly. Instead, they defend it on the basis of "academic freedom," or on the basis of the fact that "others disagree" with the criticisms of it. The debate would be much simpler if it were boiled down to this question: Is the torture memo an ethical and competent piece of legal work?
11.29.2006 1:08pm
Oren Elrad (mail):

I understood bad faith to be irrelevant. Some of the Enron accountants argued that their books were kept correctly. I still don't think they should be hired to teach accounting.

In this case, error is in the eye of the beholder.


While there is a wide variety of methods that are accepted in accountancy (and a substantial gray area) it is clear that the Enron books deviated so far as to establish that no competent accountant could possibly certify them as accurate.


So let's see. A corporate client asks its attorney for advice regarding the extent to which its waste disposal practices are subject to EPA scrutiny. The attorney writes a memo concluding that the client is exempt from EPA regulation. . . The attorney had no role in the dumping, other than advising that the EPA did not ban it. What did the attorney do wrong?


This hinges on whether or not the lawyer's reading of the relevant law was, in some sense, reasonable. If the lawyer came to a conclusion that is simply indefensible as a matter of law, I would say that his 'crime' was misrepresenting the state of the law.

Again, as in accounting, there is some gray area in which we can disagree with his finding but still agree that his legal reasoning is not totally deficient. On the other hand, it is also possible that his legal reasoning doesn't even meet this rather loose test and he is indeed guilty of doing something wrong (whether in bad faith or ignorance).

My point, DB, is that lawyers don't get an automatic pass for espousing any legal opinion whatsoever.
11.29.2006 1:12pm
Oren Elrad (mail):
Well, you guys covered all my points while I was still writing them. While reading up on this stuff, I found this great Posner quote:


Perhaps in the fullness of time the growing of marijuana plants, the "manipulation" of financial markets, the bribery of foreign government officials, the facilitating of the suicide by the terminally ill, and the violation of arcane regulations governing the financing of political campaigns will come to be no more appropriate objects of criminal punishment than "dishonoring the race." Perhaps not; but [the story of the German judges] can in any event help us to see that judges should not be eager enlisters in popular movements of the day, or allow themselves to become so immersed in a professional culture that they are oblivious to the human consequences of their decisions.
11.29.2006 1:15pm
Chumund:
Davide,

And I might note that I think war crimes and crimes against humanity, particularly when we are talking about lawyers working within the government, may constitute a special category.

For example, here is a little bit from the Justice Trial:

"By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility. He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles."

The basic problem is that obviously people working within government can sometimes make laws to suit themselves, and those laws can be used to carry out crimes against humanity. And at least arguably that is what Delahunty, Yoo, Addington, and others were helping to do: they argued that at least within certain areas, the President could make his own laws, and that only those laws should bind the Executive.

Of course, one may or may not agree that officers of the United States consequently committed torture and other crimes. But the basic idea of holding government lawyers responsible for creating the legal conditions in which such crimes are committed is not in fact unprecedented.
11.29.2006 1:17pm
J. F. Thomas (mail):
Legal advice now constitutes a war crime? Good one.

Of course it does. Especially when your advice consciously ignores relevant treaties and laws, defines torture in direct contradiction of all accepted modern definitions of torture and then neglects to mention that even simply not torturing detainess is not good enough. All our international agreements and domestic laws require that we go beyond not torturing detainees. Regardless of whether or not waterboarding is torture, it is still clearly prohibited. As a government attorney you are representing the United States, not the president. It is your duty to tell the president that what he proposes is illegal.

It's called conspiracy. Rumsfeld may not have hid detainees in Iraq from the ICRC, but by ordering it, he still committed a war crime under Geneva.
11.29.2006 1:31pm
Federal Dog:
"Their claim is that Delahunty let politics cloud his legal judgment and wrote a disingenuous memo to provide legal cover for torture."

O.K., but as has been pointed out, very serious and respectable legal minds have not found merit in that claim. His argument thus seems well within the ethical bounds of argumentation in an objective memorandum of law.

I cannot even imagine being held personally responsible for every piece of law that I am required to explain to a client. All I can do is responsibly apply known law to known facts and predict as best I can the outcome of any legal dispute based on them.
11.29.2006 1:39pm
Monkberrymoon (mail):
Sigivald,

I had simply assumed that Prof Friedman gave an inaccurate link since that blog post couldn't have possibly been used to support his view that the entire 50-page memo was "atrocious".
11.29.2006 1:43pm
Steve H (mail):
To me, it clearly comes down to the attorney's mental state, i.e., whether he was honestly attempting to give his unvarnished analysis of the legal requirements, or whether he was merely giving his client something in writing that the client could use as an excuse to do what the client already wanted. (I realize there are many shades of gray between these extremes.) After reading the memos, I can't believe anyone doubts that Yoo and Delahunty were doing the latter, but I realize that others disagree with me.

But I don't see how academic freedom applies. If Delahunty and Yoo had merely written a law review article about how they thought the law should be interpreted or applied, that would raise an academic freedom issue. Here, the issue is the actual conduct as employees of the United States. By writing the memos, Delahunty and Yoo were taking affirmative steps to aid and abet certain conduct. Are they allowed a free pass for this simply because they are lawyers?
11.29.2006 1:43pm
J. F. Thomas (mail):
I cannot even imagine being held personally responsible for every piece of law that I am required to explain to a client. All I can do is responsibly apply known law to known facts and predict as best I can the outcome of any legal dispute based on them.

Well, we'll assume you have never told a client the constitution and the Geneva Conventions don't apply to them, that torture as it is universally defined by civilized people really isn't torture at all, and that the military's system for dealing with people captured on the battlefield, whether or not they are combatants, that was developed over sixty years in direct response to the kind of flawed system you are advocating a return to, is completely worthless, and is in fact a threat to national security.
11.29.2006 2:06pm
MnZ (mail):
But in the real world, professors like Juan Cole are, in fact, opposed on the basis of ideology. There's no double standard in opposing Delahunty while believing that it would be a better world if there were no ideological test applied in either direction.

Like many accusations of hypocrisy, your argument is nothing more than a call for the other side to unilaterally disarm.


OK...so who should disarm first - the Left or the Right? I should point out that some people on both sides believe in ideological tests, so they would oppose any disarmament.

Finally, Juan Cole had a sizable minority opposition within the Yale the departments considering his appointment. It is questionable how much of this was due to ideology rather than professional disagreements or personal dislike.
11.29.2006 2:14pm
Federal Dog:
"Well, we'll assume you have never told a client the constitution and the Geneva Conventions don't apply to them, that torture as it is universally defined by civilized people really isn't torture at all, and that the military's system for dealing with people captured on the battlefield, whether or not they are combatants, that was developed over sixty years in direct response to the kind of flawed system you are advocating a return to, is completely worthless, and is in fact a threat to national security."


Thanks for the assumption. Sheesh.
11.29.2006 2:16pm
SP:
You are forgetting that the only reason Cole was even close to getting the job was due to his ideology. It was the fact that it caused such controversy that led to scrutiny over his actual work, which turns out to be quite thin.
11.29.2006 2:16pm
Steve:
SP, that's a pretty thinly-sourced statement, particularly given the conventional wisdom in some quarters that Departments of Middle Eastern Studies are all hotbeds of anti-Semitism. Not sure why Yale would take a particular interest in Prof. Cole when they could have their pick of hundreds of other haters of America and Israel, but maybe you could provide a further explanation.
11.29.2006 2:21pm
jgshapiro (mail):

Prof. Bernstein, if an attorney advised his client that the EPA was unconstitutional, and the client therefore ignored the EPA and polluted, those who think the EPA is clearly constitutional are entitled to criticize the attorney and oppose his hiring as a law professor. Their criticism would not be rendered illegitimate by the fact that "others disagree."

If the "others" were 3 justices of the Supreme Court (plus the Chief Justice, who agreed in a lower court opinion), the criticism would be silly on its face.

Turn the Hamdan result around and look at the issue again. If the Court had come down 4-4 or 5-3 the other way, would your conclusion about Delahunty be different? After all, his views would have been the law. If so, the only difference between him being a crackpot or an incompetent and having issued a controversial opinion was Justice Kennedy's vote.
11.29.2006 2:24pm
Daniel Chapman (mail):
Opponents of the "torture memos" would be more persuasive if they stopped reverting to the exaggeration that Geneva applies to everyone automatically. It doesn't. It was never meant to. If you're talking about CIL, say so, but that's an entirely different argument since portions of Geneva (Protocol II) are not considered CIL.
11.29.2006 2:27pm
Genob (mail):
"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."

Rather incredible that a divided Supreme Court decision can suddenly render a reasonable legal opinion as bordering on criminal conspiracy in some peoples' minds.

So if the Supreme Court had one more vote that happened to support the Delahunty view, should we consider all those who disagree as traitors and participants in a criminal conspiracy to promote terrorism? Surely their differing legal view would suddenly have no reasonable basis and there would be no other explanation than a desire to aid and abet terrorists...

If questioning of or disagreement with precedent (even very recent Supreme Court precedent) disqualified one from teaching at law school, it seems to me there would be very little to learn at law school.
11.29.2006 2:41pm
J. F. Thomas (mail):
Turn the Hamdan result around and look at the issue again. If the Court had come down 4-4 or 5-3 the other way, would your conclusion about Delahunty be different? After all, his views would have been the law. If so, the only difference between him being a crackpot or an incompetent and having issued a controversial opinion was Justice Kennedy's vote.

Remember the close vote in Hamdan turned on the standing issue, only one justice (Thomas) actually came out and outright supported the president on the Geneva issues. So to say that Hamdan was close on the Geneva issues is misleading at best.
11.29.2006 2:46pm
Ken Arromdee:
I wonder how many of those people who oppose this hiring also opposed the hiring of that guy who wanted to teach 9/11 conspiracy theories in his Islam class.

9/11 conspiracy theories are extremist positions; for instance, it would be ludicrous for 4 Supreme Court justices to agree with them. These theories are not similarly extreme.
11.29.2006 2:46pm
J. F. Thomas (mail):
Opponents of the "torture memos" would be more persuasive if they stopped reverting to the exaggeration that Geneva applies to everyone automatically.

Actually, once a conflict falls under Geneva, it applies to everyone caught up in that conflict, regardless of their status. The threshold is whether the conflict falls under Geneva, then you have decide what rights under Geneva apply. But everybody has rights under a conflict covered by Geneva (which at a minimum includes basic due-process rights and a right to be treated humanely in a manner that is much less harsh than "torture", no matter how you define it), uniformed military personnel and innocent, non-combatant civilians just have the highest degree of protection.
11.29.2006 2:54pm
J. F. Thomas (mail):
And don't forget, even the administration disassociated themselves from the torture memo, claiming it never became the basis for government policy.
11.29.2006 2:56pm
Oren Elrad (mail):
You are right, there are specific tests written into the Geneva conventions that determine applicability. Specifically, I submit the text of the Fourth Geneva Convention, Article III (my emphasis)


(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Anyone that was allegedly tortured clearly meets the definition in paragraph (1) as it's fairly difficult to torture someone that is not yet been detained.
11.29.2006 2:59pm
Anderson (mail) (www):
Wow, great thread. Glad to see you brought up Nuremberg, Chumund.
11.29.2006 3:00pm
Byomtov (mail):
The attorney had no role in the dumping, other than advising that the EPA did not ban it. What did the attorney do wrong?

No role? The attorney participated in the dumping just as much as the guys who ordered it and did it. Without the memo, there would be no dumping; with it there is. And the ttorney "had no role?"

Any attorney with half a brain in that situation would know that legal approval meant the dumping would proceed. If the advice was egregiously bad, plainly written to provide cover for what the company wanted to do anyway, the attorney shares in the guilt.
11.29.2006 3:09pm
Anderson (mail) (www):
I forgot to add that, IMHO, it's become clear why it was so urgent to pass the Military Commissions Act before the election, while Congress was safely Republican:

namely, to secure the provisions immunizing Delahunty, Yoo, Bybee, Haynes, and other worthies from prosecution under U.S. law.

Angry law students? Delahunty should be *happy* that's all he has to worry about. And I'd watch the overseas travel, if I were he.
11.29.2006 3:14pm
Gabriel Malor (mail):
Oren Elrad, conspicuously absent from your Geneva Convention quotation is this language that precedes what you provided. I have highlighted a relevant portion.


Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:


Then I would direct you to Article 27. Only "protected persons" get the protections you claim.
11.29.2006 3:15pm
A.S.:
Hey, another Nazi reference!

That makes FOUR on two threads. Good job.
11.29.2006 3:22pm
Mark Field (mail):

Finally, Juan Cole had a sizable minority opposition within the Yale the departments considering his appointment.


That wouldn't distinguish Cole's case from Delahunty's. The letter here was signed by 9 members of the Minn. law faculty.
11.29.2006 3:22pm
Chumund:
First, I just want to underscore that J.F. Thomas is exactly right--the particular views in question (as expressed in the Delahunty-Yoo memo) were not endorsed by Alito (nor, of course, Roberts). But I note that Scalia did join Thomas's opinion in its entirety (unlike Alito).

Second, I also want to underscore that when it comes to the war crimes issue, it doesn't actually matter. The Nazi attorneys had plenty of Nazi judges on their side, and they charged as well.

Once again, though, I want to make it clear that I am not necessarily endorsing this view on the merits. I just think it is important to understand that the applicable precedents suggest that lawyers can indeed commit war crimes and crimes against humanity by giving legal advice, and that the approval of judges does not constitute an absolute defense.
11.29.2006 3:24pm
Chumund:
A.S.,

The thing is, when someone is suggesting that government lawyers may, through their official conduct, have committed war crimes or crimes against humanity, it makes little sense to not discuss the Justice Trial at Nuremberg as an applicable precedent.
11.29.2006 3:30pm
Oren Elrad (mail):
And how exactly does that highlighted part belie my claim? The conflict between the US and Al Qaeda is manifestly not of an international character as one of the participants is manifestly not a nation.

I'm using the plainly held definition of international (as given by MW): "of, relating to, or affecting two or more nations". I'm sure you have some tortuous (hmm, that's a bad pun) definition that will allow you to rationalize sneaking out of compliance with Article III. I'm sure at some level of legalese, you might indeed succeed.
11.29.2006 3:36pm
Crunchy Frog:
Anderson, et al - Does bringing up Nuremburg constitute a Godwin's Law violation? I noticed a previous mention of Hitler passed without comment.
11.29.2006 3:38pm
Observer (mail):
I haven't read the Yoo/Delahunty memos and so you can take this with a grain of salt. For what it's worth, I think the Court got it 180 degrees wrong when it held the Geneva conventions apply to captured AQ combatants, and if folks here are arguing that Delahunty ought to be pilloried for writing a memo to that effect, then you're 180 degrees wrong, too.
11.29.2006 3:41pm
Oren Elrad (mail):
Observer, do you have any actual textual, statutory or other reason to assert that the Geneva Conventions do not apply? I only say this because you are at variance with the text of the conventions and SCOTUS.
11.29.2006 3:43pm
te:
Weren't a number of Nazi lawyers prosecuted for their work in providing "legal advice"?

I'm not suggesting that Delahunty is a war criminal (time will tell on that) but the idea that offering "advice" to a client exempts one's conduct from review or censure is puzzling.
11.29.2006 3:51pm
Steve:
It's simply not true that 4 Justices agreed with the memo. Not even close.
11.29.2006 3:51pm
im_fat (mail):

You might was well say that Enron executives were imprisoned for writing financial reports, the conclusions of which the courts disagreed with. A financial report or a legal memo is not just an instrument of personal opinion but a public document stating the conclusions of a company/gov't official. I can have whatever opinion I want on whether my company is profitable but no one will defend my ability to state the opinion on my financial disclosures unless I stick to what are generally approved accounting methods.


Oren,

Sorry but I can't see how this is even remotely a good example. If you can find an example of how Delahunty profited from his analysis then maybe using Enron would be a better example. Also, as you report, it is not the lawyers in Enron who are doing time. Delahunty gave his interpretation, he did not use that interpretation for gain.
11.29.2006 3:52pm
Chumund:
Crunchy Frog,

My sense is that Godwin's Law ("As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one") does not cover references to matters involving the Nazis which arise naturally from the substance of the conversation. Obviously, that can be a matter of some debate, but here I do think that the Justice Trial is highly relevant to the issues framed by the letter. Or to put it another way, it was the letter writers who raised the war crimes issue, and so it is not merely the length of the conversation that raised the probability of a Nazi-related comparison.
11.29.2006 3:55pm
MnZ (mail):
That wouldn't distinguish Cole's case from Delahunty's. The letter here was signed by 9 members of the Minn. law faculty.


Actually, it would. The percentage of Yale professors that opposed Cole was larger than the percentage of Minnesota professors that signed the Delahunty letter. Moreover, faculty consensus is much more important when offering permanent, tenured positions (Cole) than visiting positions (Delahunty).
11.29.2006 4:06pm
A.S.:
Of course Godwin's Law is met - as I posted on the last thread, Godwin's Law was met within an hour of the initial post (the "Law" is that someone will evoke Nazis; the corrolary is that this side "loses" the argument) . As Wikipedia says, it doesn't matter if someone or other considers the reference to be "apt" - after all, the side that brings up Nazis will usually consider the comparison "apt".

As for myself, I usually think of the Nazi comparison as a barometer of the weakness of one side's argument - that is, the weaker your side's argument, the quicker your side will be to bring up Nazis. I think that's been shown pretty well here, with the anti-Delahunty side comparing him to a Nazi within an hour, while simultaneously having an extraordinarily weak case against his hiring.
11.29.2006 4:34pm
J. F. Thomas (mail):
As for myself, I usually think of the Nazi comparison as a barometer of the weakness of one side's argument - that is, the weaker your side's argument, the quicker your side will be to bring up Nazis. I think that's been shown pretty well here, with the anti-Delahunty side comparing him to a Nazi within an hour, while simultaneously having an extraordinarily weak case against his hiring.

Personally, I think retreating behind Godwin's Law, especially when discussing some of the more extreme acts of the Bush administration, shows cowardice on the part of those who defend this administration. Rather than explain how torturing, detaining without access to lawyers, charges, habeas rights, based on the say-so of the president, whose word is final and whose basis for the decision is so secret the court's can't even review it, even when everyone concerned admits it was mistaken, isn't like the Nazis, you immediately say, "Godwin's Law, you can't mention the Nazis".

Well it's high time we mentioned the Nazis, because other than the sheer volume of cases, I don't see a whole lot of difference between what the Nazis were doing in 1934 and some of the things the president claims he has a right to do.
11.29.2006 4:42pm
Mark Field (mail):

Actually, it would. The percentage of Yale professors that opposed Cole was larger than the percentage of Minnesota professors that signed the Delahunty letter.


I'll take your word on the numbers, since I have no idea. However, your original post didn't say this. It only said that "Juan Cole had a sizable minority opposition" (emphasis added). I'd consider 9 members of the Minn. law faculty to be a "sizable minority".
11.29.2006 4:44pm
Chumund:
A.S.,

Wikipedia says:

"Godwin's Law does not dispute whether, in a particular instance, a reference or comparison to Hitler or the Nazis might be apt. It is precisely because such a reference or comparison may sometimes be appropriate, Godwin argues in his book, Cyber Rights: Defending Free Speech in the Digital Age, that overuse of the Hitler/Nazi comparison should be avoided, as it robs the valid comparisons of their impact."

So, it seems Godwin is saying overuse of Nazi comparisons should be avoided, but valid comparisons are legitimate. Indeed, if the rule was that any reference to the Nazis, no matter how appropriate in context, meant one automatically "loses", or automatically has a "weak" argument, it would just be a dumb rule.

And again, if the topic is lawyers committing war crimes, it would be just plain odd not to discuss the Justice Trial at Nuremberg. So, any rule which prevents us from discussing a plainly relevant precedent is just a dumb rule.
11.29.2006 4:51pm
Chumund:
By the way, there is a Slate column today by Diane McWhorter addressing this very issue.
11.29.2006 4:54pm
Anderson (mail) (www):
The trouble with A.S.'s notion of Godwin's Law is that, if some country's government were rounding up Jews and deporting them to death camps, comparison to the Nazis would be ruled out of bounds.

That's ridiculous.

The Judges' Trial is brought up for the legal precedent: giving patently bad legal advice to facilitate your government's criminal actions *is* potentially a crime.
11.29.2006 4:56pm
jgshapiro (mail):
There has to be an exception to Godwin's law when you are discussing (alleged) war crimes, or the MIlitary Commissions Act (which seeks to immunize govt. officials from such charges).

The only widely known war crimes trial is Nuremburg, and that exclusively concerned the Nazis. Therefore, if Godwin's Law precludes reference to Nuremburg, or the events that were the subject of Nuremburg, how are people to evaluate claims of war crimes or defenses to such claims?
11.29.2006 5:00pm
MikeR:
Re: Oren Elrad's post about the manifest meaning of international:

International has two broadly accepted meanings (1) relating to two or more nations, and (2) extending across national boundaries. It is not at all manifest which definition applies in the Geneval conventions.

I think the first definition is the correct one, but that doesn't settle the issue. One still has to analyze whether a conflict is of a international character, and I don't think that this analysis is quite as simple as some others appear to think it is.

The ideological framework of the Geneva Conventions was conceived in a time where there were comparatively few independent nation-states, most of which were European. The idea of a client nation attacking across international boundaries without support or acquiescence from the ruling nation was, I would think, not seriously considered by the drafters of the Geneva conventions. Still less so would be the idea of an international (in the second sense) organization using violence on a wide scale without regard for national sovereignty--there simply weren't any non-nation players on the stage. National sovereignty is one of the foundational concepts of the modern international system, and implicit in the concept of national sovereignty is the idea of territorial control. Therefore, it may well be the case that any international (in the second sense) conflict would be considered to be international (in the first sense)--nations would be presumed to control their territories at least to the extent of preventing acts of war from them. If this line of reasoning has any merit, the current conflict between the U.S. and its allies and al Qaeda may fairly be said to be of an international character in the sense that is meant in the Geneva convention.
11.29.2006 5:00pm
Oren Elrad (mail):

Oren,

Sorry but I can't see how this is even remotely a good example. If you can find an example of how Delahunty profited from his analysis then maybe using Enron would be a better example. Also, as you report, it is not the lawyers in Enron who are doing time. Delahunty gave his interpretation, he did not use that interpretation for gain.


I don't exactly see how personal gain figures into the calculation here. He failed in his duty to accurately describe the law as relevant to his boss' inquiry. Furthermore, it's clear that this administration values loyalty and deference more than clearheaded thoughtful advice (anyone seen Gen. Shinseki around lately?) and toeing the administration line was clearly the most profitable career choice.

As far as the Enron analogy (which is indeed getting a bit tired) I don't see why Enron's lawyers are relevant - the abuses where of a strictly financial nature, oversight of which ought to lie with the auditors and accountants. Enron's lawyers are not responsible for vetting the quarterly statements to make sure acceptable methods have been used.

Similarly, the OLC has the duty I mentioned earlier: to accurately portray the law (or at least to provide an interpretation that is in some sense reasonable). Put succinctly, the OLC is to the president's legal policy what an accountant is to a company's financial statements.
11.29.2006 5:12pm
jgshapiro (mail):

Remember the close vote in Hamdan turned on the standing issue, only one justice (Thomas) actually came out and outright supported the president on the Geneva issues. So to say that Hamdan was close on the Geneva issues is misleading at best.

Actually your post is quite misleading.

First of all, Roberts reached the Geneva issue in the court below (as did Raymond Randolph, one of the other two judges on that panel). So you know that at least two of the nine justices agreed with Delahunty's position, as well as another senior judge on the DC Circuit. That alone (I submit even one vote on either court would do the trick) should insulate Delahunty's position from being characterized as silly.

Second, the fact that two of the justices did not reach the Geneva convention issue because of standing hardly means they agreed with the majority's conclusion. Justices typically don't reach the merits if they find the parties lack standing. Nevertheless, would you like to bet that neither Scalia nor Alito would have agreed on the Geneva convention point? I'll take the opposite position: at least one, if not both of them agreed with Thomas and Roberts, but didn't state their agreement because it was dicta given their standing votes. I'm not sure how we'd resolve the bet, but I'm 99% certain I'd win if we could.

Taking the broader point, I wonder how many people on this thread would be willing to say that any position not formally endorsed by at least 2 justices can be disregarded as frivolous, incompetent, etc.? That is an astoundingly high standard for competence. Many good lawyers take positions that are unanimously repudiated by the Court without facing campaigns to drum them out of the bar or the legal academy.
11.29.2006 5:17pm
anon252 (mail):
The Supreme Court in Hamdan did not say that the GC applies to Al Qaeda, and the U.S. is bound by the GC. The Court said that Congress manifested an intent in the UCMJ to bind the U.S. to the G.C. in this sort of conflict, even if the G.C. doesn't apply. To a layperson, this is a technical difference, but if we are speaking as attorneys, it's quite obvious that the Court's decision was based on an arguable interpretation of the UCMJ, not to mention whether the UCMJ was implicitly modified by the Authorization for the Use of Force passed after 9/11.
11.29.2006 5:19pm
anon252 (mail):
Another and related point people are missing here is that "international law" only binds the U.S. if U.S. law says it does. The Court in Hamdan looked to a provision of a treaty that the U.S. never even signed to determine the U.S.'s obligations under the UCMJ. The Court's opinion in that regard is not ridiculous, but it's hardly obvious. Moreover, who says that international treaties, much less customary international law, and for that matter statutes like the UCMJ, always trump the President's war powers under Article I? Many conservatives have been arguing for a very broad interpretation of Article I completely outside the context of 9/11, and way before then. I disagree but I wouldn't assume bad faith on the part of someone who applied that principle.
11.29.2006 5:24pm
Oren Elrad (mail):

Another and related point people are missing here is that "international law" only binds the U.S. if U.S. law says it does.


Ah yes, you must be referring to the US Constitution, Article VI, paragraph II:


This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


Since the Geneva Conventions and the Convention Against Torture were both ratified under the authority of the US Constitution it stands to reason that they are both now Supreme Law of the Land.
11.29.2006 5:42pm
Oren Elrad (mail):

Moreover, who says that international treaties, much less customary international law, and for that matter statutes like the UCMJ, always trump the President's war powers under Article I?


Treaties certainly do, as is evident from the plain language of Article VI, Paragraph II. Statutes are a different matter altogether and one that has little relevance here, considering the controlling language wrt treaties.
11.29.2006 5:44pm
Oren Elrad (mail):
Hmm, I should have read Reid v. Covert, (354 U.S. 1 1957) since apparently the word notwithstanding doesn't mean what I think it means. Well, at least I found my own error before someone else shredded me for it. :-)
11.29.2006 5:47pm
Steve H (mail):

Of course Godwin's Law is met - as I posted on the last thread, Godwin's Law was met within an hour of the initial post (the "Law" is that someone will evoke Nazis; the corrolary is that this side "loses" the argument) . As Wikipedia says, it doesn't matter if someone or other considers the reference to be "apt" - after all, the side that brings up Nazis will usually consider the comparison "apt".

As for myself, I usually think of the Nazi comparison as a barometer of the weakness of one side's argument - that is, the weaker your side's argument, the quicker your side will be to bring up Nazis. I think that's been shown pretty well here, with the anti-Delahunty side comparing him to a Nazi within an hour, while simultaneously having an extraordinarily weak case against his hiring.


A.S., I assume you are referring to my post at 12:08. Before playing cute word games with Godwin's "Law," could you please explain how the powers claimed by the President or his administration are significantly less than those powers claimed by Hitler (other than the fact that the President's term is limited)? As I understand it, the President and his administration have claimed that if the President says that he is acting for national security, he is not bound by federal statutes or even by the Bill of Rights. I'm pretty sure Yoo has advocated the same thing.

(Please correct me if my understanding of the administration position is wrong.)

If the President is not subject to federal statute or the Bill of Rights, what legal limits are there on his power? And if there are no legal limits on that power, then how are his powers substantially less than Hitler's?

(Note that I didn't say that his actions were like Hitler's, only the extent of the powers he claims.)

In my view, the fact that the President is claiming powers very similar to those Hitler claimed is not only highly relevant, but in fact SHOULD be the first thing mentioned whenever these issues come up.
11.29.2006 5:57pm
MnZ (mail):
It only said that "Juan Cole had a sizable minority opposition" (emphasis added). I'd consider 9 members of the Minn. law faculty to be a "sizable minority".

Based on the information on their website, Minnesota's law school appears to have over 60 professors. Thus, nine professors represent less than 15 percent of the total faculty. According to The Nation, 7 out of 23 professors in the Yale history department voted against Cole with 3 more abstaining (which reportedly is equivalent to a vote against). In other words, over 40% opposed Cole.
11.29.2006 5:58pm
Daniel Chapman (mail):
Your 5:42 post doesn't say much, Oren... his point was that we have to ACCEPT the treaty under the Constitution before it can be binding. He wasn't very clear, but I assumed he meant "international law" to include "laws" that are NOT ratified under the Constitution.

Also, not all parts of "the Geneva Conventions" have been ratified, so the other parts are NOT the Law of the Land.
11.29.2006 6:00pm
Oren Elrad (mail):
Steve H, even if you are right about the scope of power the president has claimed comparing that to Hitler AUTOMATICALLY invites comparison to what Hitler did. Saying that it doesn't won't help.

Consider a comparison to Abraham Lincoln instead. After all, honest Abe did secretly suspend Habeas Corpus, arrest most of the Maryland Legislature and disregarded the ruling of a sitting Chief Justice of the Supreme Court (possibly also had an arrest warrant drawn for that justice but thought better of it later). Bush has yet to cross the line of disregarding a Federal Court although he has endeavored through fairly shady means to prevent them from ruling on most of his most egregious abuses.

In short, comparisons to Hitler make you look crazy and discredit the rest of us that want to criticize the Yoo/Cheney/Abington conception of the presidency.
11.29.2006 6:09pm
J. F. Thomas (mail):
Anyway, this fixation on Geneva is avoids the main issue and is the great flaw in the torture memo (besides the absurd assertion that as long as we don't torture people we have met our obligations under international and U.S. law), and all you torture apologists who rush to defend these war criminals. We also have a War Crimes Act and the International Convention Against Torture, and Other Cruel Inhuman or Degrading Treatment or Punishment that must be adhered to (not to mention the UCMJ--shouldn't it apply to the president in his role as commander in chief?) regardless of whether Geneva applies.
11.29.2006 6:11pm
Oren Elrad (mail):

Your 5:42 post doesn't say much, Oren... his point was that we have to ACCEPT the treaty under the Constitution before it can be binding. He wasn't very clear, but I assumed he meant "international law" to include "laws" that are NOT ratified under the Constitution.

Also, not all parts of "the Geneva Conventions" have been ratified, so the other parts are NOT the Law of the Land.


I read anon542's comment as implying that treaties have no force without explicit statutory language putting them into force (e.g. UCMJ). At any rate, all the relevant treaties we've discussed in this thread have been duly ratified.
11.29.2006 6:15pm
MikeR:
Re Oren's 6:15 Post

There is a real issue in U.S. law as to whether treaties are self-executing. In some countries (Japan, for example), when a treaty has been ratified, it is enforceable in the courts like any other law. Historically, this has not been the case in the U.S., where a treaty confers an obligation on Congress or the president, but not, without more, a cause of action in the judicial system.
11.29.2006 6:23pm
Daniel Chapman (mail):
That's possible... I honestly didn't scroll back and re-read his post, just your excerpt.
11.29.2006 6:27pm
Anderson (mail) (www):
Historically, this has not been the case in the U.S., where a treaty confers an obligation on Congress or the president, but not, without more, a cause of action in the judicial system.

You're right AFAIK, but it's worth contemplating what kind of "obligation" can't be enforced by the courts.

OTOH, suppose we had a treaty with Slobovia to go to war on each other's behalf, and someone invaded Slobovia, and we didn't go to war? Could Slobovia (via its ambassador, say) sue in the U.S. courts to compel us to go to war?

So self-enforcing treaties aren't necessarily a good idea. Treaties rest upon the opprobrium of the other powers with whom we've contracted, then. If the U.S. is generally held to have dispensed with Geneva ... then what?
11.29.2006 6:43pm
Steve H (mail):
Oren,

Regarding "looking crazy," I agree that if I were walking down the street comparing Bush to Hitler, that would look crazy. But this is a forum where reasonably intelligent and thoughtful people deal with complex issues. I think different standards apply, and I think there is nothing wrong with making the analogy limited the way I have. (Once again, I would love for someone to explain to me how the analogy I have drawn is not accurate.)

I am troubled, moreover, by the notion that I should refrain from pointing out a hugely important fact on the ground that pointing it out will make me look crazy. My father, aunt, and grandparents were imprisoned by both Nazis and Communists and "aggressively interrogated" based on the governmental claims that such imprisonment and interrogation was necessary to protect the security of the state. Maybe if people weren't so afraid of looking crazy, more people in the general public would realize the legal implications of what our government is actually advocating regarding the breadth of executive power.

Regarding Lincoln, didn't Congress affirm the suspension of habeas corpus as soon as it could meet? At any rate, I don't have a real objection to the administration's actions in the days or weeks after 9/11, even if those actions may have illegally violated civil liberties. What frightens me is the administration's claim that they have the legal power to do so forever, as long as the President says it's necessary.
11.29.2006 6:43pm
im_fat (mail):

I don't exactly see how personal gain figures into the calculation here.

Here, if you mean with Delahunty, it does not figure in, in Enron it was the primary motive. I guess that is why I thought it was a bad example. In Enron it was easy to connect the dots, they did it for the money, what was Delahunty's motive? Second, Enron's accountants were clearly cooking the books and that is a fact. To make your example relevant, Delahunty would have had to go in and take his white out and pen new laws to fit his motive (which we haven't yet established). Delahunty clearly did not do this or anything near this.


As far as the Enron analogy (which is indeed getting a bit tired) I don't see why Enron's lawyers are relevant - the abuses where of a strictly financial nature, oversight of which ought to lie with the auditors and accountants. Enron's lawyers are not responsible for vetting the quarterly statements to make sure acceptable methods have been used.


Right, I could have said it's not the accountants at Enron who are doing the time, because they aren't either. I chose to say Lawyers because I figured they probably at some point gave some pretty damn bad advice and I haven't seen any of them go down either.


Put succinctly, the OLC is to the president's legal policy what an accountant is to a company's financial statements.

I don't have a problem with this statement, again this is why I think it is a bad example, becaues Delahunty didn't change the data to intentionaly misrepresent it for his own gain. Delahunty simply gave his opinion on the laws.

Anyway, I am not defending Delahunty's position on the laws I am simply saying that Enron was a bad example, which I still think it is.
11.29.2006 6:46pm
jgshapiro (mail):
Steve H:

Hitler probably also believed the sky was generally blue (you know, absent clouds). So you could begin any discussion about Bush by stating that Bush shares this view with Hitler, but it wouldn't shed any light on the discussion and would just inflame emotions. Hence, Godwin's law.

Lots of people believe that the executive power is expanded during wartime; whether that is correct or incorrect (and if corect, how far) is worth discussing, but bringing Hitler into the discussion brings to mind the evidentiary objection that something, while arguably probative, is too inflammatory to be admitted into evidence.

Yes, if Bush were advocating gassing people, territorial conquest or annexation, or genocide, the prejudicial value of the comparison would be outweighed by the probativeness of the analogy. But in a conversation about executive power, the comparison is so far afield it sounds like someone trying to shut down discussion through shock value alone.

I think that your use of Hitler comparisons are significantly different from debating the principles of Nuremburg in the context of discussing what are and are not war crimes. Nuremburg is the common framework upon which all such discussions take place. In contrast, Hitler is not the common framework upon which all discussions of executive power take place.

Of course, you can continue to bring up Hitler in every post about Bush, but you just lose a little bit more credibility each time you do.
11.29.2006 6:50pm
Daniel Chapman (mail):
I believe in the original usenet context, Godwin's Law was used as a moderator tool to know when to shut down a particular thread because it had outlived any usefulness.

If you've got to mention Nazis, it better be conclusive to the point where it will settle the debate... because it's pretty much over after that.

At SOME point, it might be possible to say "Hey! He's acting like Hitler!" and the analogy would be so apt that people are left with "Yeah... so what?" or "You're right... that's bad!" as the only possible responses. If that's the case, go ahead and violate Godwin's Law because the Nazi card has ended reasonable debate anyway.
11.29.2006 7:00pm
Oren Elrad (mail):

Regarding Lincoln, didn't Congress affirm the suspension of habeas corpus as soon as it could meet?


He suspended HC in April 1861. Congress refused to acquiesce his demand but he continued anyway until Congress relented and passed the Habeas Corpus Act in March 1863. In the intervening period, he had 18000 arrested although most were released in due time.
11.29.2006 7:00pm
Davide:
Steve H,

Your Hitler comments are pushing you dangerously toward the "incompetent" line of argumentation.

In your previous post, you asked:

could you please explain how the powers claimed by the President or his administration are significantly less than those powers claimed by Hitler (other than the fact that the President's term is limited)?

Hmm, where to begin? Hitler banned opposing political parties and other parties dissolved themselves. All labor unions were put under his parties' control and the autonomy of German state governments was abolished.

Bush did... none of this.

Hitler also used the military to push political opponents into resigning. His Nazis murdered military opponents (like Strasser).

Bush did .... none of this.

Then Hitler passed a law proclaiming the presidency dormant and transferred the role and powers of the head of state to Hitler as Führer und Reichskanzler (leader and chancellor). Thereby Hitler also became supreme commander of the military, which then swore their military oath not to the state or the constitution but to Hitler personally.

Bush did ... none of this.

Making these sort of comparisons is really a ridiculous sort of gesture. We know you don't like Bush, but please, try to stay grounded in something like reality, OK????
11.29.2006 7:37pm
Benjamin Davis (mail):
I think Oren's comment about his terrible family loss is the key in this discussion. I guess you have to have been oppressed by a state rather than feel certain that you will never be harassed by a state to have some sensitivity to the danger in what Delahunty did and why it is aiding and abetting war crimes (leaving aside other aspects of international law).

On the left and right thing, please understand that the international law here is broad consensus international law. Delahunty and Yoo out of ignorance put out wildly radical visions. That some Supreme Court members (is it one or is it two) agreed only tells you more about how poor the knowledge of the Supreme Court is of international law. Yes, I have the temerity to say that because it is appalling - appalling - what they write on many occasions. Even Steven's ducking of the characterization issue to just say "at a minimum CA 3 applies" leaves a great deal to be desired. But at least, he recognized as an old military person that there is a floor under which we can not go. No amount of legal flim flam changes that bedrock.

Delahunty's opinion did not agree there was such a bedrock and by that opinion he aided and abetted the going below those minimums to do torture, cruel and inhuman and degrading treatment. That is repugnant and a perfectly reasonable basis to object to him visiting on a faculty or teaching at St. Thomas for that matter. Just like Bybee's memo is a perfectly valid reason to object to him serving on the 9th Circuit.

Delahunty's views in his memos whether sincerely held, his accurate opinion of the law, supported by some Supreme Court justices or whatever is aiding and abetting torture and cruel inhuman and degrading treatment (war crimes).

The difficulty for the US is that the US never prosecutes high level civilian authority or military generals (well back to 1902 at least) for violations of international humanitarian law or international criminal law.

Objecting to Delahunty seems to me to be a citizen effort to press the United States to be in compliance with its international law obligations in a very serious area of international law. It says that this will not pass and we will do what we can with our very weak powers (we do not control the levers of the state) to block those who aid and abet torture cruel inhuman and degrading treatment.

It is law professors responding with the fire in the belly about international law that Justice Robert Jackson once called for in international lawyers in a speech to the American Society of International Law in 1945.

The professors who signed on to the letter object strenuously to Delahunty. When Delahunty spoke at the ASIL in 2005 I objected strenuously to him and also to Professor Jack Goldsmith for their enabling of war crimes. I still object and I still think that both of them should be prosecuted. I did an affidavit for the German court proceeding in support of the prosecution of the persons who have enabled war crimes over these past years - including Professor John Yoo.

I think that, in the absence of our ability to prosecute people who aid and abet war crimes in the US, a citizen's effort to force compliance with minimum standards is wise, refreshing in this repressive environment and a source of honor for Minnesota.

As to the legal analysis, the section pointed out in the original post, to wit:

"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."

is stupid. I mean it is so stupid it is appalling. It is like writing about contracts on a 1L exam and not mentioning consideration.

The Geneva Conventions are treaties between states (not US states but states like France, China and 192 others in case that is not clear). In fact they have now been signed by all states - every single one folks.

No non-governmental party (Al-Qaeda) in the world can be a party to the Geneva Conventions as they are conventions between ("guess what?") states. No individual person can be a party to the Geneva Conventions.

That reality does not mean that a state party can torture or treat with cruelty inhumanity and in a degrading manner people just because they can not be signators to the convention (i.e. Al Qaeda members last I looked are people). Is this too subtle a point? If it is, it shows a real deficit in the understanding of a basic aspect of international law.

As to the Taliban, the analysis of the memo flies in the face of 50 odd years of US practice and what was enshrined in the Uniform Code of Military Justice. As I remember, the shell game of the memo was that the Taliban were subject to Geneva but lost that POW status as determined by the President as the "competent authority" because of violation of GCIII 4 a 2 requirements. This is the kind of argument the North Vietnamese used to argue why Senator John McCain was not entitled to POW status. It was bogus then and it is bogus now.

Please understand that the informal arrangement in government on treaties as described in 2005 by Reagan's Legal Adviser was that the Legal Adviser at State had the lead role to advise the President on international law, not the OLC. The books - to put it more bluntly - were over in State not at OLC. And at this key juncture, State's eloquent analysis by William Taft IV was that the Taliban were covered by the Geneva Conventions.

The use of the OLC to give an international law opinion (and other memos) is such a thinly veiled attempt to get the answer desired. The cutting out of military lawyers in that process is further evidence of the manipulation of law (some call it torturing of law) that was going on.

The amenability of Delahunty to provide a compliant opinion notwithstanding his ignorance (or maybe I should ascribe that to him and Yoo) is to his eternal shame. And he has to live with it.

As to civil servants, please, my father was in the foreign service for 35 years. Doing something to please the new political appointees is nothing new.

Give me a break you folks. This stuff is not left vs. right at all. It is right vs. right - at least in the sense of left and right that one sees outside the United States where a much broader diversity of opinions occurred. Right does not mean you have to be an idiot. Same with being left.

I am so tired of the apologists for all this horrible stuff going on. For the torture, for the starting of this unspeakable horror in Iraq.

And of course as if it needs to be said, Al Qaeda members have0 and can commit war crimes and should be prosecuted for that too. I am not a member of that organization. I am a citizen of the United States and I and all of us can do our part to make our government not do war crimes and prosecute those high level civilian authority and military generals who are willing to do those things.

Keep our honor clean.

Best,
Ben



Best,
Ben
11.29.2006 9:24pm
Woodstock (mail) (www):
I completely agree with the position of the protest letter. If I ran a law school, I would not want to have someone on my faculty who so incompetently interpreted international law and the U.S. Constitution either. It is not only about disagreeing with the result of his legal advice. It is about the incompetency of his legal advice. Competency is fair game.
11.29.2006 9:33pm
anon252 (mail):
I've never understood why people get so wound up about, e.g., whether the Guantanomo detainees will get habeas, full due process, etc., but not about the thousands of individuals killed without any due process at all in war. How many detainees were tortured, by any definition, by American forces? How many civilian Afghans and Iraqis have died at the hands of U.S. forces? I'm not saying that this makes U.S. actions in Those countries wrong. I'm saying that this focus on due process and physical coercion of and for detainees in a world where the president routinely orders the deaths of hundreds, and could easily get us into a war in which millions are killed, is the worst sort of intellectual fetishism. A Taliban fighter, who could have been killed without any recourse a minute earlier, without anyone protesting, is captured by U.S. forces and now doesn't get access to federal courts and THAT raises everyone's hackles? Please.
11.29.2006 9:59pm
R:
On a slightly side note, I wonder if Eugene ever got any professional flak for his posts that advocated torture under certain circumstances. At the time I remember thinking, well that sucks. There goes any chance Eugene will ever get to serve on the Supreme Court.
11.29.2006 10:34pm
Woodstock (mail) (www):
What's your point anon252?

Maybe nobody should argue about right to a trial because the accused could have just been killed by the police.
11.29.2006 10:50pm
Christopher Cooke (mail):
I agree with Mr. Davis' post. It seems reasonably clear to me that Yoo, Delahunty and Bybee, while at the OLC, were intent on writing justifications for the Bush Administration's decisions, not neutral analyses of the law to help guide those decisions. As for the war crimes allegation, I note that lawyers and judges in the Third Reich were tried for aiding and abetting crimes of the Third Reich because they justified the positions of their government. See the link here to an article on this issue by Phillipe Sands, a professor of the University College of London and former Hague prosecutor. I would not hire Delahunty and it is more to our shame that certain justices on our Supreme Court apparently are so politically compliant to the whims of a Republican president on these issues that they voted to uphold these ridiculous views.
11.30.2006 1:34am
josh:
SP said

"You are forgetting that the only reason Cole was even close to getting the job was due to his ideology. It was the fact that it caused such controversy that led to scrutiny over his actual work, which turns out to be quite thin."

I'm going to muck up the posting of a link to Cole's bibliography, but here goes. Now, I ain't counting it, but it looks the opposite of "thin" to me. Accordingly the dispute at Yale must be about content, and not quantity. But as I stated earlier (the crickets are chirping waiting for DB to address the issue of why the Delahunty blackball is inappropriate, but Cole's isn't. I'm waiting with bated breath for the rationalization), disagreement over an academic's content is the very purpose of academia.

Juan Cole's scholarly work isn't "thin." It may be wrong, but it ain't thin. Disagreeing with its content is another thing, but no more a reason to ban him from a university as it is to ban Delahunty.

Chirp. Chirp.
11.30.2006 1:51am
josh:
Of course, I am too stupid to figure out how to post a link here, so my comments should be taken with a grain of salt. I will cut and paste manually. http://www-personal.umich.edu/~jrcole/cv.htm
11.30.2006 1:52am
Elliot Reed:
Nobody here has mentioned that OLC lawyers aren't just giving advice to a client in the sense that we ordinarily understand. In a sense an OLC memo is the law, because it would be unthinkable for the President to prosecute someone who relied on an OLC memo in good faith. So by writing this memo Yoo, Delahunty, and whoever else was involved were not just advising a client about the state of the law: they were effectively authorizing the (immoral and illegal) practices their memo discussed.

I haven't read the memo in question, nor do I know much about the law on this issue. However, if a lawyer has the power, by offering a legal opinion, to prevent serious atrocities, that lawyer has a moral obligation as a human being to offer that opinion whether or not he sincerely believes it. That Yoo and Delahunty failed to do this represents a severe moral failing on their part.
11.30.2006 2:39am
microtherion:
To get away from the Nazi analogies for a while: Do the Delahunty supporters think that if Trofim Lysenko were to teach a class at a biology department, it would be a violation of academic freedom for students or fellow professors to protest this?
11.30.2006 3:09am
18 USC 1030 (mail):
I think much of the reasoning in this thread, so far is off the mark. It's probably too late now, not sure if anyone is left but here is a copy and paste of my comment to the previous post on the subject:

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 is 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 (what that may be, I don't know). Merely wanting the Conventions to apply does not magically make them apply. And, before people jump on my case, remember: saying the Conventions do not apply != saying we should torture people

The memo can be found here:
Sorry this was so long…
11.30.2006 9:02am
mst (mail):
Implicit( i say this w/o having read all posts, perhaps someone already made it explicit) in the suggestion that this Prof is incompetent/ war criminal because of the legal postion he and the administartion took is that the Judges and Justices that did not disagree with this position are themselves incompetent/war criminals etc. The case got to the SCOTUS. There was reasonable debate about the merit of both positions. One side won.
11.30.2006 9:11am
J. F. Thomas (mail):
The case got to the SCOTUS. There was reasonable debate about the merit of both positions. One side won.

I hate (actually I don't) to be accused of raising Godwin's Law again, but more than sixty years after World War II the collective guilt of the German and Japanese people and corporations, even American ones (e.g. IBM), for the atrocities committed by their respective regimes is still being debated. The morality and wisdom of the Strategic Bombing campaign, especially late in the war in Germany and the conscious decision to target civilians with firebombing in Japan (to the end in Germany the legal fiction that we were "dehousing" workers and attacking factories, not the civilians themselves was maintained) remains a sensitive subject in this country and Britain and the two staunchest advocates of unrestricted bombing, "Bomber" Harris in Britain and Curtis LeMay in the U.S. remain extremely controversial figures with stained reputations.

To say that a lot of people think it is a good idea to torture and deny the most fundamental human rights to detainees out of fear of terrorism and are willing to jeopardize our standing in the world, our belief in the rule of law, and our traditions and constitution to do it settles the question hardly matters.
11.30.2006 10:49am
Anderson (mail) (www):
saying the Conventions do not apply != saying we should torture people

Literally, no. But why would we confine ourselves to the literal? A lawyer who thinks his job is all about the words on the page, is a very poor lawyer indeed.

Question: why would the White House want an opinion that Geneva didn't apply? What did it want to do that was forbidden by Geneva?

(See Ben Davis's excellent comment above for a reminder that, by going through OLC, the White House was indeed seeking the answer it wanted.)

Of course, we get to cheat now, b/c we've seen the answer: torture, abuse, and indefinite imprisonment without due process of law. The question is, was that really so hard to foresee?
11.30.2006 11:15am
Oren Elrad (mail):
18 USC 1030:

We had this debate earlier in the thread but it's worth rehashing since it got mucked up in other discussions.


Art. 3. In the case of armed conflict not of an international character . . .


I suppose you can get out of this by claiming that the conflict with Al Qaeda is somehow of an international character (IMO, that's straining the definition of international). Furthermore, reading article 3, that the GC drafters intended it to be as widely applicable as possible and their failure to specifically include the sort of US/AQ conflict should not be read as excluding it.

Even assuming, arguendo, that Art 3 doesn't apply. Yoo/Bybee et al. still have a problem with the UN Convention Against Torture, duly ratified and now 'supreme law of the land' (see Art VI, p2) and binding on the US gov't. There was an abortive debate earlier in the thread as to the meaning of Art VI,P2 that might belie this claim but it certainly reads as though treaties are binding law.


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.


I claim just that and I really don't find it absurd in the least. We treat murdered with no regard for life as though their life mattered to the point of spending $$$ on medical care when the police have to beat the crap out them to effect their arrest. We wouldn't countenance the police raping rapists on the grounds that they would do the same if they had the opportunity. I can identify two major lines of reasoning.

Firstly, as a practical matter we are more keen on restricting the abuses of those most capable of abuse. A police officer has sufficient authority to make us queasy about whether he will abuse that power. Indeed, with all the legal restrictions, most police officers are not hesitant to take people in for a "humble"* as they call it. Similarly, in the international scene (and despite the rantings of the FOX news crew) we all know that terrorism may be a Bad Thing but it hardly poses any real threat to civilization as we know it. As such, the situation is much more analogous to the murderer than to a real shooting war where the nation's existence is on the line. This counsels the same sort of restraint. This might be called the big-brother theory in homage to the fact that older siblings are usually subject to more rules than the younger ones.

The second thread is more abstract but comes down to the fact that our actions are not a reflection of the enemy's values but of our own. What we do is about us more than it is about them. As such, it behooves us to act in such a way that reinforces our core values even if that would be less tactically efficient.

Time for Work!


*For FC readers unaware of police slang, a humble is an arrest for a charge the officer never intends to go through on (usually disorderly conduct, breach of peace or any similarly vague "catch-all" misdemeanor). The citizen is arrested, makes bail and the DA drops the charge later. It happens a lot more often than you'd imagine. As a side-side note, I can't think of a remedy for this behavior that wouldn't seriously impinge on the ability of the police to do their job which is an odd thing to contemplate.
11.30.2006 11:36am
18 USC 1030 (mail):
Anderson Question:

why would the White House want an opinion that Geneva didn't apply? What did it want to do that was forbidden by Geneva?

There is a simple answer. The Convnetions entail A LOT more than merely prohibiting torture. This is not to say we are cheating--that is only the case if you view the Convnetions such as they provide law barring certain acts. This is not the purpose of the Conventions, though. Why should the US put itself in a position to be unable to execute its mission in order to comply with laws that do not apply.

For example, the Conventions set very strict rules about protecting non-combatants. This is based on the other requirements that prohibit combatants from engaging in combat without a uniform, insignia, and flag. However, the combatants with which we are currently engaged have no special mark identifying themselves--in fact, they go out of their way to appear to be non-combatants. Arguably, if the Conventions applied, we could not engage with these combatants unless attacked first. Furthermore, there would be issue as to the % of casualties are fighters vs. non-fighters. This creates major issues with calculating collateral damage--which could either act as a bar from engaging in legal warfare or put soldiers at risk to prosecution for war crimes because of the different standards required by the Conventions.

This is not to say I don't think laws apply--many do. But, some do not. This would be like saying: why do we require "proof beyond a reasonable doubt" in criminal cases, but only "prepoderence of the evidence" in civil matters? Is it cheating because Civil Plaintiffs do not need to prove it beyond a reasonable doubt? No! Why? Because different types of seemingly similar things are governed by different rules.



Of course, we get to cheat now, b/c we've seen the answer: torture, abuse, and indefinite imprisonment without due process of law. The question is, was that really so hard to foresee?
Yes I think it was that hard to see. I do not believe that by saying the Conventions don't apply one would logically conclude that the Torture Convention, ICCPR, UDHR, UN Charter, US Constitution, UCMJ, Customary International Law, Jus Cogens, US Statute, and US case law would all be violated.
11.30.2006 11:58am
18 USC 1030 (mail):
Oren

I think my response to Anderson in part responds to you, but a quick reply is that I agree with you that we should hold people accountable for violations of law/Human Rights. However, that does not mean the justification for such response ought to come from the Conventions. There are many other laws that apply (see my response to Anderson) which is why I don't see the reason for trying to apply the Conventions--you don't need to
11.30.2006 12:03pm
U of M alum:
The Minnesota law professors criticise Delahunty for being on the losing end of a close decision in Hamdan. It’s interesting to note that the University of Minnesota law faculty signed on to the frivolous challenge to the Solomon Amendment in Rumsfled v. FAIR. They lost that case 8-0.
11.30.2006 1:31pm
Steve H (mail):
Davide (7:37 pm):

As I have said at least twice now, my comparison is with power claimed, not actions taken. Further, my concern with the Administration's position regarding executive authority has nothing to do with my dislike of the current President.

Of course Bush hasn't done any of those things Hitler did. And I am quite certain that Bush will not, and would not, do any of those things. Hitler was evil. Bush is not. And even if Bush were evil and wanted to do those evil things, at some point the people of America wouldn't stand for it, and he would be stopped.

But under the Administration's proffered view of the President's powers, is there any legal basis that would prevent Bush or a subsequent President from doing actions like the ones you listed?
11.30.2006 3:45pm
UofM Student (mail):
As a student at the U of Minn., I just wanted to add some additional information following up on a few points I noted on this thread.

First, I was told that only nine professors signed the letter because it was drafted late at night and in a hurry, and those nine were the only ones around at the time. I have also heard that many more professors agree with this position.

Secondly, Delahunty was hired to teach a required 1L Constitutional Law class. Those students don't have a choice as to whether or not to take his class. So what should the U do with those students who refuse on moral/ethical grounds to take his course? Will the University allow students to transfer classes because they do not agree with a professor's political view points or legal reasoning? It will be interesting to see what happens. In the meantime, rumor is that the school is setting up a meet-and-greet with Delahunty and his future students so that he can address their questions or concerns. That should be interesting.
11.30.2006 4:07pm
keypusher (mail):
18 usc 1030

I tried to print the memo from your link to it in the previous thread, but only got the first ten pages. Could you re-post the link, please?
11.30.2006 4:09pm
18 USC 1030 (mail):
Whole memo is here Please note I do not agree with their statements on Customary International Law--I think that applies as a matter of Constitutional requirement. The constitution differentiates between laws of nations and treaties--CIL has since been understood to mean law of nations. But the end at least suggests that the president "may" apply CIL.
11.30.2006 4:49pm
Anderson (mail) (www):
Yes I think it was that hard to see. I do not believe that by saying the Conventions don't apply one would logically conclude that the Torture Convention, ICCPR, UDHR, UN Charter, US Constitution, UCMJ, Customary International Law, Jus Cogens, US Statute, and US case law would all be violated.

Those were abolished in the *other* memos. ;)
11.30.2006 5:01pm
18 USC 1030 (mail):
Those were abolished in the *other* memos. ;)

My issue is not that these guys shouldn't be admonished. My issue is that they shouldn't be admonished for the Geneva Conventions arguments. Though I agree in speaking of everything else they were way off the mark--Thus my point about focusing on the weakest argument (Geneva) rather than strongest (all the others).
11.30.2006 5:34pm
Oren (mail):
I think then the pertinent question is what is the function of the OLC? Does it advise the president in the same manner as a private attorney advises a client or is it meant to be a quasi-independent body whose pronouncements are given force of law.

Those are two manifestly different functions and their entanglement most unfortunate.
11.30.2006 5:38pm
mst:
U of M Alum, exactly right. Based on the argument made by some, these profs must now be considered incompetent/insincere/ideological hacks because their "incompetent interpretation " resulted in such a spanking. However, they were advancing a perceived "good cause", so they get a pass from those that share the political viewpoint or agenda.

No, Delahunty is not incompetent because he advanced a rejected theory.

The real objection to Delahunty is of course his perceived politcal orientation. To the profs i say, get over it and embrace diversity. To the students, i say take the class and learn from it. My Con Law professor was as far left as they come. My criminal law professor was pretty far right. Because i was liberal, i was more comfortable with the lefty prof. Once in practice for a while, i realized how much more we actually learned from the prof that challenged us to think, to keep an open mind, to argue postions that we might not feel politically comfortable with , and to respect each other as advocates. That is what law school is for, not to be spoon fed perspectives that make you comfortable. The school, and the students that take the class, will be better served by Delahunty than hiring someone to spout the party line.
11.30.2006 6:07pm
Anderson (mail) (www):
To the profs i say, get over it and embrace diversity.

"Diversity"? Evil is just another point of view, I guess.
11.30.2006 10:31pm
Justin (mail):
I think alot of people here need to reread both the Yoo Memo and the Hamden dissents. They're nothing alike.
11.30.2006 11:24pm
rdowhower (mail):
U of MN Student -

"First, I was told that only nine professors signed the letter because it was drafted late at night and in a hurry, and those nine were the only ones around at the time. I have also heard that many more professors agree with this position."

I first found a link to the letter from the nine around lunchtime, but didn't receive the general e-mail until much later in the day. You claim the letter was drafted late at night. Couldn't the nine have found some additional signers between the time they supposedly finished and when it was actually distributed? And why haven't all those others you "have heard" support the letter sent out supplemental e-mails voicing their support? I've heard there are over 700 students who don't support the letter. My evidence: they didn't sign the petition.
12.1.2006 7:01am
Federal Dog:
"So what should the U do with those students who refuse on moral/ethical grounds to take his course?"


Oh, for God's sake! Send them in and have them defend their "moral/ethical" position then. Public preening over their superior "moral/ethical" standards only makes the students looks like strutting jackasses. Make your case, or, if you can't, fall silent.

Finally, if you can't make a case for yourself beyond whining about 1L assignments, rethink your qualifications for the profession.
12.1.2006 7:34am
rdowhower (mail):
I would like to ask the professors who signed the letter how they feel about the U of MN Law School maintaining a campus in China, given the fact that they are so concerned with the human rights reputation of the School. Last time I checked, China wasn't doing so well in this area.
12.1.2006 8:17am
mst:
I'm m so sorry. I was so wrong. Anderson has convinced me. Mr. Delahunty should not be permitted to teach Com Law to 1L's because he is "evil".
12.1.2006 10:06am
MnZ (mail):
[Cole's research] may be wrong, but it ain't thin. Disagreeing with its content is another thing, but no more a reason to ban him from a university as it is to ban Delahunty.


Let's be clear. Yale did not ban Cole. Instead, they choose not to give him a tenured position. It is quite likely that those professors who opposed his tenured appointment would be indifferent (maybe even support) a visiting position for Cole. Furthermore, it is indeed true that Cole is prolific. However, the quality, content, and contribution of one's research are important when distributing tenured positions.
12.1.2006 12:22pm
Glocklover:
Those that argue against the hiring of Delahunty appear to carry that arguement past the hiring and believe war crimes have been committed by the President, Rumsfeld, etc. and those crimes were in fact authorized by the memo. That Delahunty deliberately wrote the memo with sure and certain knowledge that his position was indefensible, no basis in law or treaty, and that he was advocating torture. So, those that agree with Delahunty, by extension, would appear to also be acting in bad faith, and be advocates of torture, war crimes, and all the rest.

Why is it that certain political views believe their being "right" has to mean that those that disagree are not merely in the wrong; but, are... well.... evil. The Hitler analogy has already been used numerous times here; pitiful is the only word that comes to mind.
12.1.2006 7:35pm
Amy Bergquist (mail):
rdowhower:

The faculty letter had been sent out to the student listserve on Tuesday, but it evidently took the administration about 24 hours to approve it as the Dean of Students (the student listserve moderator) awaited word from the Co-Deans about whether the email was "appropriate." Interestingly, nobody in the administration informed the 9 professors that their email was "on hold" during that period, and at least one of the signatories made reference to the letter in class Wednesday morning and got a collective "huh?" from his students. Hence, there wasn't really a mechanism for the professors to update their head count when the email finally reached students' inboxes; the original email had been waiting all that time for the Dean of Student's approval, and that is what students ultimately received. Also, the signatories are not asking untenured faculty to endorse the letter, for obvious reasons.

And with regard to the student headcount, 188 students have signed the petition asking the Deans to reconsider hiring Professor Delahunty. That seems pretty respectable for the last full week of classes before exams. How many students have signed the petition endorsing the Deans' decision to hire him? How many students have signed the petition endorsing the process by which the Deans hired him?
12.1.2006 7:39pm
rdowhower (mail):
Amy -

I don't know what the last full week of classes has to do with the number of students that signed the petition. All I know is that your little table was set up all week for all to see, and that you sent out at least two general e-mails asking students to sign. This doesn't change the fact that the VAST majority did not sign your petition. As for there being a petition endorsing the decision and the process, I didn't know there was one. I guess the organizers of those petitions didn't feel the need to use the general listserve delivery that you took advantage of.

As for your explanation about the professors' letter, it still seems to me that if it was as important to other faculty members as you seem to imply, they could have just as easily sent out supplemental e-mails to the general student body informing us of their support. Maybe I didn't receive that particular e-mail.

I also notice you didn't address my question about the Law School's relationship to that beacon of human rights, China.
12.2.2006 9:05am
MN Law Student:
Amy-
Perhaps it never occurred to you that most of the law school does not agree with you. After several emails and every student walking by your sign 100 times, everyone had ample chance to sign your petition. You didn't get even close to half of the school to sign this petition. Does this tell you anything? I was also unaware of any other petition going around or else I certainly would have signed it. Perhaps it would be best to refrain from sending mass emails out about this as everyone is well aware of your cause and most simply disagree with you.
12.2.2006 11:24am
Amy Bergquist (mail):
Ryan &MN Law Student,

I don't think this type of dialogue is either productive or of interest to the general public. If you want me to address your concerns about my use of email, or the size of the table, or whether we should attribute some meaning to the silence of some students, or whether a petition should function as a plebiscite, please contact me privately and I'll be happy to respond.

If you want to respond to the substance of the ethical issue (and I'm sorry I'm having difficulty grasping the China connection, so perhaps that could be a starting point), I'm sure the readers of this blog (myself included) would be interested to read your comments. In case you would like to learn more about my views, I've posted at the Legal Ethics Forum.
12.2.2006 11:00pm
Benjamin Davis (mail):
Folks, let us remember these exchanges 25 or 30 years from now if we are around when we may only find out finally what really went on. We will ponder what we did or did not do. Stay strong Amy.
Best,
Ben
12.2.2006 11:19pm
josh:
MnZ

"Let's be clear. Yale did not ban Cole. Instead, they choose not to give him a tenured position. It is quite likely that those professors who opposed his tenured appointment would be indifferent (maybe even support) a visiting position for Cole. Furthermore, it is indeed true that Cole is prolific. However, the quality, content, and contribution of one's research are important when distributing tenured positions."

Incredibly tenuous attempt to distinguish. Is the bar higher for tenure? Of course. But to apply entirely opposite standards for two sides of the political spectrum just isn't intellectually honest. It's not as if one could find a single professor or dean who would say, Gee, now that I think of it, incompetent academics/those with whom I disagree certainly are appropriate for visiting professorships, but NOT tenure!" No, I think at least superficially they would say the bar is just as high. In reality, the bar probably is similar, with the greater deference going to visiting profs (who often are only visiting as a way to acquire tenure at that institituon)

[Chirp, Chirp, say the crickets waiting for DB to explain his hypocrytical approaches to Cole vis-a-vis Delahunty. Oh, I did notice that he posted approving of those brainiacs on Powerline on Delahunty (without comments). Of course, they were right in the middle of blackballing Cole with Big Trunk's daughter (Little Trunk? Oy Vei) taking the lead. Not that Powerline would EVER take one position on an issue so long as it benefits conservative views, but the exact opposite when it concerns liberals. NEVER!]

[CHIRP, CHIRP]
12.3.2006 10:09pm