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OLC Alum Hullabaloo (Continued):

UMinn law student Ivan Ludmer has two follow-up posts (here and here) on the controversy over whether Robert Delahunty should teach Constitutional Law at Minnesota next year. Among other things, Ludmer notes that, according to this story in the St. Paul Pioneer Press, UMinn officials were completely unaware of Delahunty's role in the "torture memos" -- and presumably equally unaware about the controversy sparked by his hiring at St. Thomas several years earlier.

Brad Wendel also has a lengthy post at Legal Ethics Forum examining whether one could oppose hiring Delahunty without threatening academic freedom. The answer is yes, Wendel concludes, at least in principle. Among other things, Wendel notes, one could oppose Delahunty's hire on non-ideological grounds insofar as one believes his work "was results-driven to an extent that crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." [Aside: I don't know Delahunty, buy given his apparent success as a career civil servant at OLC during the Clinton Administration, I wonder whether this would be a fair characterization of his work.]

If this is the proper standard, I wonder about its implications. I have seen many legal documents prepared by federal agency attorneys that clearly "crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." Granted, these legal opinions rarely, if ever, concern something as sensitive (or morally weighty) as torture and the treatment of detainees, and we may justifiably apply uniquely demanding standards to OLC that we would not apply, say, to the FDA or EPA. Nonetheless, some agency legal work is simply gawd-awful, transparently result-oriented and undertaken with little regard for the relevant legal requirements. Should those who willingly worked on such matters also be excluded from the academy? Or does the seriousness of the subject matter make this a special case? (And, if so, then is not the opposition to Delahunty in some sense "ideological"?)

Dave Hardy (mail) (www):
" smoke-and-mirrors evasion of legal requirements"? They got a law prof who knows something about the real practice of law, and they're complaining?
11.30.2006 5:31pm
Steve:
The opposition is principally ideological and I think it's a silly legal fiction to pretend otherwise.
11.30.2006 5:31pm
zooba:
What's wrong with ideological opposition. It's not like you can write a memo on torture and then expect to work at some crazy liberal place like Berkeley. Oh wait.
11.30.2006 5:36pm
UMinn3L (mail):
There is nothing wrong with ideological opposition. But, they are driving their ideological opposition under the thinly veiled guise of "legal ethics" by stating on their petition that they respect different ideologies, they just disagree with the ethical implications of hiring this professor.

If they have an ideological problem, which is clearly the case, they should simply say that. Trying to make it about ethics when that is not the core concern is a ruse.
11.30.2006 5:44pm
James Dillon (mail):
Is opposition to an academic hiring on "ideological" grounds always a bad thing? If so, why? If Mr. Delahunty were, say, an avowed proponent of repealing the Thirteenth Amendment, wouldn't most of us feel comfortable saying that he should be denied a place in the legal academy? Yet wouldn't that also be an ideological position?

The law is not value-neutral. There are some fundamental value judgments that are perhaps nowhere explicitly codified in our Anglo-American legal system, yet are manifested in many of its features. On of these, perhaps the most basic, is that every human being is entitled to be treated in a decent and humane way by a civilized society. If the allegations of the students and faculty opposing Mr. Delahunty's appointment are true, then a plausible case could be made to suggest that Mr. Delahunty participated in a very serious effort to circumvent or undermine that axiomatic principle.

I don't know enough about the facts of this situation, or about Mr. Delahunty's participation in the preparation of the "torture memos" (or, indeed, having not read them, whether the memos can in fact properly be characterized as a "smoke and mirrors" advocation of torture) to have a firm opinion about this controversy; however, if there were a situation in which an attorney had willfully participated in preparing a sham legal document purporting to legally justify the torture of other human beings, I would have no reservations about ostracizing that attorney from the field of legal academics, regardless of his credentials or academic ability. That may be an ideological position, but I think it's also a fully justifiable one.
11.30.2006 5:46pm
a reader:
The seriousness of the subject matter makes this a special case.
11.30.2006 5:49pm
Jay Reding (mail) (www):
In the spirit of full disclosure, I am a 1L at the University of St. Thomas who will be taking Prof. Delahunty's Constitutional Law class this semester.

The University of Minnesota has a longstanding problem with academic views that don't match the liberal political stances of the majority. The argument that the OLC memo was so absolutely egregious as to render Prof. Delahunty unfit to teach doesn't strike me as being all that persuasive. I know that I for one feel quite fortunate that Prof. Delahunty is teaching at St. Thomas, as a new program (we only were accredited this year) often has problems attracting such prestigious talent.

A commitment to academic freedom is a sign of a strong intellectual atmosphere. Catholic legal theory is completely at odds with torture, yet the University of St. Thomas felt that Delahunty's positions would add strength to our Catholic institution of legal thought. Respectful academic dissent is not something to be shunned, but something to be embraced.

I personally believe that the provisions of the Geneva Convention do not apply to members of al-Qaeda who wear no uniform and respect no boundaries of lawful combat. Should I then duly report to the Dean and inform him that my presence is somehow an insult to the legal profession? Should we apply this standard to all, and insure that no member of the legal community is allowed to dissent on this issue? How would that be a stand for academic freedom?
11.30.2006 5:54pm
Patrick Wright (mail):
"I have seen many legal documents prepared by federal agency attorneys that clearly 'crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements.'"

Not to mention federal judges.
11.30.2006 5:54pm
UMinn3L (mail):
Response to St. Thomas 1L:

First, welcome to the community!

Next:

"The University of Minnesota has a longstanding problem with academic views that don't match the liberal political stances of the majority."

Our con law faculty is surprisingly conservative. Among the student groups, the Federalist Society is arguably the most prominent. While the faculty as a whole tends to weigh on the liberal side, there is a core group of highly respected conservative scholars who create a somewhat more balanced faculty than one would find at many of our peer schools.
11.30.2006 6:11pm
Jay Reding (mail) (www):
UMinn3L: Thanks very much.

I'm speaking in general - to be honest, I don't know all that much about the law school. In general, I've found the atmosphere at the U of M to be decidedly tilted against any expression of conservative beliefs - but that comes as someone who has not been a student there.

It seems to come down to this: was the OLC memo such an egregious violation of legal ethics that those responsible for drafting it have no business in legal academics? If so, what of the judges who have supported the conclusions of that ruling? Should they be subject to sanction for their position.

I realize that this is a controversial issue, and it still is a frequent topic of discussion at St. Thomas. However, once one makes ideology the issue (as the signatories to the student letter do explicitly), then all pretense of real academic freedom goes out the window. One can make the argument that the OLC memo was bad lawyering -- but I don't really think that's truly what the argument is about. Were it a brief in support of radically expanded environmental rules that was equal or similar in academic quality to the OLC memo, would there be such a controversy? I have a tough time believing that it would.
11.30.2006 6:22pm
UMinn3L (mail):
St. Thomas:

I agree w/ you about the U in general - quite liberal.

And actually, although I didn't note this, I agree with you on the Delahunty issue even though I consider myself to fall slightly on the liberal side of the line. Were he to teach an elective, I would think that it would be a great educational opportunity and would sign up for it.
11.30.2006 6:34pm
pallen:
I don't think this is a question about ethics vs. ideological concerns.

The problem with the professors position is the arrogance of their argument. So far as they might be attempting to persuade people, they are definitions commiting the Fallacy of Many Questions. (http://en.wikipedia.org/wiki/Fallacy_of_many_questions)

i.e., the position that the torture memos are wrong as a matter of law is not generally agreed upon.

This makes their high-handed confidence rather abusive.

It is generally agreed _in the world_ today that Communism was wrong; that Stalinism was really bad. Opposing adherents from teaching on ideological ground has justification.

The same cannot be said of Socialists. Many people still believe that socialism is "right".

Therefore in the spirit of respecting dissent, disagreement, and debate, it would be a great crime to categorily refuse socialists positions in the academy.

On the other hand, it would be fair to oppose said socialists from activing teaching their dogma as fact when they have in fact been hired to teach a quite different subject.
11.30.2006 9:34pm
Benjamin Davis (mail):
As I ponder these posts in support of Delahunty, I must admit that the definite impression comes across that the persons on this post have no respect for the military. The top military JAG officers were cut out of the process of drafting the policies here.

Again, wild ideas of Yoo and Delahunty were put together in a manner to allow the President to do what he wanted to do -torture and treat cruelly, inhumanly and degradingly persons who were captured. No state is to do that.

The strained interpretation of the Geneva Conventions that Delahunty preached did open the way for torture etc. One should read the Alberto Mora memo on what happens when there are no limits set - it is called force drift - and it is perfectly predictable.

As children of the enlightenment I would think that we would appreciate that the degrading of humans by the state is not a very good idea. I guess you all will have to await the day something like that happens to you. They use to say a liberal is someone who hasn't been mugged. I guess a conservative is someone who thinks that the state will never come for them.

Best,
Ben
11.30.2006 10:25pm
Anderson (mail) (www):
Or does the seriousness of the subject matter make this a special case? (And, if so, then is not the opposition to Delahunty in some sense "ideological"?)

The word I would use is "moral," but maybe morality is just an ideology to some people.
11.30.2006 10:29pm
UMNalum:
Can a distinction be made between opposition to an individual's ideological views and concerns about the core obligations of the legal profession? Perhaps attorneys have a duty to seek justice, broadly defined, and perhaps abetting war crimes is totally incompatible with that duty even if there's a good faith legal argument for the legality of those war crimes. That might mean that if Delahunty, whatever his personal and professional views, has abetted war crimes he's unfit to practice or teach law because his actions make him definitionally unfit for the legal profession.

Granted, this possibility would hinge upon normative principles related to the legal profession that aren't universally accepted, and, even if we could agree on the definitional qualities of the legal profession, it's far from clear that Delahunty's actions would indicate he's deficient in those qualities. I'm just wondering if opposition to Delahunty can be plausibly justified on grounds other than ideological opposition.
12.1.2006 12:07am
Christopher Cooke (mail):
The issue is more than legal ethics, it is about aiding and abetting alleged criminal conduct by our present government. Precedent from the Nuremberg trials established that lawyers and judges who facilitated the violation of international human rights laws by their legal opinions were themselves guilty of human rights violations and could be held to account as war criminals. So, if Delahunty and Yoo facilitated the torture of individuals (and, I am NOT saying they did), by declaring Al Qaeda members to be stateless actors subject to no protections under international law, and then by seeking to justify torture by not calling it such (here, I do not even know if Delahunty had a role in the relevant memo), he and Yoo could be held to account for such actions, as international war criminals, in a foreign court. I am not saying Yoo or Delahunty are, mind you, I am just explaining the issue.

In fact, there is a case pending in German on this very issue. In that case, Guantanamo detainees have sought the indictment of Rumsfeld and others for violations of international human rights laws. My guess is that the German prosecutor will not bring charges against Rumsfeld, even if he could under German law, but his rejection of such charges will have little to do with a neutral analysis of the law and the evidence. But, just as a Spanish magistrate indicted Pinochet for violations of human rights laws, so to a German magistrate could indict someone in the US government for violating these laws, if the evidence and laws so warranted. Of course, Pinochet's many supporters in Chile disagreed with the Spanish magistrate's action, just as Bush's many supporters would doubtless disagree with a German prosecutor's charges against Rumsfeld. But Chile's status as a signatory to conventions against torture (which the US also signed) rendered Pinochet vulnerable to such charges. Indeed, if the Bush administration were so convinced that all of its actions were lawful, why did it explicitly seek protections from criminal prosecutions in the US in the recent statute that it enacted on the treatment of detainees?
12.1.2006 12:40am
Dave Hardy (mail) (www):
Perhaps attorneys have a duty to seek justice, broadly defined, and perhaps abetting war crimes is totally incompatible with that duty even if there's a good faith legal argument for the legality of those war crimes.

C'mon, if somebody could walk Sadaam Hussein, or get him probation and 200 hours community service, I'd say he'd make one heck of a criminal law prof!
12.1.2006 12:46am
Chumund:
I tend to agree with those who implicitly suggest Wendel is wrong: it does in fact matter to the letter writers that Delahunty's conduct allegedly facilitated torture by the United States and possibly amounts to war crimes or crimes against humanity. In other words, legal competence or even legal ethics in some abstract sense do not capture the essence of their objection, which in my view cannot be separated from the subject matter of the memo.

Incidentally, I don't think the hunt for an appropriate label (legal ethics? ideology? morality") for the basis of the letter writers' objection is all that helpful. But if one insists, I'd say their primary argument is that Delahunty's conduct is "possibly criminal".

So if we are looking for hypothetical analogies, I think that should be the essence of the analogy. In other words, it wouldn't be enough that the hypothetical candidate took an erroneous legal position, or even did so knowingly in violation of legal ethics. Rather, to track the letter writers' view of the situation, the hypothetical candidate must have done something that could possibly be construed as criminal.

By the way, as always, I should note that I am not necessarily endorsing the letter writers' conclusions about Delahunty's conduct. But I think it is important to understand the nature of their objection.
12.1.2006 3:39am
Anderson (mail) (www):
I appreciate the humor in your comment, Dave Hardy, but getting Saddam off *after the fact* isn't the same as enabling war crimes to be committed *before* the fact.

Everyone's entitled to counsel -- even Delahunty, should he find himself pulled off a plane overseas and extradited to the Hague.

The slightly off-point example that comes to my mind is the great attorney who defended the scumbags in the Triangle Shirtwaist factory fire:
The company's owners, Max Blanck and Isaac Harris, had fled to the building's roof when the fire began and survived. They were later put on trial, at which Max Steuer, counsel for the defendants, managed to destroy the credibility of one of the survivors, Kate Alterman, by asking her to repeat her testimony a number of times — which she did, without altering a single word. Steuer argued to the jury that Alterman and probably other witnesses had memorized their statements and may even have been told what to say by the prosecutors. The defense also stressed that the prosecution had failed to prove that the owners knew the exit doors were locked at the time in question. The jury acquitted the owners. They lost a subsequent civil suit in 1913.
This was an ethics topic in my (largely worthless) "legal profession" class I took.
12.1.2006 9:09am
Ken Arromdee:
Granted, this possibility would hinge upon normative principles related to the legal profession that aren't universally accepted, and, even if we could agree on the definitional qualities of the legal profession, it's far from clear that Delahunty's actions would indicate he's deficient in those qualities. I'm just wondering if opposition to Delahunty can be plausibly justified on grounds other than ideological opposition.

That just pushes it up a level. Instead of opposing him based on ideology, you would be using an ideologically-based definition of legal ethics and then opposing him based on that. It amounts to the same thing.

If your legal ethics definition included "a lawyer must not be Jewish", and you opposed a Jewish lawyer on the grounds that ethics doesn't allow that, isn't that pretty much the same thing as directly opposing him for being Jewish?
12.1.2006 9:20am
UMNalum:
Perhaps it would be more accurate to characterize my suggestion as an alternative to opposition based on the Delahunty's beliefs rather than a non-ideological alternative. The line gets blurred if you define the core obligations of the legal profession in terms of beliefs, but it may be a plausible argument otherwise. And, yes, it would still hinge on normative principles related to the legal profession that aren't universally accepted, but it seems like it needn't have anything to Delahunty's actual beliefs.
12.1.2006 10:04am
James Dillon (mail):
Ken,

Can you offer an example of some principle of legal ethics that isn't "ideologically based"? As I pointed out in my post above, law is not value-neutral. Ethics, by its very nature, is not value-neutral. Any system of ethics is going to rely on normative judgments that one would hope are reasonable and widely-shared, but are in any case no less legitimate simply for being normative judgments. If you want to call that "ideological," fine, in a sense that's true. But then you have to go further, and explain why that kind of ideological opposition is illegitimate or improper? The premise that an attorney acts unethically when he intentionally facilitates human rights violations and war crimes seems like a pretty reasonable, widely-held one to me. Like many others, I'll add that I'm not necessarily saying that Delahunty is guilty of that offense, but if evidence exists to suggest that he may be, then I think that the students and faculty of the University of Minnesota might properly oppose his appointment to the faculty on that basis.
12.1.2006 10:16am
Oren Elrad (mail):

C'mon, if somebody could walk Sadaam Hussein, or get him probation and 200 hours community service, I'd say he'd make one heck of a criminal law prof!


Indeed he would, because his job as Saddam's attorney would be to present the most forceful defense possible and to let the judge throw out legal arguments that don't hold water. It would be a dereliction of duty to present a lackluster defense or to omit serious exculpatory evidence.

The job of the OLC is quite different - it pronounces on what the law is (and is effectively the law in the executive branch until a court or congress says otherwise). As such, it carries a different set responsibilities and it is a dereliction of this duty to present unreasonable result-oriented as the law of the land.

FWIW, I think Delahunty did not quite cross the line and, although the memos may have been an expedient, they present a plausible (although wrong) legal argument. What this does, however, demonstrate, is the need for a more independent OLC (essentially splitting up the lawyers for the president and the lawyers evaluating the presidents desires for legality).
12.1.2006 10:17am
Byomtov (mail):
some agency legal work is simply gawd-awful, transparently result-oriented and undertaken with little regard for the relevant legal requirements. Should those who willingly worked on such matters also be excluded from the academy?

Couldn't they reasonably be excluded on grounds of incompetence? Should designers of "gawd-awful" bridges be hired to teach civil engineering?
12.1.2006 10:55am
hey (mail):
If you work for a conservative president, ipso facto you are ineligible to teach law. Let's just come out and say this. The leftists that make up the vast majority of the legal academy and who are behind this process are simply engaging in an ideological veto. They don't believe that there is any legitimate way to come to an understanding of the law that is not their own, therefore all opposition is unethical. Reminiscent of Lynne Stewart's favourite country: the USSR.

Given the entrenched opposition of the academy and their extreme, illiberal views, moral people should oppose their employment in any position in the US government. It is time to fight fire with fire, and to work to ensure that all socialists and communists are not only excluded from government and the academy but are held to account for their part in the mass genocide that communist states engaged in and are still engaged in. They have and are aiding and abetting wholesale slaughter and should pay for this, rather than being allowed to continue their subversion of the United States.
12.1.2006 12:44pm
ed (mail) (www):
Hmmm.

Curious that academic freedom applies to liberal academics only.
12.1.2006 1:34pm
NY (mail):
Very interesting dilemma.

re Germans, Spaniards and Pinochet and Rumsfeld, someone wrote "Indeed, if the Bush administration were so convinced that all of its actions were lawful, why did it explicitly seek protections from criminal prosecutions in the US in the recent statute that it enacted on the treatment of detainees?"

I'm amazed you can't think of even one possible reason. Perhaps the administration objected to the idea that as a matter of jurisdiction, any old pissant backwater Hun court can decide to put any American on trial, even though said American's alleged crimes were not on said barbaric tribe's own soil. I remark that the Geneva Convention is not self-executing, that's why things like 18 USC 2441 were needed. So whose law is this prosecutor then applying? And on what basis does he claim his devil-worshipping laws apply to Americans not on his soil, whose crimes were not committed in whole or part in his blighted territory, whose victims are not straight-from-Satan's-armpit German citizens?

Perhaps the administration objected to it as a matter of policy and precedent, fearing that acquiescing to such silliness can only force its personnel to consider the "German test" every time they have to make a decision: am I offending obnoxiously pacifist Prussian sensibilities by placing American security first today? Will Upper West Siders turn me over to the BMW-makers because of such and such note to my supervisor?

Of course, I am not privy to Bush's mind, so I'm just guessing, but it doesn't take much imagination to pretend you're Rumsfeld's lawyer, instead of some expiating libber.

re Delahunty's thought crime and professional responsibility:

"The law is not value-neutral. There are some fundamental value judgments that are perhaps nowhere explicitly codified in our Anglo-American legal system, yet are manifested in many of its features. On of these, perhaps the most basic, is that every human being is entitled to be treated in a decent and humane way by a civilized society."

Does anyone remember that case in professional responsibility class about a racist who was not admitted because the court found that racism is in contradiction to one of the foundations of American law, equality? This sounds like the basis of some of the comments above: Delahunty's position is just so beyond the pale that it actually violates the 'axioms' of the American tradition, and indeed, the 'Enlightenment' itself. Never mind that such things are so deeply ingrained in our traditions that they waited until the 20th Century to make a law out of them; notice how it's cruel and unusual punishment, but not cruel and unusual questioning.

"If the allegations of the students and faculty opposing Mr. Delahunty's appointment are true, then a plausible case could be made to suggest that Mr. Delahunty participated in a very serious effort to circumvent or undermine that axiomatic principle."

(1) Are they true? Shouldn't he be put on trial first for thinking wrongly, before being hired? (2) This is perhaps a warning to guys like me; to preserve my employment options in the future, I will only take the bien pensant view on gay marriage, women in the military, etc., lest I be ostracized for merely writing a memo on the applicability of certain treaties to certain persons, hitherto without precedent (note that it took a whole federal case to determine that common Article 3 applies to these pirates, and only if one believes "international" means what the Court says; think of it, pirates by tradition have always been the enemy of mankind and hanged wherever found, until now when they get minimal due process first). Seriously, who here thought the protocols applied to Al Qaeda before the Court said so?

IN SUM: do not venture any view on the bleeding edge of the law, because they will not let you into their club. Doesn't this explain why conservatives go into private business and liberals go into academia?
12.1.2006 1:54pm
James Dillon (mail):
NY,

Never mind that such things are so deeply ingrained in our traditions that they waited until the 20th Century to make a law out of them; notice how it's cruel and unusual punishment, but not cruel and unusual questioning.

I don't understand what you mean by this. I am not a legal historian, nor do I have the time to research this issue thoroughly at the moment, but I feel confident on the basis of my present knowledge in saying that the axiom I identified earlier ("that every human being is entitled to be treated in a decent and humane way by a civilized society") has been ingrained in the Anglo-American legal system since well before the twentieth century; in fact, I would say, as I suggested earlier, that it can be found to manifest in many provisions of the Bill of Rights. As to your reference to the Eighth Amendment, I would think that torture would be more of a due process issue than a cruel and unusual punishment issue, at least when it occurs during interrogation or pre-conviction detention. The fact that the Geneva Conventions were not adopted until the twentieth century certainly doesn't mean that the general principle of treating people humanely wasn't developed until that time!

Stating the issue as one of the "applicability of certain treaties to certain persons" simply misses the point. As I see it, it really doesn't matter whether the Geneva Conventions do or do not apply to Al Qaeda members or any other group of combatants, at least insofar as whether it's okay to torture them is concerned, because quite simply, civilized nations to not torture people! That has the air of a natural law argument about it, which I'm not very happy with since I always viewed myself as a legal positivist, but perhaps naively, until very recently it never occurred to me that there might some day be a serious dispute in the United States of America about whether or not it is appropriate to torture prisoners in the manner in which detainees at Guantanamo, Abu Ghraib, and the CIA's black sites are alleged to have been treated. The effort by yourself and others to cast this as a mere matter of textual interpretation "on the bleeding edge of the law" seeks to avoid a well-settled, frankly irrefutable principle of law and morality: there are some things that sovereign nations which aspire to claim a moral legitimacy for their actions on the global stage simply do not do. If, as has been suggested (but, again, on which I take no position), Mr. Delahunty knowingly participated in drafting a legal document for the purpose of providing a technical justification for a clear and abominable violation of the letter and the spirit of American and international law, then yes, I would say that he acted unethically, immorally, and deserves the rebuke of the legal profession for those actions.

I'm confused by the commenters who apparently seek to turn this into a "conservative vs. liberal" issue. Is it really the position of mainstream conservatism that it's perfectly ok to torture prisoners unless there is a clearly applicable legal regulation specifically prohibiting such behavior? I'm obviously to the left of most of the posters and commenters on this site, but I had thought in recent years that the Bush administration's indefensible disregard for human rights must be an aberration that even intelligent, good-faith conservatives would reject. Seeing so many articulate and spirited defenses of Mr. Delahunty's alleged role in facilitating the administration's offenses as a mere matter of "academic freedom" makes me wonder if there's as much common ground between myself and the mainstream right as I had hoped.
12.1.2006 3:16pm
srp (mail):
James Dillon needs to go back and read the memo in question. It says nothing at all about torture. It says that the Geneva Conventions don't apply to al Qaeda prisoners. And, in my opinion, the Supreme Court twisted itself into a pretzel to avoid this obvious, almost black-letter conclusion. So I guess I'm a bad guy, too.

Now we have people like Mr. Dillon alleging that this technical point (with great substantive policy merit as well) is somehow an attack on the Enlightenment. Great for self-dramatizing moral righteousness, but irrelevant to the issue at hand. Stress interrogations, torture, etc. aren't the issue--the issue is whether it is even okay to interrogate an al Qaeda prisoner. POW status says no. The issue is whether illegal enemy combatants, who hide amongst civilians in order to maximize civilian casualties, should be rewarded for this behavior when the Conventions were intended to stamp it out. In my opinion, most of the anti-Delahunty commentary, and the legal opinions in opposition to his memo, are out of contact with morality and reality.
12.1.2006 4:27pm
James Dillon (mail):
snp,

I've made clear in every post that I've written that I have not read the memo, and that I don't have sufficient information about Mr. Delahunty's situation to hold an informed opinion about whether or not the objections of the University's faculty and students are actually warranted. What has disturbed me in the discussion of this issue, and to which I was responding in the above post, is the attitude that I perceive among some commenters that, even if the objections to Mr. Delahunty's appointment are factually accurate, the situation is still nothing more than a dispute about "academic freedom." It is with that position that I disagree strongly. It may well be the case that the memo in question was not so flagrant an attempt to evade basic principles of justice, or Mr. Delahunty's involvement not such as to give rise to a fair inference of knowing involvement in gross violations of human rights, such that the objections to his appointment are not, in fact, warranted.

Stress interrogations, torture, etc. aren't the issue--the issue is whether it is even okay to interrogate an al Qaeda prisoner. POW status says no. The issue is whether illegal enemy combatants, who hide amongst civilians in order to maximize civilian casualties, should be rewarded for this behavior when the Conventions were intended to stamp it out. In my opinion, most of the anti-Delahunty commentary, and the legal opinions in opposition to his memo, are out of contact with morality and reality.

Are you suggesting that POW status under the Geneva Conventions means that the government lacks the legal ability to interrogate the prisoner at all? If so, I wasn't aware of this. Regardless, torture is the issue, and I find your suggestion that immunity from torture is a "reward" to which "illegal combatants" are not entitled to be a bit disturbing. As I tried to point out before, all legalities aside, civilized nations do not, and should not, torture prisoners under any circumstances. If (and again I emphasize if) Mr. Delahunty's memos were written with the intended purpose of justifying a government practice at odds with that principle, then I do think that we have good reason to be concerned about his ethical fitness to teach law.

As to the divided Supreme Court opinion, I would point out again that the question of textual interpretation is not really the crux of the ethical issue here. Maybe the Geneva Conventions apply by their terms to Al Qaeda members, and maybe they don't; I don't pretend to have sufficient expertise in the interpretation of treaties to have an informed opinion on that subject. But I think that, regardless of that question, the arguably objectionable (again assuming that the objections of the students and faculty are basically factually accurate) aspect of Mr. Delahunty's behavior is his complicity in crafting a technical legal justification (as NY put it, about the "applicability of certain treaties to certain persons") for a policy in glaring violation of accepted norms of decency and humane treatment.

Finally, yes, if you're going to put it that way (I didn't), I suppose I do think that a program of state-sponsored torture is an attack on Enlightenment values; I can't think of a much more serious one, honestly. Perhaps this conversation has drifted too far into the hypothetical, though. Again, I'm not sufficiently familiar with Mr. Delahunty's situation to say that the criticisms I've been discussing necessarily apply to him, but I will certainly say that they would apply to any government attorney who knowingly seeks to facilitate and legitimize an official policy of torturing prisoners, whether during a time of war or any other time, has violated his ethical obligations as a lawyer and a human being to such a degree that we might very reasonably question his fitness to teach law, regardless of whatever intellectual qualifications he might otherwise have.
12.1.2006 4:58pm
Anderson (mail) (www):
To put it another way, if Delahunty is horrified by the uses to which his memo was put, now would be a really good time to go public with that emotion.

If not, well, then allow us to draw our own conclusions.
12.1.2006 5:45pm
J. F. Thomas (mail):
So do Delahunty help in the preparation of the torture memo or not? It's signed by Bybee.
12.1.2006 7:05pm
Benjamin Davis (mail):
If someone is a POW they can be interrogated. If someone is not a POW (i.e. Common Article 3 - armed conflict of a non-international character) they can be interrogated. If someone is a civilian captured who is a security threat or otherwise, they can be interrogated (GCIV).

So what is the big deal? The big deal is that in all those cases someone can not be tortured, or be subject to cruel inhuman and degrading treatment under the GC's.

Delahunty-Yoo took the position that GCIII and GCIV did not apply to these persons. So the bedrock rules on what treatment is permitted in those GC's are thrown away. These people were also considered to not have any constitutional rights and if they had rights in customary international law rules, the President is said to have the power to override customary international law with alacrity as a matter of internal US law (constitutional or otherwise) and notwithstanding his constitutional duty to faithfully execute the laws.

Conclusion, Yoo-Delahunty make a careful argument that these people have no rights (sort of a Dred Scott redux - no rights (America) has to respect). So that the people are then concluded to be left to the whim of the naked power of a state.

I sense because everyone despises Al Qaeda that some of you are cheering at this point and think Delahunty is a great patriot.

Does anyone remember this kind of process in the recent past? Does anyone remember what happened to the people left in that kind of state where they are considered to be beyond law and subject to the whim of the naked power of the state?

A domestic court or a member of an administration can analyze a treaty and try to say that the treaty means whatever they want. A country's legislator can pass a law saying that a treaty means this and that we will understand the treaty this way or that.

A key rule of international law is, however, that no state can extract itself from its international obligations through its internal law. So the redefinitions etc of a state internally are of no moment on the international plane.

One basis for jurisdiction of a court outside the United States is the principle of Universal Jurisdiction where a violation somewhere in the world of a treaty obligation or customary international law rule done by a country is considered an injury to the international legal system and can be subject to prosecution in any other country. Other bases are territoriality, victim's nationality, etc. There are many bases that might lead to a court outside of the United States taking jurisdiction over Delahunty just as the Germans are looking now.

What if acts done in the United States such as the Delahunty - Yoo memo are seen as having effects in another country (someone is tortured in Poland by someone acting on their analysis)? Poland can assert jurisdiction over those Americans if they show up in Poland or can seek their extradition.

Thus, the laws passed to exclude liability of interrogators and other officials in the US are of no moment on the international plane where there is a prosecution for a violation of international law.

Moreover, even if President Bush used his Constitutional pardon power to pardon every person who is alleged to have committed a war crime, those pardons would be of no moment and those persons would run the risk of prosecution under international law in any other country that properly asserted its jurisdiction over them.

Persons here are free to argue until they are blue in the face that what Delahunty did was not a problem. The point is that those arguments do not eliminate the view in international law that what he did was "possibly criminal" under broad consensus understandings of what international law rules state and how they are applied.

Please understand that interpretation of treaties is not just a game of looking at the words and saying what you think they say. Interpretation is a process that has been thought about in international law as expressed for written international agreements in the Vienna Convention on the Law of Treaties which specifies many things including rules on how to go about interpreting a treaty. The US has not signed the Vienna Convention on the Law of Treaties but has considered it to be authoritative and stating customary international law for a very long time.

A foreign court would take its own local approach to analyzing rules of international humanitarian law and international criminal law and apply those rules to the facts of the case to prosecute Delahunty. If his acts are considered aiding and abetting of torture and CID as a matter of international law as understood by that court, he can suffer the penalties of that court.

Similarly, if an international tribunal was to come into place it would look at the same rules but typically from a broader vision than one country's experience. That was Nuremberg, the International Criminal Tribunal for Yugoslavia or other tribunals like that.

So people can look at these very basic points of international law, look at the memo of Yoo-Delahunty in the context of the manner in which the United States has acted since 9/11 and see this memo as part of a common plan to torture and commit CID in violation of very fundamental rules of international law.

And based on that assessment by both Americans and non-Americans those Americans are free to argue that Delahunty is an inappropriate person to teach law students - because of the seriousness of the consequences considered that flow from his and others acts in putting in place the common plan.

And each of you can disagree with this and no doubt will disagree with it and say it is no big deal. But, all of this is a very big deal as we see the images on our televisions everyday and as we try to win "hearts and minds" and protect our country.

The persons who have understood this the best are the military who strenuously argued for us not to eliminate GC protections for persons captured. So also are the State Department types who foresaw the devastating effect on the United States as a matter of diplomacy and the simply erroneous flawed analysis that was being pushed by Yoo-Delahunty.

You are all free to minimize Delahunty's role. Several members of the faculty at Minnesota and those others signing on are disagreeing.

Mr. Delahunty may be a nice guy, but that is beside the point. His comments may be a draft but they were developed by him and put forward by him in the process of elaborating something that on the international plane might be understood as the common plan. He bears the burden of his words as I bear the burden of my words here.

And Americans can object to him and will object to him.

Now if some of what I have written above seems to be strange or alien in discussing international law ideas, this will tell those for whom those points are strange how weak the teaching of international law is in the American law schools. It is not U.S. foreign relations law (how America deals with the rest of the world under its Constitution).

And because this is not taught very well in our law schools, students come out ill-equipped to deal in certain aspects of the international plane, judges make horrendous decisions like the recent Texax Court of Criminal Appeals decision on Consular Relations and on and on. We attempt to make a virtue of our ignorance by writing laws that say our courts are not to look at foreign or international law interpretations which makes us less able to understand what international law requires of us as a matter of treaty or customary obligations.

All the stuff I have said is unremarkable and I would expect would be taught in a true international law class - not as a matter of left or right - but really as a conservative non radical broad consensus approach to international law.

If you want to see some broad consensus rules in this area go over to the American Society of International Law website and click on the ASIL Centennial Resolution presentation or the Insight of Mary-Ellen O'Connell that explains it. That is very basic international law on which there is an extremely broad consensus.

In fact, I will print the resolution here so you can read it:

Resolution Adopted
Under the procedure set forth in Article IX of the ASIL Constitution, the following resolution was adopted at the Annual General Meeting of the American Society of International Law on March 30, 2006.



The American Society of International Law, at its centennial annual meeting in Washington, DC, on March 30, 2006, Resolves:

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).

2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949, and other international law (jus in bello).

3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogation is permitted.

4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

7. All states should maintain security and liberty in a manner consistent with their international law obligations.

It is available and the O'Connell analysis and other analyses available at http://www.asil.org/events/am06/resolutions.html . I worked on that resolution which has also been adopted by the Association of the Bar of the City of New York this past August and I can assure you that this was not some tight race but rather the resolution was overwhelmingly adopted by ASIL members who are American and from around the world.

So please, feel free to defend Delahunty all you want, but there are so many who will respectfully disagree and will work with fire in their belly to not have this person spread his seriously flawed thinking to a further generation of law students. Sorry to be so long.

And we will try to patiently explain why we feel this way as we know others will. And we will also seek out fora in the world where these basic lessons do not have to be learned for the first time or relearned becase of denial and hope that they will exercise their sovereign authority to bring to justice persons who we think have aided and abetter the violation of some of the most basic rules of international law.

Hope this helps.

Best,
Ben
12.1.2006 7:12pm
J. F. Thomas (mail):
Thank you Benjamin for so rationally, eloquently and carefully explaining what I have trying to do for so long in my comments.

I fear for this country and the rule of law in this country when so many lawyers are so willing to throw away basic legal and human rights in the name of fighting the war on terrorism.
12.2.2006 9:21am
Anderson (mail) (www):
It's the inability or unwillingness to imagine other countries' p.o.v. that I find so stunning in all this.

If Iran captured some Americans &accused them of terrorism, and treated them the way we've treated Khalid Sheikh Mohammed &others, I don't think America would shrug and say "oh well, do what's best then" if Iran produced some legal memo that explained why its treatment of those people was consistent with Iranian law &therefore A-OK.

And yet we expect others to regard *us* that way. It's called "hubris."

Our fearless foes of Geneva grew up in a world where America was widely assumed, around the world, to be an exemplar of freedom &justice. They grew up in that world b/c our parents, etc. earned that reputation. (And spare me the "they've always hated us" nonsense, which Ronald Reagan would rip you a new one on, were he around to do so.)

Our own kids are going to grow up in a world with a very different view of America.
12.2.2006 11:23am
J. F. Thomas (mail):
To echo Anderson, look at the reaction to some posters' outrage that the Germans claim to have jurisdiction over Americans who have committed war crimes. Even though that is a full legal process with extensive legal rights we are just outraged that American officials could be charged in a German court with crimes against humanity. Yet we claim the right to go anywhere in the world, kidnap people and lock them up incommunicado without any process at all. And then even if all parties involved admit a mistake was made absolutely refuse to allow the aggrieved party to seek any redress because to reveal the details of his botched kidnapping and torture would compromise national security.
12.2.2006 11:54am
Christopher Cooke (mail):

The point is that those arguments do not eliminate the view in international law that what he did was "possibly criminal" under broad consensus understandings of what international law rules state and how they are applied.


This is really the key point in Mr. Davis' eloquently expressed explanation of the issue posed by the University of Minnesota's hiring of Mr. Delahunty. Contrary to Professor Bernstein's and others' postings, it doesn't matter how many US Supreme Court justices (in dissent) agreed with the views in his memo. The issue is one of "possibly criminal" under international law not US domestic law.

So, we can debate Hamdan, but that is really beside the point. If a German court or a French court were to conclude that various US officials violated international law, under precedents from the Nuremberg trials of german lawyers and judges, more than Mr. Rumsfeld might have reason to worry about being prosecuted.

To NY: I think you missed my point about the Bush Administration's seeking of protection from prosecution in the recent statute passed by the US Congress re treatment of detainees. It is that many in the Bush Administration (or the CIA) were plainly conscious that their actions with respect to secret "renditions" and "water-boarding" of suspected Al Qaeda members might be viewed as morally wrongful conduct by an another US administration, and could get them in trouble, in the US, under US laws (I would say it might be thought of as evidence of "consciousness of guilt"). The statute does not shield them from another country's prosecution, even if you think that prosecution might be baseless (I am curious, though, about whether you have any expertise under German or international law to make such an assessment). The US cannot pass a law that tells a German or French court what it can and cannot prosecute, just as they cannot pass laws that tell a US court what it can and cannot prosecute in the US.

But, that said, I doubt our leaders will face prosecution by the Germans or anyone in Europe. Obviously, such a prosecution would harm relations with the Bush administration. However much it says it admires an independent judiciary as a cornerstone of democracy, I think you would find the Bushies screaming that Merkel has to stop the ridiculous prosecution of its officials, if Rumsfeld were to be prosecuted in Germany.

And, I think Merkel and others in Europe might not like the precedent that would be set and worry it could be used against them by US courts. (Ironic, if so, because Germany, certainly has had its share of former leaders called to account for violations of international human rights law).

So, I think these types of "international" domestic prosecutions of international and human rights law will only be used against deposed leaders of much less powerful countries, such as Chile and Liberia, and only against defeated countries. In sum, Mr. Rumsfeld and Mr. Wolfowitz (and certainly Delahunty and Yoo) have little to worry about their conduct being closely examined by foreign criminal authorities because they were leaders of the US, not Serbia, Liberia or Chile or some other much less influential and/or defeated power.
12.2.2006 1:03pm
MnZ (mail):
So, I think these types of "international" domestic prosecutions of international and human rights law will only be used against deposed leaders of much less powerful countries, such as Chile and Liberia, and only against defeated countries. In sum, Mr. Rumsfeld and Mr. Wolfowitz (and certainly Delahunty and Yoo) have little to worry about their conduct being closely examined by foreign criminal authorities because they were leaders of the US, not Serbia, Liberia or Chile or some other much less influential and/or defeated power.


There is a certain irony about international law. It supposed to transcend international power. Yet, it is functionally based on international power.

Since international law can simply become an thinly-veiled expression of international power, I have always been skeptical about international law.
12.2.2006 2:35pm
Benjamin Davis (mail):
I understand that skepticism about international law and would just say that skepticism is also possible about internal law where the powerful can also be left immune. I do not think this is a defect only of international law, but a reality of power being unequally distributed.

International law's effect is not only through prosecutions in courts. It is also through the reactions of states to the actions of one state (called horizontal enforcement) that it finds its effect.

Might I suggest that prosecutions of persons who do things from powerful states would occur if people from those states and other states insisted on that. We do not insist on prosecution of US high level civilian authority or military generals in our country. We set it up to protect them. Even the legislature (in a kind of complicity - see the MCA and the Defense Authorization Act of 2006) will pass laws that try to use internal law to protect these persons from prosecution for possibly criminal violations of international law. And federal prosecutors hide behind prosecutorial discretion to not bring the relevant investigations and cases on these persons.

All this is masked in a national security and protection rhetoric which really I doubt is about us and is more about these folks covering their derrieres.

We can insist that we not do this when we do serious violations of international law. People tend to think these violations happen to others so what is the big deal, but I am more oriented to worry that the state might do what it does abroad to folks like me in the state if allowed to. After all, slavery and segregation are pretty eloquent reminders of just how far the US can go and for how long to treat people horribly.

It is the vigilance and insistence of people in the center that can, I believe, constrain the conduct of the United States and - in other powerful democratic states - constrain their conduct.

This should not be meant to say that we should not defend against our enemies. Of course we have to be eternally vigilant on that score. We just should try to not be animals and be willing to call our leaders on their actions when they act like animals. We are children of the enlightenment right? We are the world's last great hope, right? Well then our leaders ought to act like it and be called on it when they do stupid things.

Best,
Ben
12.2.2006 5:11pm
MnZ (mail):
Ben,

If your point is that the expansion of democracy and enlightened thinking would do more good than the spread of international law, I would agree with you.

An additional point, I would posit that ceteris paribus a leader of a democracy has less international power than a leader of a non-democratic country. This is because the leader of a democratic country is constrained by the will and needs of his or her citizens.
12.4.2006 12:43am