OLC Alums Support Delahunty:

Since several students and professors at the University of Minnesota expressed opposition to the appointment of Professor Robert Delahunty to teach constitutional law, others have expressed substantial support for the decision (or, at least, opposition to the opposition). In particular, I learned that a prominent group of Delahunty's former supervisors from the Justice Department's Office of Legal Counsel wrote to Minnesota's Deans in defense of Delahunty and the appointment. The text of the letter follows:

Dear Deans Charles and Morrison:

We write to defend Professor Robert Delahunty against unjustified attacks by members of your faculty. In a letter dated November 28, nine professors of the University of Minnesota Law School argue that Professor Delahunty is unfit to teach there because his work on a memo concerning the scope of the Geneva conventions shows a lack of legal ethics. We emphatically disagree. The memo at issue in no way seeks to justify torture, but addresses complex legal matters of the kind on which the Office of Legal Counsel traditionally opines. Nothing on its face suggests that it is either incompetent or insincere, and the nine professors offer no persuasive evidence to support their very serious charge of unethical behavior. The only specific issue on which they take issue with the memo is one that has divided the Supreme Court itself.

We are in a good position to evaluate Professor Delahunty’s work as an OLC lawyer. All of us were either Assistant Attorneys General in charge of the Office or Deputy Assistant Attorneys General with supervisory responsibilities. We represent different political parties and three different administrations. None of us has held any executive position in the current administration. We all share the view that Professor Delahunty is an excellent attorney who acted honorably and with distinction in public service. He always gave his sincere and independent advice. He went where his analysis led and he was unafraid to put that analysis in front of his superiors even if he knew that this was not the most politically palatable result. Those of us who teach at law schools would be pleased if Professor Delahunty taught a course at ours: we are sure that students would learn a great deal both from his intellect and his character.

Before turning to the substance of the nine professors’ claims, we should clarify what their letter obscures. The work of which they complain is a single memo, and the memo does not address issues relating to torture. As it makes clear in its second sentence, it considers an important but particular question: whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of al-Quaeda and the Taliban. The memo did not address the applicability of laws and treaties regarding torture to interrogation methods. It thus sensationalizes matters, quite inaccurately, to refer to this draft opinion as a “torture memo.”

Nor can Professor Delahunty be faulted for not addressing questions that were not put to him. OLC memos focus on discrete questions at the request of government clients, and civil servants have no responsibility for determining the questions that should be addressed. Moreover, the memo makes clear that it concerns only a legal question: it expressly declines to consider what policies should be adopted with respect to the detainees. This stance is wholly consistent with OLC’s mission of assessing legality and leaving policy decisions to other departments of the government.

The question the nine professors have raised concerns legal ethics, not the ultimate correctness of the legal views expressed. People often disagree about the content of law, particularly complex and rarely litigated matters like the ones the memo addresses. Some of the signers of this letter largely agree with the conclusions of the memo, others are uncertain, and still others disagree with at least some of them. But we are unanimous in believing that attacks on Professor Delahunty’s legal ethics in writing this memo are baseless.

We are frankly puzzled that a letter that makes such grave charges against an incoming colleague provides so little specific analysis about what reasoning in the forty page memo demonstrates a lack of legal ethics. The nine professors do impugn the memo’s conclusion that common article III of the Geneva Conventions does not apply to Al-Quaeda and Taliban detainees by observing that the Supreme Court has disagreed with that conclusion in its recent Hamdan decision. But a subsequent Supreme Court decision at variance with a legal opinion does not render that opinion unethical. More remarkably still the letter fails to acknowledge that three Justices of the Court accepted the government’s contention that common article III did not apply. Two did so in dissenting from the Supreme Court’s decision in Hamdan. Chief Justice Roberts (as well as Judge Randolph) did so in the appellate court decision which the Supreme Court reversed. This array hardly suggests that the memo’s conclusion about common Article III was without substantial basis in law. One presumes that the nine professors would not object to the ethics of these jurists if Minnesota invited one to teach.

Otherwise the letter of the nine professors offers no substantive analysis of the opinion. They are content to quote from remarks by an official of Amnesty International which also offer no substantive analysis, merely an unsupported suggestion that this memo may have contributed to torture. This kind of conclusory statement by an advocacy group does not provide a proper basis to charge a fellow law professor with a lapse of legal ethics.

Our concerns go beyond the charges in this letter, as reckless as they appear to be to us. Attorneys in OLC are called upon to render legal advice in complex and particularly sensitive matters. Of course, they must behave ethically. But the rest of us and especially those of us who are both lawyers and academics have obligations to those in public service as well, and certainly not to charge them with derelictions of legal ethics without the most substantial analysis and care. Otherwise fine attorneys, particularly those who may hope for subsequent career in academics, may be deterred from giving advice that they recognize may be unpopular in the academy or, for that matter, with the public at large.

We therefore ask that you continue to extend your invitation to Professor Delahunty to teach and welcome him as a colleague. We are confident that the entire Minnesota community will benefit from his fine colleagueship and find him a serious and substantial interlocutor even on matters on which they disagree.

John E. Barry
Partner
Wiley, Rein and Fielding

Douglas R. Cox
Partner
Gibson Dunn

John C. Harrison
David Lurton Massee, Jr., Professor
University of Virginia Law School

Douglas W. Kmiec
Caruso Family Chair in Constitutional Law
Pepperdine University School of Law

John O. McGinnis
Professor of Law
Northwestern University Law School

H. Jefferson Powell
Professor of Law
Duke University Law School

Christopher H. Schroeder
Charles S. Murphy Professor of Law and Public Policy Studies
Duke University Law School

[Note: I've omitted two footnote citations to the Supreme Court and D.C. Circuit's Hamdan decisions from the letter. I am also responsible for the links added to the text.]

I have also learned that there is an online "counter petition" at petitiononline.com, signed by Minnesota law students and alumni, among others. At the time of this posting, it has 143 signatures — a significant number, but less than the number of students and others who have signed petitions against Delahunty's appointment.

What is the consequence of this support for Delahunty? It is hard to tell. This Minnesota Daily story from December suggested that the school's administration was not plannig to retract the offer. It quotes one of Minnesota's Deans stressing the importance of open academic debate, but also says the administrative difficulty of retracting the offer was a rationale given to some objecting students. I have yet to find more recent reporting on the matter.

As noted before, this story has an interesting connection to the VC, as Delahunty was asked to teach the first year section of Constitutional Law traditionally taught by co-Conspirator Dale Carpenter, who will be on leave.

UPDATE: Given the course of the comment thread, I would request that folks who wish to comment on this post please try and focus on the substance of the post and, in particular, the Delahunty controversy and the letter presented above. The signatories are an ideologically diverse lot, each with impressive credentials. Whether or not one likes their reasoning or conclusions, I would think the substance of their letter can be substantively addressed without violating Godwin's Law or engaging in ad hominems.