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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.

Anderson (mail) (www):
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.

How precious. It's like advising the Reich on whether the homes of deported Jews can be legally appropriated by the State (or, if you prefer, on whether the U.S. gov't can confiscate the property of Japanese-Americans sent to camps). "We don't do policy, just law" -- as if, at the OLC's level, the two were distinct.

Whatever responsibility "civil servants" may have (and the names of some notorious "civil servants" should spring to ming here), Delahunty did not stop being an *attorney*, and he had an attorney's duty to counsel his client on what his client needed to hear, regardless of limiting instructions.

The fact that Delahunty couldn't grasp that, and apparently still can't, is reason enough to keep him away from law students.
1.11.2007 9:10am
wm13:
Per Godwin's Law (or maybe one of its corollaries), after Anderson's comment, there will be no useful discussion on this thread.
1.11.2007 9:23am
WHOI Jacket:
Good start today, we get the Nazi analogy on the first post.

Progress, people.
1.11.2007 9:27am
Justin (mail):
There never was too much of a chance of useful discussion. This letter and their supporters are talking past the critics, not at them. The critics, in turn, are taking their anger out at an OLC that as a group was derelict in its duty to ADVISE on one individual who may or may not have been a significant part of that duty.

Since this letter is the issue of the post, let me say that "substantial basis in the law" is akin to a Rule 11 standard, which is a) adversarial in nature, and b) far below what we would expect from someone of Delhunty's abilities - and with the names on that letter, you would expect them to be more careful to delineate what they're actually talking about.

Furthermore, let us remember the actual, deserved or not, criticism of Delhunty, is not that "he was so dumb he failed to predict Hamden," but "he was smart enough to predict Hamden, and certainly smart enough to realize that whether he agreed with it or not it was unlikely to get 5 votes and/or avoid Supreme Court review, but he did not even bother to address or reserve the issue at all."

Finally, this is hardly my issue, but I recall others saying that his reasoning in his memo was far more extreme than the dissenters in Hamden, and none of them adopted his view.
1.11.2007 9:47am
JunkYardLawDog (mail):
Anderson,

Usually your posts are a bit more substantive than the one above. Its clear, like the professors and left wingers opposed to this appointment, that politics not legal ethics is your concern.

I don't want unelected government lawyers trying to counsel elected officials on policy when such counsel is uninvited. They are not counseling an unsophisticated client alone and in the middle of a life or business crisis, and attempts at trying to force this situation into that mold are patently ridiculous. Almost as ridiculous and inapplicable as your NAZI and WWII internment camp analogies that attempt to place the position of the wholly innocent equivalent to the position of a dangerous and homicidal enemy that has declared war on the USA and has already carried out attacks on our soil in furtherance of their murderous war objectives. I must have missed those headlines from the past where the Jews declared war on Germany and blew up those buildings in Munich killing 1000s. I'm sure Amnesty International has record of these jewish atrocities.

In this country we elect our policy makers, and I for one have had my fill of unelected lawyers trying to make policy when it is not their job to so do. I wholly reject the attempts of the left wing moonbats who teach at our universities from using any trumped up excuse they can manufacture and lie about to try and assassinate another's character solely because that person's politics may not agree with left wing moonbat orthodoxy.

Says the "Dog"
1.11.2007 9:50am
Justin (mail):
Okay, I just read the excerpt from the memo. Its failure to consider counterarguments and its arguments in the alternative is substantially inappropriate for an advisory memo. Its acceptance of Yoo's theory of the executive carte blanc is, to put it bluntly, malpractice.

However, I suspect John Yoo is far more to blame than Professor Delhunty.
1.11.2007 9:53am
Justin (mail):
Junkyardlawdog, technically, its "icebat" since they are from Minnesota. Enjoy the irony of your post, though. I assume its intentional.
1.11.2007 9:54am
JunkYardLawDog (mail):
To me the no substance letter of the 9 professors that attacks another's character in such a serious but unsupported manner would be just cause for questioning the fitness and character of the 9 writers to teach in High School much less in law school. If that letter which they signed is an indication of what these so called professors think is thoughtful analysis supported by meritorious facts and research, then they are not qualified to teach law school.

What does this letter teach the students of these 9 professors? That its OK to try and muzzle the speech and careers of anyone who doesn't agree with their left wing orthodoxy by any means possible? Including the means of making wholly unsupported attempts at destroying the character of a person. That "winning" the war of thought and speech suppression is an end that justifies any means of attack no matter how false, unsupported, or unfair those means of attack may be?

I mean really. Anybody who cites Amnesty International, a wholly political and fatally biased organization, for anything is incompetent in my humble opinion.


Says the "Dog"
1.11.2007 10:00am
Anderson (mail) (www):
Folks, I have read up a fair bit on Nazi Germany, and continue to do so. Even moreso than the the horrors of Stalin's regime, it presents disturbing questions about our own country and our own times. How did Germany come to accept Nazi rule? How could Nazi bureaucrats detach themselves from any considerations of morality in carrying out monstrous policies? And so on.

I think the purpose of studying history is to learn from it; doubtless the Santayana quote pops into your mind as I say that.

The justifications that I quoted above are *indistinguishable* from how the Nazi lawyers justified their wicked acts. (We need that book, don't we -- The Nazi Lawyers, a counterpart to Lifton's The Nazi Doctors.)

So instead of bleating about Godwin's So-Called Law as a substitute for rational thought, how about distinguishing the reasoning I've quoted? How about trying to explain how a basic sense of legal ethics is compatible with what Delahunty and Yoo did?
1.11.2007 10:06am
Justin (mail):
I'll say one last thing on the subject. I agree with Professor Dorf, that you cannot divorce the freedom of speech claim from the legal merits of the letter. Regardless of the OLC alums claims, IF (and this is a big IF) the letter is write, than Delahunty has committed war crimes and crimes against humanity, though nowhere near to the extent of, say, Hitler's lawyers.

If his actions (not "ideas") constituted such, then a decision to not hire, and indeed a decision to terminate even a tenured professor, would seem to be easily justifiable in my view.
1.11.2007 10:12am
Justin (mail):
gah, did I just say "write" instead of "right"?

I need to stop doing two things at once. Gahhhhhh.
1.11.2007 10:14am
wm13:
Anderson: Um, okay, here goes. The Bush administration isn't embarked on a campaign of genocidal murder.

Now it's your turn to explain why that particular difference makes no difference.

Boy, is this going to be productive.
1.11.2007 10:16am
Anderson (mail) (www):
Hm. Went to Amazon to make sure no one had written The Nazi Lawyers, and found this:

The U.S. government lawyers that have brought us these policies on torture are among the best and the brightest; good lawyers doing intensive legal analysis. One of the questions we need to answer, or begin to answer, is "To what end?" Does the work of the government lawyers who use their talents to build a legal facade for torture differ in any real way from the work of the Nazi lawyers who used their talents to build a legal facade for Nazi racism?

I believe that the American bar has allowed itself to drift into an ethical climate where lawyers believe that when they are called upon to advise a client -- whether that client is the President of the United States or the President of Enron -- their role is to construct the kind of adversary justification for questionable behavior they would make if their client had been indicted. * * * Lawyers seem to forget that, instead of making arguments at the end of the process, they are making their arguments at the beginning of the process in order to justify the behavior. Is there something that we are doing in American law schools that is allowing the best and the brightest of our profession to drift into a situation where they think that all they have to do is find an argument that will justify their client's goal, that will keep their client out of jail? This question transcends any of the other things we are doing as teachers. It addresses the very soul of the legal profession.


Burt Neuborne, in "Torture: The Road to Abu Ghraib and Beyond" (panel discussion), p. 14 of The Torture Debate in America, ed. Karen J. Greenberg.

But, hey! he said "Nazi!" So we can ignore him.

I would like to hear Mr. Delahunty address the arguments of Mr. Neuborne and others. Has he? Or does he just sit back and let people trot out Nuremberg-style arguments for him?
1.11.2007 10:26am
Steve:
Torture is far less serious than genocidal murder, but unless you intend to argue that torture isn't a serious moral wrong, the issue is strictly one of degree. It's not as though President Bush was looking for a creative tax shelter here.
1.11.2007 10:27am
Anderson (mail) (www):
Oh, okay, wm13. So if you're not advising your client on how to commit genocide, then the sky's the limit?

Does the word "principle" mean anything?

Are we under the impression that the Nazis didn't do anything bad *besides* genocide? I mean, sure, that would be # 1, but it doesn't get them off the hook for the Nuremberg laws, for torture, or for any of the other very bad things they did.
1.11.2007 10:28am
J. F. Thomas (mail):
Anderson: Um, okay, here goes. The Bush administration isn't embarked on a campaign of genocidal murder.

Neither were the Nazis initially. The Nuremburg Laws initially just marginalized the Jews. I will note that while the Administration staunchly defends Islam, many prominent rightwing blogs and bloggers (e.g. LGF, Free Republic, Michelle Malkin--aka "our lady of the concentration camps") frequently advocate methods up to and including genocide to deal with the problem of radical Islam (and often it is implied that all Islam is radical Islam). Other bloggers like Glenn Reynolds are more circumspect, but seem resigned to the fact that genocide will be a necessary, but regrettable, "final solution" to the "Islamic Question." Even elected officials have floated ideas like preventing any further immigration of Muslims.
1.11.2007 10:28am
Anderson (mail) (www):
Shorter Anderson: what Steve said.
1.11.2007 10:29am
Visitor Again:
Never mind, Anderson. History and its lessons are irrelevant to these people and their supporters. That there are lessons to be learned in how power can be abused from the Nazi era in Germany--including how lawyers and judges were coopted into justifying crimes against humanity--is beyond their ken. It's far easier for them to invoke Godwin's Law to avoid discussion; it's cut and run. They've taken nothing from the Viet Nam War or Watergate, either.

In fact, they seem bent on doing precisely that which led to the Viet Nam and Watergate debacles. It's not surprising given the identity of some of those who have been in charge--Cheney and Rumsfeld, who've been fighting to establish absolute presidential power--freed from any of the limitations the Viet Nam and Watergate disasters led to-- ever since they served under Gerald Ford.
1.11.2007 10:31am
wm13:
Well, let's turn to something more productive. I promise, if one of the commentators here will write a 10,000 word essay on how the racial classifications utilized in state university affirmative action programs are different from the Nuremberg racial classifications, then I will write a 10,000 word essay explaining how Delahunty is different from Himmler's lawyer. But you have to go first. And remember, it's not an answer that the universities are not engaged in genocide, because neither were the Nazis, at first.

Now is this a productive way to discuss affirmative action?
1.11.2007 10:44am
Kovarsky (mail):
Please stop with the meta-discussion about nazism and godwin's. It's so boring and tired.

As for the post, I think it's a tough question.

(1) The memo isn't malpractice. It's just not. I'm not a malpractice lawyer but I see plenty of ineffective assistance of counsel claims, and this is nowhere in the ballpark of legally cognizable as malpractice. I'm not even sure it's wrong. I find the government's exercise of this particular power nauseating, but I'm not sure he doesn't have the authority to do it. Of the executive power overreaches, this one strikes me as one of the more legally justifiable. This isn't "the torture memo" that everyone has in mind.

(2) By the same token, JunkYard, etc. are understating the Professors' case. Their point seems to be that Minny has an academic niche in international law and that the codeines (co-deans) may not have been aware that the appointment jeopardizes that standing in that part of the legal community. That also strikes me as a reasonable, if somewhat pretextual, concern.

(3) I happen to be an extremist when it comes to academic hiring issues, so this is easy for me. Unless he really was some sort of war criminal, which he is not, and unless we have some reason that he is going to teach a criminal approach to constitutional law, which we don't, I can't see any reason, consistent with an academic commitment to open debate, for not hiring the man.

I think the issue might be different if he were teaching a "military ethics" course or something like that, but he's teaching con law. I would bet the farm that he teaches the introduction to article II just like every other con law professor in the country.
1.11.2007 10:45am
John Steele (mail):
I want to comment on one aspect of the memo: whether the authors discussed only law or whether they also added some policy discussion.

Although the writers of that memo were not asked to "do policy," and twice expressly disclaimed that task, starting at about page 26 of the memo they lay out in gredat detail a history of all the times the US decided as a matter of policy to abide by the Convention even when it didn't apply. It's unmistakable. The memo does offer policy considerations on that issue, even though one wouldn't think so if one just read the popular accounts of its contents.

That issue was also revisited in the next stage, when Gonzales and Powell drafted competing memos on the issue of whether Bush should reconsider his initial decision to adopt the Yoo-Delahunty approach. Those memos, and especially Gonzales's, lay out all the policy issues. Powell's memo is, in my view, a masterly analysis of what should have been done, but, to return to the original point, the Yoo-Delahunty memo does recount the historical policy of abiding by the Convention even when it didn't apply (such as when it was still in draft form).

The memo does raise this question: if the OLC was able to reference pivotal policy questions in one memo, why not also in the subsequent "torture memos," especially since the moral reaction of various actors (US courts, foreign governments, etc.) would be part of the legal mix?

Consider this sentence from Model Rule of Professional Conduct 2.1: "In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." True, it's only a "may" and not a "must," but consider also this sentence from the comments: "Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant."
1.11.2007 10:59am
J. F. Thomas (mail):
Well, let's turn to something more productive. I promise, if one of the commentators here will write a 10,000 word essay on how the racial classifications utilized in state university affirmative action programs are different from the Nuremberg racial classifications

I don't have to write 10,000 words to tell you how they are different. And if you don't know the difference you are simply an idiot. First, and most importantly, all racial classifications in all affirmative action programs are completely based on self identification. When presented with the form you can select any classification you want to identify yourself as (except Native American, you have to be a registered member of a federally recognized tribe to identify yourself as one of those). And as an added bonus, you can change your racial classification at your whim and there is absolutely nothing anybody can do about it.

If you leave the form blank (which is also an option) somewhere along the line someone will fill in a racial classification for you, probably based on your name (since they probably won't have a picture to look at). If your name is Kelly Lee they will probably have to flip a coin as to whether you are Asian or White (unless of course they are short of one racial classification or the other, in which case you will be put into that category). On the other hand if your name is Mike Perez you will certainly be classified as Hispanic, even if you don't speak a word of Spanish and your family is from St. Bernard Parish, LA, which means it has been in this country since the 1740s and came from the Canary Islands and you are definitely white.
1.11.2007 11:01am
james (mail):
JunkYardLawDog and Anderson are dealing with two completely separate issues. Anderson is concerned with effect of allowing this individual to teach law school. JunkYardLawDog is concerned with the effect of giving teachers with outrageous left leaning views a pass while restricting the outrageous right leaning views. Ideally US universities should not want Professors who advocate for torture just like they should not want Professors who advocate for terrorism or the death of US soldiers.
1.11.2007 11:04am
Anderson (mail) (www):
Oh my goodness. Now affirmative action in college admissions is supposed to be comparable to the Nuremberg Laws?

Because, you know, the disenfranchisement, etc. of Jewish Germans was necessary to redress the effects of centuries of slavery imposed by Jews in Germany upon non-Jewish Germans. Why, you can still tour the plantation houses of Bavaria today. And we can all remember how humiliated non-Jewish Germans were when they had to yield coach seats to Jews, or when they saw the victims of Jewish lynchings of non-Jewish Germans.
1.11.2007 11:09am
Anderson (mail) (www):
just like they should not want Professors who advocate for terrorism or the death of US soldiers.

I'm with you, James, but which law profs are those?
1.11.2007 11:18am
Duncan Frissell (mail):
Since it's well established that communists are welcome to teach at all US law schools, what's the problem with a seemingly moderate employee of a middle-of-the-road American administration teaching law?

GWB is M-O-T-R because he got half the vote, locked up only 2 US citizens w/o trial (vs 80K like FDR, 200K like Lincoln, thousands like Demoncat Party founder Andrew Jackson), spends like a drunken sailor on social programs (Medicare, African Foreign Aid, No Child's Behind Left, etc), and is a dedicated evirnomentalist (created world's largest Marine Reverve). Not too conservative.
1.11.2007 11:19am
MnZ (mail):
Ideally US universities should not want Professors who advocate for torture just like they should not want Professors who advocate for terrorism or the death of US soldiers.


US universities have plenty of the latter. Let's keep in mind that Delahunty is only being appointed to a visiting professorship. Furthermore, he does not advocate torture.

US universities have plenty of permanent professors on the Radical Left, including those who deny the horrors of Communism, advocate bloody revolutions, and demonize their fellow citizens. Nevertheless, few people bat an eyelash at it. However, if someone takes the position that the Geneva Conventions do not extend to terrorists, all hell breaks loose.

How about some proportionality?
1.11.2007 11:28am
Justin (mail):
Member of Tribe Registered?

Oh no, he's JEWISH????? We don't want him!!! Take him back!!!!
1.11.2007 11:30am
Justin (mail):
btw, I say that as a Jew, in case there's any absurd misunderstanding.
1.11.2007 11:30am
Anderson (mail) (www):
btw, I say that as a Jew, in case there's any absurd misunderstanding.

Ach, you self-hating Jews!... ;)

(There's a half-remembered Woody Allen joke there, about not letting amateurs hate Jews when the Jews are so much better at it themselves ....)
1.11.2007 11:36am
J. F. Thomas (mail):
However, if someone takes the position that the Geneva Conventions do not extend to terrorists, all hell breaks loose.

Oh yeah, "all hell breaks loose". People sign a petition! Oh the horror! What's next? dogs and cats living together, law students burning down the ROTC building, rioting in the streets?

Last time I checked the 1st amendment was still fully in force.

Now lets talk about proportionality.
1.11.2007 12:18pm
Anderson (mail) (www):
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.

"The valid similarity between their reasoning and that of the Nazi lawyers should be ignored so that a substantive discussion may take place."

[Insert that little asterisk-like blip of incomprehension from the comic pages here.]

The Neuborne passage that I quoted above makes a perfectly substantive point, one that doesn't appear to have been addressed.
1.11.2007 12:28pm
Jonathan H. Adler (mail) (www):
Anderson --

Your later post with the Neuborne passage was signifcantly more substantive and on-point than your initial post and some of what followed. Had the discussion started and remained on that level, I would not have posted the update.

JHA
1.11.2007 12:38pm
Davide:
Anderson, the Burt Neuborne point is not relevant here.

Whether one agrees with Delahunty's analysis or not, three U.S. Supreme Court Justices did so. This should per se mean that Delahunty's analysis was not so poor/contrived as to be offered simply to offer a way for an unscrupulous client to avoid jail.

As I recall, the key abortion rights case of Planned Parenthood v. Casey was supported, in its full opinion, by no more than a three-judge plurality. Surely three justices' support there was persuasive. I see no reason it should be accorded less weight here.

One may well disagree with Delahunty, and disagree with the analysis. But that is not malpractice.

It would further seem apparent that anyone who can win three justices' votes in a contested Supreme Court case has a very reasonable legal basis. Eminent legal scholars and top attorneys frequently lose in the Supreme Court 9-0. Credit should be given where it is due.
1.11.2007 12:43pm
David M. Nieporent (www):
Anderson, were you under the impression that affirmative action had anything to do with slavery? You might want to rethink that ridiculous claim.
1.11.2007 12:46pm
Anderson (mail) (www):
Uh, Professor Adler, it's the *same point*. I was just quoting some guy in a book the second time.

I cannot begin to imagine how we would discuss the ethical issues of the "torture memos" (or, as the correspondents you quote might prefer, the "Geneva memos") without reference to the principles upon which various German lawyers were sentenced at Nuremberg.

See also Scott Horton's post, "When Lawyers Are War Criminals."

In short, to exclude comparisons &analogies with what Nazi lawyers did, is to prejudge the issue in Delahunty's favor. You should not be too surprised if some of us are unwilling to join you in that.
1.11.2007 12:48pm
Mark Field (mail):
I think the update was uncalled-for and wrong on the merits. The sad fact is that Nazi lawyers were complicit in many of that regime's crimes, not just the Final Solution. As long as that distinction is clear -- and Anderson made it expressly -- the comparison is legitimate.

If people prefer other analogies, then they should suggest them. Stalinist show trials? Japanese internment? Pick the one you like best and let's discuss it. The falsetto screams about "Godwin's Law" were designed to cut off discussion, not to re-direct it to some purportedly more "reasonable" ground.
1.11.2007 12:51pm
Anderson (mail) (www):
Whether one agrees with Delahunty's analysis or not, three U.S. Supreme Court Justices did so.

Right. Because, as we all know, judges cannot possibly violate international law, or be held accountable for doing so.
1.11.2007 12:52pm
Chris Fulmer:
Steele points out:

Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.

This is certainly true, but we should examine why it's in the MRPC. I suggest that its presence is intended to allow lawyers to offer non-legal advice to clients who may not be aware of all the facets of an issue. This is certainly NOT the case here -- Suggesting that the OLC should give policy advice is a little like an attorney giving math advice to his accountant client. Recognize the position that OLC attorneys are in -- they are supposed to be non-political. If people begin to think that OLC's legal advice is tainted by policy matters, they will stop going to OLC.
1.11.2007 1:04pm
JosephSlater (mail):
I'm assuming the update cautioning against irrelevant ad hominems is the only reason we haven't been give a list of all the "communist" law professors running rampant.
1.11.2007 1:12pm
Jonathan H. Adler (mail) (www):
Anderson --

The update was not solely directed at you. By the time the comment thread got to whether one should compare affirmative action to the Nuremberg laws, I wanted to nudge things back in a more substantive direction. If one is going to invoke Nazi comparisons, and wants to have a productive exchange, I think there should be some effort to support the analogy. I think the Neuborne passage did this more than your initial post.

Mark Field --

I think other analogies would be more productive even if only because they are more likely to prompt reflection and thoughtful responses.

JHA
1.11.2007 1:13pm
David M. Nieporent (www):
Okay, I went back and re-read the memo. Anybody who claims this is "malpractice" doesn't know what the term means. Delahunty clearly did nothing wrong, morally or legally, with this memo. It did not advise the president to do anything illegal or immoral. It provided dispassionate legal analysis about a legal issue.
1.11.2007 1:14pm
Mark Field (mail):

I think other analogies would be more productive even if only because they are more likely to prompt reflection and thoughtful responses.


I agree with this.
1.11.2007 1:18pm
AnonLawStudent:
Anderson:

Beyond Godwin's Law, the problem is that you (like many, particularly human rights activists) assert that a given action is a "violation of international law" without pointing out exactly what "law" is being violated. Just because you happen to disagree with something doesn't make it a "war crime." The entire point of the memo was to determine whether ACTUAL international law did, in fact, apply. As a practical matter, international agreements governing warfare, freedom of the seas, or territorial integrity are really irrelevant (and not international "law") if the world's leading military powers (e.g. the U.S.) don't apply them, regardless of how many European nations or third world statelets sign on.
1.11.2007 1:29pm
David W Drake (mail):
Anderson-

I concur with Neuborne's basic point that attorneys (I suspect it goes deeper than just today's attorneys) try to construct the best possible legal case for the actions our clients want to take. I don't really see anything unethical or illegal about that, unless the opinion is just flat out contrary to the law. I do not believe this memo is flatly contrary to the law AS IT WAS AT THE TIME THAT THE MEMO WAS WRITTEN. As repeatedly pointed out, three SCOTUS Justices reached the same conclusion. That seems to me persuasive evidence that the memo had something to recommend it and was not, as are many recent tax shelter opinions, for example, simply made up out of whole cloth.

Suppose a majority on SCOTUS had agreed with the conclusion of the memo on Common Article 3. Would that have changed your opinion?

Or would you say that that lawyers have a responsibility not to cooperate with "torture" (which is NOT what the memo is about) and with your and Mr. Neuborne's conception of the rights of illegal enemy combatants REGARDLESS OF WHAT THE LAW IS and to give a contrary legal opinion or indeed to cooperate in any way is unethical?

If so, I would be interested in knowing exactly what ethical rules the memo violates. I read the faculty letter and it refers to the opinions of commentators and an editorial comment but fails to cite the Canons or Standards or Rules of Ethics applicable to Messrs Yoo and Delahunty. Which ethical rule is violated by this memo?
1.11.2007 1:32pm
David W Drake (mail):
Anderson--

Your comment on the Judges Trial (appearing after I had begun work on the comment above) makes me think you concur that the Memo would have been unethical even if SCOTUS had decided it was right Right?
1.11.2007 1:35pm
Mark Field (mail):

Suppose a majority on SCOTUS had agreed with the conclusion of the memo on Common Article 3. Would that have changed your opinion?


A majority of the Supreme Court did agree that (a) blacks could not be citizens, and (b) the Missouri Compromise was unconstitutional. Those conclusions were wrong and the first, at least, was unethical. I assume that some one on the opposite side would say the equivalent of Roe v. Wade. Approval by the Court does not immunize an argument.
1.11.2007 1:46pm
A.S.:
I assume that some one on the opposite side would say the equivalent of Roe v. Wade.

In other words, calling Harry Blackmun a Nazi is perfectly legitimate! Any lawyer who advises that abortion is legal is just the same as a lawyer "advising the Reich" that "the homes of deported Jews can be legally appropriated by the State".

No. No reason to invoke Godwin's Law in this discussion. It's all perfectly fine.
1.11.2007 1:54pm
JunkYardLawDog (mail):
To all the supporters of the Nazi analogies: None of you have addressed how an analogy that places the wholly innocent Jews equal to the position of members of Al Qaeda who declared war on this country officially and publicly and then proceeded to mount various attacks on our country and its citizens killing many thousands of wholly innocent USA civilians and destroying Trillions of dollars in property?

You make analogies that are based upon the premise Jews in Nazi Germany = Al Qaeda today. Your analogy and argument cease to have any merit at this point unless you can explain how it is that Jews = Al Qaeda is applicable.

Finally, there is no torture. This isn't a torture memo and there has never been a torture memo. College hazing pranks like those at Abu Ghraib, while regretable are NOT torture. Being made to stand on a box is NOT torture. Further, waterboarding is NOT torture in my humble opinion because there is no permanent physical damage. Torture is cutting off ears, fingers, dipping in acid, etc. We haven't and don't do such things.

Get a frickin grip ok. People who are sentenced to death aren't entitled to an absolutely pain free death. Innocent people dying of natural causes don't get a pain free death. Likewise many of you here waxing on how this or that is torture or Nazi's or genocide or whatever ridiculous exaggeration suits your need to suppress the thoughts and speech of others are just seeking to apply the same kinds of ridiculous and irrational standards to the conduct of war against a NON-INNOCENT enemy (unlike the Jews in Nazi Germany that you keep saying are equivalent to our enemy Al Qaeda).

GMAFB before I throw up and go stand on a box with panties on my head (Oh the horrors!!!!).

Says the "Dog"
1.11.2007 1:56pm
Pantapon Rose (mail):
Doesn't the fact that 3 Supreme Court Justices agreed with him indicate he should be able to teach? As the letter stated, the school would presumably allow those judges to teach a class, so why not him?
1.11.2007 1:59pm
Witness (mail):
Why all the uproar over the comments? Brian Leiter thinks they are actually better than usual: "Some of the comments [on the Delahunty/OLC post] at the Volokh site are also actually worth reading, which is rare."
1.11.2007 2:08pm
John Steele (mail):
Chris Fulmer,

My main point is this: the OLC memo does in fact have an unmistakable discussion of an unbroken string of policy decisions over the decades that the US will live up to the Convention even when it doesn't apply.

Please note that I am not critiquing the Yoo-Delahunty memo for omitting policy. Nor am I making a normative argument that the OLC should have discussed policy when in fact it did not. I am making a descriptive argument that it does contain policy references, even though it twice disclaims the role of providing a policy analysis. I am also making the argument that there's nothing wrong, ethically or legally, with how Delahunty handled that policy piece in the memo. They handled the issue with some delicacy, in that they said, in essence, "although we weren't asked for policy and we don't provide it, it's important to note the long history of how the central policy decision has always been resolved on this issue." I think that was an appropriate way to handle it.

By the way, when you read the Frontline interview with John Yoo you get the impression that this first memo was written with significant input from military lawyers. It's somewhat speculative on my part, but I could see why they may have wanted to include the discussion of policy history, as the military has traditionally treated the Convention as sacrosanct. More speculation: the later "torture memos" were written with a less wide ranging set of inputs, and that omission shows in the work product.

You do raise an interesting point about the purpose of the rule. Comment [2], which I quoted, deals with situations where practical considerations, such as effects on third persons, are predominant. I find it reasonable to conclude that the Yoo-Delahunty memo and the subsequent "torture memos" fall into that category, regardless of the sophistication of the client.

Comment [3] resonates with your point. It deals with a client's request for strictly technical advice, and it distinguishes between experienced and inexperienced clients. I don't see that Comment [3] as being pivotal here. The OLC twice noted that it was not being asked for policy advice, and its fair to conclude that the "client" was not a first time user of legal services. So the comment suggests that, in such cases, purely technical advice could have been given.

But as I've said, the memo does contain a lengthy section on the history of how the central policy decision had been handled in the past. So, there's no violation of Comment [3] here. That is, I don't think one can fairly conclude that (i) the OLC erroneously abided by a request from an inexperienced client to provide purely technical advice, or (ii) improperly ignored an experienced client's request for purely technical legal advice.
1.11.2007 2:26pm
NickM (mail) (www):
Anderson - Neuborne asks how we drifted into this situation. We didn't drift. We set sail full speed ahead centuries ago, when the duty of an attorney for zealous representation was established in American law.

Consider the extent of an attorney's duty to a client.
Until July 1, 2004, California law did not even permit an attorney to reveal (except under subpoena) a client confidence consisting of the client's plans to murder someone (I had occasion to research this issue after the bill had passed but before it took effect.). Now, it has joined 37 other states in allowing, but not requiring, an attorney to make such a disclosure (the other 12 states mandate it). That's 3/4 of the country that gives a free pass, by law, to attorneys acting in a way that most people would regard as monstrous.

It is not law schools asking attorneys to put aside personal feelings and act as devoted agents of the client, it is the states and federal government, and they have asked this since they began regulating attorney conduct.

Nick
1.11.2007 3:15pm
Mark Field (mail):

In other words, calling Harry Blackmun a Nazi is perfectly legitimate! Any lawyer who advises that abortion is legal is just the same as a lawyer "advising the Reich" that "the homes of deported Jews can be legally appropriated by the State".


This misses the point on several levels.

First, the comment I made, which you quoted, referred to the Dred Scott decision as "unethical". I made no comparison to the Nazis, nor have I done so in any post here that I can remember. I deliberately switched the issue to one familiar from US history in order to make the point without having the distraction of "Godwin's Law" arguments; I indicated above my agreement with Prof. Adler on that score.

Second, my discussion previously of the validity of Anderson's comparison -- a discussion separate and distinct from my point which you quoted -- specifically excepted the Final Solution, yet your response raises it anyway.

Third, such accusations against Justice Blackmun are, in fact, common in some circles.

Fourth, someone who strongly believes that life begins at conception might logically (though in my opinion wrongly) compare abortion to the Holocaust. Whether that would be useful in a discussion is another story.
1.11.2007 3:21pm
JunkYardLawDog (mail):
Nick


It is not law schools asking attorneys to put aside personal feelings and act as devoted agents of the client, it is the states and federal government, and they have asked this since they began regulating attorney conduct.



By and large the States and federal government enact only the lawyer regulations the lawyers through their bar associations want enacted. Tort reform possibly, but not assuredly, an exception.

Says the "Dog"
1.11.2007 3:24pm
John Steele (mail):
Nick M,

Please note that the notion of "zealous representation within the bounds of law," has long been cabined under the official rules.

More pertinently, when lawyers are not litigating but rather are giving advice as counselors, the ethics rules governing litigators do not apply. I'm not saying that your comment makes the very common error of assuming that the litigator's rules always apply to all lawyers -- when they don't. But it's very easy for people to miss the fact that there are four sub-roles for lawyers representing clients: litigator, evaluator, counselor, and negotiator. Each sub-role has its own rules. If one wants to evaluate the ethics of the OLC memos, one needs to analyze the ethics of the counselor sub-role, which are found for the most part in Model Rule 2.1.

For articles analyzing the OLC memos in that context, there are: David Luban's article in Slate; articles by Kathleen Clark, Brad Wendel, and several others in the academic literature; and an exchange of view between Stephen Gillers and some OLC lawyers in The American Lawyer.
1.11.2007 3:36pm
Anderson (mail) (www):
Brian Leiter linked a discussion by Brad Wendel that is available online.

To the extent the objection to Delahunty is based on his demonstrated lack of competence as a lawyer (or, more likely, his willingness to disregard his professional obligations at the behest of his employer), I don't see the academic freedom issue. Schools routinely refuse to hire people on the entry-level or lateral market, or engage them as visitors, when their scholarly work is judged to be inadequate by the standards of legal scholarship. Those standards are things like persuasiveness, thoroughness of research and discussion of sources, balanced treatment of opposing arguments, and overall reasonableness. All of these things are lacking in the torture memos.

Includes a brief comment thread with some substantial debate.
1.11.2007 4:22pm
Jonathan H. Adler (mail) (www):
Anderson --

I linked to this as well in one of my prior posts on this subject.

JHA
1.11.2007 4:27pm
Anderson (mail) (www):
So you did. I forgot there were the prior-post links at the end of your post -- a useful resource, when one remembers to use 'em ...
1.11.2007 4:30pm
MnZ (mail):
Oh yeah, "all hell breaks loose". People sign a petition! Oh the horror! What's next? dogs and cats living together, law students burning down the ROTC building, rioting in the streets?

Last time I checked the 1st amendment was still fully in force.


This is the sort of facile argument that people on the Right have historically made to defend McCarthy-ism and the blacklists. I won't even address it.

Now lets talk about proportionality.


There are plenty of Professors on the Left that think and say things that are several times more odious than the memos at hand.
1.11.2007 4:41pm
David M. Nieporent (www):
My main point is this: the OLC memo does in fact have an unmistakable discussion of an unbroken string of policy decisions over the decades that the US will live up to the Convention even when it doesn't apply.

Please note that I am not critiquing the Yoo-Delahunty memo for omitting policy. Nor am I making a normative argument that the OLC should have discussed policy when in fact it did not. I am making a descriptive argument that it does contain policy references, even though it twice disclaims the role of providing a policy analysis.
I think there's a clear distinction between providing a historical overview and providing policy advice. The former is descriptive and factual in nature; the latter is normative.
1.11.2007 4:53pm
J. F. Thomas (mail):
There are plenty of Professors on the Left that think and say things that are several times more odious than the memos at hand.

Law Professors are not acting under color of law when they say odious things, otherwise Glenn Reynolds would have lost his chair at UT long ago. And if vapidity were an offense, so would Ann Althouse.
1.11.2007 4:53pm
NY (mail):
I don't want to hijack this thread but:

JF Thomas, what is it that you have against Reynolds?
This is the second time you've mentioned him in this thread, describing him in a way I find unrecognizable. Even "Hitler" is only brought up for malediction once so far.

First, Reynolds is 'resigned to the fact that genocide will be a necessary, but regrettable, "final solution" to the "Islamic Question."' 'Resigned' is interesting hedge for yourself, but linking his name to a 'final solution?' Do you feel he approves secretly ('circumspect' is your word I think)? Is this just rhetorical overreach, defamation or something serious?

And then, 'odious things, otherwise Glenn Reynolds would have lost his chair at UT long ago.' All he says is 'heh,' 'indeed,' and 'read all of it.'

Perhaps a cite or two to disabuse my notion that he is a normal person, insofar a law professor can be, who just happens to disagree with you politically?
1.11.2007 5:19pm
Anderson (mail) (www):
Not that Mr. Thomas can't answer the question, but on the very first page of googling "Glenn Reynolds" and "genocide," one gets this link quoting GR:

Civilized societies have found it harder, though, to beat the barbarians without killing all, or nearly all, of them. Were it really to become all-out war of the sort that Osama and his ilk want, the likely result would be genocide — unavoidable, and provoked, perhaps, but genocide nonetheless, akin to what Rome did to Carthage, or to what Americans did to American Indians. That's what happens when two societies can't live together, and the weaker one won't stop fighting — especially when the weaker one targets the civilians and children of the stronger. This is why I think it's important to pursue a vigorous military strategy now. Because if we don't, the military strategy we'll have to follow in five or ten years will be light-years beyond "vigorous."

This doesn't so much advocate genocide as contemplate it as a legitimate activity we might choose to pursue, one brought upon themselves by the *population* (that is, after all, what the word means) in question.
1.11.2007 5:44pm
A.S.:
First, the comment I made, which you quoted, referred to the Dred Scott decision as "unethical". I made no comparison to the Nazis, nor have I done so in any post here that I can remember. I deliberately switched the issue to one familiar from US history in order to make the point without having the distraction of "Godwin's Law" arguments; I indicated above my agreement with Prof. Adler on that score.

True enough. But the entire point of the discussion is Anderson's comment that Prof. Delahunty is just like the Nazis. You cannot separate your comment comment about Roe from the rest of the discussion. What I wrote is the logical extension of your statement, if one accepts Anderson's argument about Delahunty and Nazis.

Second, my discussion previously of the validity of Anderson's comparison -- a discussion separate and distinct from my point which you quoted -- specifically excepted the Final Solution, yet your response raises it anyway.

To the extent we accept Anderson's argument, my comment is a logical extension of your statement. Of course, I think Anderson's comment is extremist and hateful, but others seem to think it is acceptable.

Third, such accusations against Justice Blackmun are, in fact, common in some circles.

Yes, I agree with you that Anderson's comment can be aptly compared to the accusations against Blackmun made in those circles.

Fourth, someone who strongly believes that life begins at conception might logically (though in my opinion wrongly) compare abortion to the Holocaust. Whether that would be useful in a discussion is another story.

I don't find such comments useful. Neither do I find comparisons to Nazis useful. Nonetheless, here we are.
1.11.2007 5:48pm
JunkYardLawDog (mail):
Anderson you quite wrong. The quoted paragraph from GR is entirely an argument for doing something else NOW so more deaths of the enemy can be avoided later. There is absolutely nothing in that paragraph that can be taken as support for genocide. It is entirely an argument that unless something is done now, genocide may result later. He is clearly advocating do something now to AVOID the bad of genocide.

I would debate whether genocide is the proper term for what would happen if the cave dwellers don't stop attacking the more advanced society. Its not genocide in my opinion when legitimate self-defense results in the extinction of the attackers. Its just called good aim in my book.

Says the "Dog"
1.11.2007 5:54pm
Anderson (mail) (www):
JYLD, you are quite wrong. GR does prefer that we not commit genocide, but he contemplates its use, by us, in 5 or 10 years.

"Genocide may result later" is the flaw in your comment. Genocide does not "result." It is committed by someone.

There is no such thing as "provoked genocide," though Himmler, for instance, seems to've thought otherwise. --Oh, no! I mentioned a Nazi in discussing genocide! Godwin's Law!
1.11.2007 6:02pm
Anderson (mail) (www):
A.S.: Of course, I think Anderson's comment is extremist and hateful

Oh, brother.

Look: Kmiec (who thinks, btw, that the President has Constitutional authority to disregard the laws) et al. argue that a gov't lawyer's duty to the gov't is merely to address the question put to him, not to raise other questions that seem to him inseparable, or to raise an alarm when a narrow legal "yes" might be misinterpreted to justify policies to which the only moral and ethical answer would have to be "hell, no."

There were people in the dock at Nuremberg who tried similar arguments. They were Nazis. Their arguments didn't work, &they were convicted.

Kmiec et al. would presumably like us all to be blissfully ignorant of that fact ... and so would A.S. and others, because to point out Nazi-style reasoning is "extremist" and "hateful."

To which all I can say is, you have a really screwy idea of what those two words mean.
1.11.2007 6:08pm
Anderson (mail) (www):
Yikes, I take that back about Kmiec &the President -- K. was the moderator on the panel. My apologies.
1.11.2007 6:09pm
John Steele (mail):
David M. Nieporent,

You raise a useful distinction between (1) recounting the history of policy decisions on a particular topic, and (2) making a flat-out policy argument. If the Yoo-Delahunty did one or the other, one might conclude that it did the former, after noting that it had not been asked to "do policy."

But when you read the piece, the distinction really isn't that clear. When you get to the policy history, the authors say, "we conclude by addressing a point of considerable significance" (emphasis mine). They then discuss the long string of examples, with historical details, of when the US lived up to the Convention as a matter of policy: Korea, Viet Nam, Panama, Somalia, Haiti, and Bosnia. They also quote US military operational handbooks as saying that the US military lives up the Convention when it might not apply legally. When one reads the passages, one gets a powerful sense about the longstanding policy of complying with the Convention.

So, the point I made up above still stands, I think. Although the OLC wasn't formally asked for policy advice, and although it's not really a policy organ, the authors of that memo nonetheless highlighted the policy issue and gave the client considerable information on a tradition of living up the Convention even if it didn't apply. That certainly comports with the portion of Model Rule 2.1 dealing with references to non-legal sources of advice. They did it in a nuanced way, but they did it.

For me, the key question is this: then why not do the same in the subsequent "torture memos"? But that's not a question Delahunty has to answer, as it appears he didn't write the subsequent memos.
1.11.2007 6:33pm
Mark Field (mail):

But the entire point of the discussion is Anderson's comment that Prof. Delahunty is just like the Nazis. You cannot separate your comment comment about Roe from the rest of the discussion. What I wrote is the logical extension of your statement, if one accepts Anderson's argument about Delahunty and Nazis.


No. First, Anderson himself specifically excepted the Final Solution from his comparison, a point I reiterated. Second, I was moving on to a different topic, raised by other posters, about how one establishes the ethics of Delahunty (specifically, whether the fact that certain Justices allegedly agreed with him per se makes him "ethical").


To the extent we accept Anderson's argument, my comment is a logical extension of your statement.


See above.


I agree with you that Anderson's comment can be aptly compared to the accusations against Blackmun made in those circles.


I'm generally happy when people agree with me, but not when it's something I neither said nor believe.


I don't find such comments useful. Neither do I find comparisons to Nazis useful. Nonetheless, here we are.


We got here because I specifically disclaimed any comparison to the Final Solution and moved on to another topic, but then you made the comparison anyway.
1.11.2007 7:02pm
NY (mail):
Anderson, wow!

Were it really to become all-out war of the sort that Osama and his ilk want, the likely result would be genocide — unavoidable, and provoked, perhaps, but genocide nonetheless...

This is why I think it's important to pursue a vigorous military strategy now.

Because if we don't, the military strategy we'll have to follow in five or ten years will be light-years beyond "vigorous."

You got: "I'm in favor of driving the Mohamedans into extinction in 5 to 10 years" out of that?

I got: "were it [GWOT?] to result in a clash of civilizations like Osama wants, we will have to kill them all in the near future unless we pursue a vigorous military policy now and prevent that possibility."

This is even better than that "All dogs must be leashed in park" hypo. I just wish it was something other than a naked politically partisan need to tar the other side as moral inferiors that drives at least one of our interpretations though.
1.11.2007 9:24pm
Anderson (mail) (www):
I got: "were it [GWOT?] to result in a clash of civilizations like Osama wants, we will have to kill them all in the near future unless we pursue a vigorous military policy now and prevent that possibility."

No, that's what I got too.

Thing is, I call "killing them all" genocide. What do you call it? And under what plausible circumstance would "killing them all" be necessary or justifiable? Am I misreading the words "all" or "genocide"? Please explain.
1.11.2007 9:36pm
Katherine:
The Yoo Delahunty memo is barely better than the torture memo, goes much further than the dissent in Hamdan, is laughably incompetent as professional advice, is logically absurd at times, it is completely one sided, it absolutely does take policy positions, and I would be ashamed work at the OLC while its authors were doing this or sit on a law school faculty with them.
1.11.2007 9:44pm
Katherine:
(the best logical absurdity is the part where they say that

1) customary international law does not bind the President and "can have no legal effect on the government or on American citizens because it is not law,"

but

2) "the President may still use his constitutional warmaking authority to subject members of al Qaeda or the Taliban militia to the laws of war. While this result may seem at first glance seem to be counter-intuitive, it is a direct product of the President's Commander in Chief and Chief Executive powers to prosecute the war effectively.")

That's the best excerpt but the whole memo's written that way. You are the President, and they are baaaadd terrorists and terrorist supporters (the inevitability that we will capture civilians, and the Civilian Convention, are not so much as *mentioned*), so you can do literally whatever you want to them without fear of prosecution.

It's an easy path from that to this, and this.
1.11.2007 10:02pm
Anderson (mail) (www):
Michael Isikoff in Newsweek discussed the memo &the double-standard that Katherine points to; his article concludes with this:

One former official involved in formulating Bush administration policy on the detainees acknowledged that there was a double standard built into the Justice Department position, which the official said was embraced, if not publicly endorsed, by the White House counsel's office. The essence of the argument was, the official said, "it applies to them, but it doesn't apply to us."

But the official said this was an eminently defensible position because there were many categories of international law, some of which clearly could not be interpreted to be binding on the president.


(Pause to marvel at this "clear" statement. If the U.S. is bound, then the President is most certainly bound.)

In any case, the general administration position of not applying any international standards to the treatment of detainees was driven by the paramount needs of preventing another terrorist attack. "The Department of Justice, the Department of Defense and the CIA were all in alignment that we had to have the flexibility to handle the detainees--and yes, interrogate them--in ways that would be effective," the official said.


In other words, conclusion first, rationale afterwards. Surprise, surprise.
1.11.2007 10:26pm
Katherine:
Also, could someone who thinks it's horribly gauche to mention Nuremburg explain to me:

(1) why a prohibition on genocide wouldn't be as unconstitutional an infringement on the Commander-in-Chief power as a prohibition on torture under Yoo and Delahunty's theories?

(2) why it wouldn't be equally true that the President's actually *carrying out* genocide was a "policy decision", which the OLC lawyers took no position on and bore no responsibility for?

I don't see a distinction except on the scale of atrocity....which is not remotely comparable, of course. Well, that's very relevant if we're judging Delahuny's immortal soul, deciding if he's a Nazi, etc. but that's not really the question. The question is whether it's legitimate to oppose hiring him to teach law students.
"Sure, my shoddy results-driven legal advice that the President could ignore the laws of war led to war crimes--but not that MANY war crimes." seems like a bad argument to make before the hiring committee.
1.11.2007 10:39pm
MnZ (mail):
Katherine,

Does your distaste for shoddy legal advice extend to other issues?

Should people like Kent Greenfield be kept away from teaching law students?
1.11.2007 11:02pm
MnZ (mail):

Thing is, I call "killing them all" genocide. What do you call it? And under what plausible circumstance would "killing them all" be necessary or justifiable? Am I misreading the words "all" or "genocide"?


Anderson, I certainly hope that people like you support missile defense, because mutually assured destruction doesn't work if one side is too weak-kneed to commit to it.

I will leave aside the issue of whether mutually assured works against a culture that glorifies death.
1.11.2007 11:18pm
Katherine:
I'm sorry, I don't know who that is and I'd have to know what the issue was specifically....I take bad legal advice especially seriously when it's done by someone sworn to "support and defend the Constitution and laws of
the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same", and when it foreseeably leads to torture and death. The OLC is given an awful lot of responsibility--we really can't afford them acting like the President's personal mob lawyers.

Also, I think once someone is there and tenured (assuming Greenfield is), it becomes a very different question from offering an appointment because of academic freedom issues. I would absolutely NOT hire Yoo, but firing him is an entirely different issue.

A couple more things I think are quite misleading in this letter:

"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."

This is a RIDICULOUS statement. Whether Geneva and the War Crimes Act bind the President is of course an "issue relating to torture." The "conditions of detention" rules in Geneva include Common Article 3's prohibition on "cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment." The POW convention also forbids torture and cruelty, as does the civilian convention, as do the customary laws of war.
That's why, when the Hamdan Court found that Common Article 3 and the War Crimes did apply, we got the closure of CIA prisons, and the Military Commissions Act's provisions granting immunity for past acts of waterboarding and prospectively trying to create loopholes so that the administration still has the option of continuing to use "cold cell" and hypothermia. Is this ringing a bell with anyone? This isn't a memo about the Anti-Torture Statute or the Convention Against Torture, but it has everything to do with what interrogation techniques can be used against prisoners.

(ctd.)
1.11.2007 11:52pm
Katherine (mail):
Regarding this:

"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"

Okay, I'll support Amnesty's "unsupported suggestion". In practice, the decision that the President did not have to and would not obey apply Common Article 3, or the POW Convention, or the Civilian Convention, or the customary laws of war, to any detainee in Afghanistan had awful effects. In February 2002 the President made a final decision to throw out all the old rules on treatment of prisoners, and replace them with nothing--except a vague and contentless order that prisoners be treated "humanely."

Here is a good Human Rights Watch report on what resulted, in U.S. prisons throughout Afghanistan. Here is a New York Times story on the single worst instance. Excerpts:

Nor were the rules of engagement very clear. The platoon had the standard interrogations guide, Army Field Manual 34-52, and an order from the secretary of defense, Donald H. Rumsfeld, to treat prisoners "humanely," and when possible, in accordance with the Geneva Conventions. But with President Bush's final determination in February 2002 that the Conventions did not apply to the conflict with Al Qaeda and that Taliban fighters would not be accorded the rights of prisoners of war, the interrogators believed they "could deviate slightly from the rules," said one of the Utah reservists, Sgt. James A. Leahy.

"There was the Geneva Conventions for enemy prisoners of war, but nothing for terrorists," Sergeant Leahy told Army investigators. And the detainees, senior intelligence officers said, were to be considered terrorists until proved otherwise.

The deviations included the use of "safety positions" or "stress positions" that would make the detainees uncomfortable but not necessarily hurt them - kneeling on the ground, for instance, or sitting in a "chair" position against the wall. The new platoon was also trained in sleep deprivation, which the previous unit had generally limited to 24 hours or less, insisting that the interrogator remain awake with the prisoner to avoid pushing the limits of humane treatment.

But as the 519th interrogators settled into their jobs, they set their own procedures for sleep deprivation. They decided on 32 to 36 hours as the optimal time to keep prisoners awake and eliminated the practice of staying up themselves, one former interrogator, Eric LaHammer, said in an interview.


They often did this by chaining the detainees' arms to the ceiling of the cell. While they were chained there they used other techniques:

In late August of 2002, the Bagram interrogators were joined by a new military police unit that was assigned to guard the detainees. The soldiers, mostly reservists from the 377th Military Police Company based in Cincinnati and Bloomington, Ind., were similarly unprepared for their mission, members of the unit said.

The company received basic lessons in handling prisoners at Fort Dix, N.J., and some police and corrections officers in its ranks provided further training. That instruction included an overview of "pressure-point control tactics" and notably the "common peroneal strike" - a potentially disabling blow to the side of the leg, just above the knee.

The M.P.'s said they were never told that peroneal strikes were not part of Army doctrine. Nor did most of them hear one of the former police officers tell a fellow soldier during the training that he would never use such strikes because they would "tear up" a prisoner's legs.

But once in Afghanistan, members of the 377th found that the usual rules did not seem to apply. The peroneal strike quickly became a basic weapon of the M.P. arsenal. "That was kind of like an accepted thing; you could knee somebody in the leg," former Sgt. Thomas V. Curtis told the investigators.


In December 2002, these units chained two prisoners at Bagram to the ceiling and beat them to death using "peroneal strikes". One of the prisoners turned out to be completely innocent--a 22 year old taxi driver named Dilawar. He was turned in by an Afghan warlord whom the US later arrested for conducting rocket attacks on a nearby military base and then "then turning over innocent "suspects" to the Americans in a ploy to win their trust." One Sergeant told the NY Times that by the time he was taken in for the last investigation, "most of us were convinced that the detainee was innocent."

Nevertheless:

The findings of Mr. Dilawar's autopsy were succinct. He had had some coronary artery disease, the medical examiner reported, but what caused his heart to fail was "blunt force injuries to the lower extremities." Similar injuries contributed to Mr. Habibullah's death.

One of the coroners later translated the assessment at a pre-trial hearing for Specialist Brand, saying the tissue in the young man's legs "had basically been pulpified."

"I've seen similar injuries in an individual run over by a bus," added Lt. Col. Elizabeth Rouse, the coroner, and a major at that time.


The military eventually investigated and prosecuted these deaths. The maximum sentence anyone received was five months. One of the arguments that the defense lawyers made, which seemed to work, was that the troops didn't know what the rules were:

Although the administration issued a general order that detainees should be treated humanely, internal military files on the case show that officers and soldiers at Bagram differed over what specific guidelines, if any, applied. That ambiguity confounded the Army's criminal investigators for months and left the prosecutors vacillating over strategy. It also gave the accused soldiers a defense that has seemed to resonate with some military judges and jurors.

"The president of the United States doesn't know what the rules are!" said Capt. Joseph Owens, a lawyer for one of the accused interrogators, Pfc. Damien M. Corsetti, who is one of two former Bagram soldiers still facing court-martial. "The secretary of defense doesn't know what the rules are. But the government expects this Pfc. to know what the rules are?"


I know nothing about Delahunty beyond his role in that memo with Yoo, but I'm sure he didn't want or expect his advice to lead to this. I'm sure he thought he was giving the President the advice he needed to protect the country and save American lives. But when you tell the President that he is completely above the law, and that the prisoners in his custody are beneath the protection of any law, this is what results. It's a completely foreseeable result--though still hard to believe.

And again, this is only the worst example; it's not the only one. Read the Human Rights Report for many others. And I haven't so much as mentioned Guantanamo, or the implications of not holding Article 5 hearings....

Amnesty International isn't engaging in baseless speculation here.

I really apologize for the length of this post and cluttering the comment thread. But I thought it might help some posters understand the reason for the strong feelings and inflammatory analogies on the other side.
1.12.2007 12:25am
Katherine (mail):
This 2005 op-ed by Yoo and Delahunty is interesting (though obviously I don't think it matters much compared to the memo—if he had just written op-eds I disagreed with we would not be having this discussion). It seems to demonstrate that:

—His policy views apparently coincide perfectly with the memo's conclusions.
—He regrets nothing.
—He appears to either not know or not care that his memo affected innocent people as well as Taliban and Al Qaeda members.
1.12.2007 1:19am
Anderson (mail) (www):
I will leave aside the issue of whether mutually assured works against a culture that glorifies death.

The catch is, MnZ, I can't tell *which* culture you're talking about.
1.12.2007 9:04am
Anderson (mail) (www):
Okay, just to show I don't know when to stop ... I'm struck by this from the 2005 op-ed Katherine linked:

The problem of terrorist groups has been compounded by the emergence of pseudo-states. Pseudo-states often have neither the will nor the means to obey the Geneva Convention. Somalia and Afghanistan were arguably pseudo-states; Iraq under Saddam Hussein was another.

[No wonder we're having so much trouble making a "state" out of Iraq. But I digress:]

Pseudo-states control areas and populations subject to personal, clan or tribal rule. A leader supported by a small clique (like Hussein and his associates from Tikrit) or a tribal faction (like the Pashtuns in Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties depend on personal relationships with tribal chiefs, sheiks or warlords, rather than allegiance to the nation.

Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even the Saudi royal family exercise government power. Defeat of the "national" leader or clique typically results in the complete disintegration of the regime.


Question time: if you were a German lawyer working for the regime in late 1940, when Operation Barbarossa was being planned, could you have argued that the Soviet Union was a "pseudo-state" by that definition? (For purposes of the hypo, you may disregard the Soviet regime's failure to sign the Geneva Conventions.)

Judgment calls like this, which can readily be twisted into justifying any breach of the treaties you care to perpetrate, are the kind of thing Geneva was meant to avoid. (Note also the fascinating implication that we could disregard Geneva if we invaded Arabia. Now *that's* thinking ahead.)
1.12.2007 9:14am
Katherine (mail):
And THAT's how you kill a comment thread! (me, not Anderson).

I somehow didn't pick up on that part. So: Delahunty's one regret seems not to be that the failure to apply Geneva to Afghanistan had awful results, but that we were officially applying Geneva to prisoners in Iraq.

Nice.
1.12.2007 9:49am
MnZ (mail):
The catch is, MnZ, I can't tell *which* culture you're talking about.


Don't act so dense, Anderson. I have seen numerous Islamists say that they welcome death.

Anyway, if you did not get the point of my first statement, suppose that you are the President of the United States and opposed to anything that approaches genocide (including nuclear attacks).

An enemy state with nuclear weapons and missiles threatens to blow up New York unless you submit to their demands. You do not full comply. NY is obliterated. What do you do? Well, a nuclear retaliation is out for reasons mentioned above. So, a conventional attack is the only way to retaliate. However, your enemy is smart. He says that, if you launch a conventional attack, Chicago will go the way of NY.
1.12.2007 9:50am
AnonLawStudent:
Katherine:

(the best logical absurdity is the part where they say that
1) customary international law does not bind the President and "can have no legal effect on the government or on American citizens because it is not law," but 2) "the President may still use his constitutional warmaking authority to subject members of al Qaeda or the Taliban militia to the laws of war. While this result may seem at first glance seem to be counter-intuitive, it is a direct product of the President's Commander in Chief and Chief Executive powers to prosecute the war effectively.")



I'll give you an example to illustrate why this "logical absurdity" isn't quite so disagreeable. In the early 19th century, the world's preeminent military power (the Royal Navy) teamed with it's toady (the United States) and decided to institute the Anti-Slavery Patrol off the Atlantic coast of Africa. In other words, the President decided that customary international law did not bind him to prevent the use of his "constitutional warmaking authority" (i.e. forcible boarding of other nation's ships, an act of war) in order to subject citizens of [insert group name here] to "international law" (in the form of an agreement between the U.S. and Great Britain).

Can you explain the difference? The term of art is "act of sovereignty."
1.12.2007 10:06am
Anderson (mail) (www):
K: And THAT's how you kill a comment thread! (me, not Anderson).

I'm sure we can share the credit, particularly given my trophies in that regard.

--MnZ, the Pope thought that the West embraces a "culture of death," though he was against it. And we seem to enjoy spreading death at least as much as the "Islamists" enjoy seeking it.

As for MAD, I didn't miss your taunt; I ignored it. Obviously, failure to retaliate against a nuclear attack would invite further such attacks, and a policy of non-retaliation would be like taping a "Nuke Me" sign to one's back.

There is a difference, however, between retaliatory genocide against someone who attempts genocide, and genocide as a convenience. The Soviet Union could have wiped out the U.S. with nukes; al Qaeda cannot. (Besides which, what good are nukes against al Qaeda?)
1.12.2007 10:11am
Katherine (mail):
I thought "act of sovereignty" would be State Practice under customary international law. It's not self evident to me that the President's actions in that hypothetical violate customary international law. (It could--but what norms are you pointing to?) Can you see how arguing that "customary international law allows me to punish your violations of it" is different from arguing that "the customary laws of war do not bind me because they are not law. By the way, I am trying you for war crimes under the customary law of war"?
1.12.2007 10:18am
J. F. Thomas (mail):
What shocked me was the sheer intellectual dishonesty of the article Katherine cited. Delahunty and Yoo made several outright misstatements of fact or distorted history to bend the facts to support their points. First they imply that the Geneva Conventions are an invention of post WWII internationalism:


Shortly after World War II, nations ratified the Geneva Convention in order to mitigate the cruelty and horror of wars between the large mechanized armies that had laid waste to Europe.


This of course is patently untrue. The Conventions underwent a major revision in 1947 (as they did in 1919 after WWI), but they were written in 1864 and the U.S. has been a signatory since 1883. Supposed scholars of international law should know this basic fact about one of the cornerstones of international law.

Then they make this rather ridiculous claim:


To believe that the Geneva Convention should apply jot-and-tittle to such enemies reminds us of the first generals of the Civil War, who thought that the niceties that were ideals of Napoleonic warfare could be applied to battles fought by massive armies, armed with ever more advanced weapons and aided by civilian-run mass-production factories and industry. War changes, and the laws of war must change with them.



Now I don't expect a couple of legal eggheads to be experts on battlefield tactics but to argue that Napoleonic armies fought battles the way they did because of some kind of "niceties" and "ideals" or that Civil War generals continued to fight battles using the same tactics out of the belief in such chivalrous "ideals" and "niceties" belies a stunning ignorance of the limitations of weaponry, communications, and the tactical and operational reasons for the niceties and ideals. Armies didn't march shoulder to shoulder into battle and carry huge flags, wear bright clothes, and bang loud drums and blow horns out of a sense of honor, glory and fair play. It was the only way to tell friend from foe, achieve a reasonable mass of firepower, and communicate on a battlefield thick with smoke and deafening noise. Unfortunately, by the civil war the defensive capability of weapons had improved but the ability to carry out offensive operations had not kept up, leading to ever higher casualty rates.

To make the arguments that battle tactics were driven by some kind of moral considerations is just ridiculous.

If this article is any indication of these guys' deep legal thinking, they shouldn't be teaching future lawyers anywhere.
1.12.2007 10:41am
Ugh (mail):
What shocked me was the sheer intellectual dishonesty of the article Katherine cited.

Like Yoo teaching Con Law out of Erwin Chemerinsky's hornbook. Not one mention of your subsequent theory of presidential warmaking power the whole semester John, were bull sh!tting then or bull sh!tting at OLC?
1.12.2007 10:48am
Anderson (mail) (www):
Not one mention of your subsequent theory of presidential warmaking power the whole semester John, were bull sh!tting then or bull sh!tting at OLC?

Would Yoo be a "Straussian," perchance? Haven't heard that he was, tho Delahunty studied classics &is thus suspect ...

(Only 25% serious.)

Supposed scholars of international law should know this basic fact about one of the cornerstones of international law.

Well, that's just it, isn't it -- they're not only NOT "scholars of int'l law," they probably reject the very concept.

This was interesting too, from a Gillers article on the memo:

The Yoo-Delahunty memo is at best incomplete. Although the first sentence of the 42-page memo says the authors were responding to a request for "our Office's views concerning the effect of international treaties and federal law on the treatment of" detainees from Afghanistan, it ignores duties imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States ratified with reservations in 1994) and the federal torture statute, which creates criminal liability for U.S. nationals who commit torture abroad under color of law.

"Scholars of int'l law," indeed.
1.12.2007 10:59am
MnZ (mail):

There is a difference, however, between retaliatory genocide against someone who attempts genocide, and genocide as a convenience. The Soviet Union could have wiped out the U.S. with nukes; al Qaeda cannot. (Besides which, what good are nukes against al Qaeda?)


In the current situation, you are absolutely right. However, if extremist groups like Al Qaeda were to gain control of a nuclear armed state, the calculus changes and MAD (or missile defense) becomes very important. Anyway, I think we both agree that preventing Al Qaeda from controlling a state is important.
1.12.2007 11:21am
Anderson (mail) (www):
In the current situation, you are absolutely right. However, if extremist groups like Al Qaeda were to gain control of a nuclear armed state, the calculus changes and MAD (or missile defense) becomes very important.

MAD, yes, though unless they take over Russia, I don't think they could threaten our existence. Missile defense, only if it worked, which it doesn't.

Anyway, I think we both agree that preventing Al Qaeda from controlling a state is important.

Amen to that.
1.12.2007 11:28am
Mark Field (mail):

In the early 19th century, the world's preeminent military power (the Royal Navy) teamed with it's toady (the United States) and decided to institute the Anti-Slavery Patrol off the Atlantic coast of Africa. In other words, the President decided that customary international law did not bind him to prevent the use of his "constitutional warmaking authority" (i.e. forcible boarding of other nation's ships, an act of war) in order to subject citizens of [insert group name here] to "international law" (in the form of an agreement between the U.S. and Great Britain).


This leaves out some significant facts:

1. All the relevant nations -- US, Britain, France, Netherlands, Spain, and Portugal -- agreed to abolish the slave trade. The European countries did so at the Congress of Vienna. Spain gave Britain the right to search suspected slavers by treaty in 1817.

2. US law made engaging in the slave trade an act of piracy.

3. US participation in joint patrols with the British lasted just 4 years (1820-4).

4. The US Supreme Court held (The Antelope) that US forces could NOT seize ships of other nations engaged in the slave trade (the court did place a heavy burden of proof on the "owners" to assert proper "title" and, in practice, freed most of the slaves involved).

For the basic timeline, see this page.
1.12.2007 12:00pm
NY (mail):
Anderson,
double wow!

No, that's what I got too.

Thing is, I call "killing them all" genocide. What do you call it? And under what plausible circumstance would "killing them all" be necessary or justifiable? Am I misreading the words "all" or "genocide"? Please explain.


The emphasis should have been on GR's use of "were it to..." and "unless we..." not on my sophomoric hyperbole. Mea culpa.

The Reynolds quote seems descriptive of what happens historically and his hope that it doesn't to turn into that. "WERE x to happen, z will result, UNLESS we do y now."

He seems clear that he doesn't want it to happen, since he recommends action now to forestall that possibility.

It doesn't appear like he's prescribing a course of action at all, unless you subscribe to that mob-movie-speak where the saying you don't want something to happen is actually asking that it so happens.
1.12.2007 12:05pm
Anderson (mail) (www):
Why would genocide happen *at all*, NY? Who would be carrying out this genocide, and why?
1.12.2007 12:17pm
David W Drake (mail):
Anderson--

Your last quote from the memo omits the second sentence: In particular . . . " As pointed out repeatedly in this thread, the memo had nothing to do with torture. That's why the "torture"
laws and conventions weren't discussed.

If someone asks me to write a tax opinion about, say, whether he gets like-kind exchange treatment on a particular transaction, I do not have to discuss statutes or regulations that govern his duty to file income tax returns, properly treat deductions, etc. Those are simply irrelevant to my opinion.

And that's why the "Torture" authorities were omitted from the memo.

This point has repeatedly made in this thread.
1.12.2007 1:25pm
Anderson (mail) (www):
the memo had nothing to do with torture

As pointed out by Katherine, that's ridiculous.

*If* int'l &federal law restricted what the Executive could do to its prisoners, then torture would be out of the question.

The Yoo-Delahunty memo was instrumental and indispensable in creating a no-law zone where we could do whatever we wanted to them. (See "enemy combatant.")

As the quote from the official in the Isikoff made clear (to any reader who was paying attention), unrestricted interrogation was THE MAIN REASON for the Yoo-Delahunty memo &its progeny.
1.12.2007 1:54pm
John Steele (mail):
Anderson,

I may be mistaken about this, but I believe that Professor Gillers's criticism of the limited scope of the first memo was written before the subsequent memos had been leaked -- and those subsequent memos did indeed cover some of the ground that had not been covered in the first. If I further recall correctly, Professor Gillers then disagreed with the substance of the analysis in the subsequent memos and felt that they showed that the expanded analysis should have been included in the first memo. Two former lawyers from the OLC defended the sequencing of the analyses. You can follow the debate in The American Lawyer, which published a response to Professor Gillers's first article and then a reply by Gillers.

As for the issue of the scope of the first memo, I have always read those two sentences -- the one you quoted and the subsequent one David Drake quoted -- as having some tension between them. One might conclude that the second sentence, being more particular, and using the signal, "In particular," is the one that actually defines the scope. Of course, that doesn't prove that the scope was the proper one.

If you want to follow the chronology and understand how the various issues at different times and circumstances, you should read the Frontline interview of Yoo.
1.12.2007 3:12pm
Parvenu:
Anderson: You still haven't addressed the point, however, that while it turned out that Delahunty was wrong, the Supreme Court opinion that proved him wrong had not yet been written and was divided 5-3, with Roberts presumably of a mind with the dissenters but recusing himself because of his involvement with the case in the D.C. Circuit.

Some have suggested that Delahunty's position was "more extreme" than even the dissenters, but there doesn't seem to be a great deal of separation there to me, and if that was the way he read the cards, that was the way he was obligated to explain them. In addition, considering that the Hamdan holding still only had five votes in its favor, and was a fairly momentous pronouncement (in addition to requiring a certain amount of legal gymnastics to find jurisdiction to hear the case in the first place).

If failure to correctly predict the holdings of 5-4 Supreme Court decisions were grounds for dismissal from the legal academy, the ivory tower would be a fairly empty place.
1.12.2007 3:16pm
Katherine (mail):
1) The argument about Common Article 3 that Delahunty made is not precisely identical to the Supreme Court dissenters.

2) Much more importantly, that is only *one* of about *10* legal conclusions or arguments that Delahunty makes, all pointing in the direction of unlimited executive power &many of them much, much less defensible than the Hamdan argument. (E.g. the idea that the Geneva Conventions do not apply at all to the war with the Taliban or Iraq because they are "failed states"; the idea that customary int'l law doesn't exist or bind the President but he can try &execute prisoners for violating these nonexistent laws; the idea that the War Crimes Act is unconstitutional if it prevents the President for doing whatever he wants to prisoners--and many more besides.)
1.12.2007 3:32pm
Anderson (mail) (www):
Anderson: You still haven't addressed the point, however, that while it turned out that Delahunty was wrong, the Supreme Court opinion that proved him wrong had not yet been written and was divided 5-3, with Roberts presumably of a mind with the dissenters but recusing himself because of his involvement with the case in the D.C. Circuit.

I think that's addressed, but the short answer is that Delahunty &Yoo had an obligation to cover all sides of the question, which they didn't. The Gillers article that I linked above goes some way to show how professionally shoddy their memo was.

The point is not his disagreement with the Court; the point is his indifference to his professional and ethical responsibilities.

--John Steele is surely right about his corrections; shows what happens when I post in between discovery drafting.
1.12.2007 4:03pm
Anderson (mail) (www):
(Case in point, those two halves being written half an hour apart, &not jibbing. That said, based on the other stuff I've looked at &not just Gillers, there are grounds for questioning the competence of the 1st memo.)
1.12.2007 4:06pm
Goldy Gopher (mail):
Professor Adler,

To answer your question about the status of the Delahunty matter, I think this has been a non-issue at UMN for some time; you could have done better job investigating the status(did you try and contact anybody at UMN about this, including Dale Carpenter, who is a regular on this blog?).

I am a 3L at UMN and my understanding is that the matter has been closed since just after Thanksgiving: Prof. Delahunty is coming and that the students who opposed him have accepted the decision of the Deans and have all but stopped protest/petition efforts.

The St. Paul Pioneer Press also reported on 11/29 that Charles and Morrison had decided to stick with Delahunty. At the end of the article, the reporter makes clear that the decision for Delahunty to teach at UMN is final.

http://www.twincities.com/mld/twincities/living/16118716.htm
1.14.2007 12:53am
Rich Rostrom (mail):
If anyone is still paying attention...


A notorious Communist law profesor:

Bernardine Dohrn, unrepentant ex-"Weather Underground" terrorist, now Associate Professor at Northwestern U Law School.
1.15.2007 1:17am