The controversy over John Yoo's appointment at tenure involves, on one side, individuals who claim that his role in the "torture memos" shows him to be so incompetent, unethical, and/or immoral, that he should not be permitted to retain his position at Berkeley. On the other side, everyone from Brian Leiter to co-conspirator Jonathan Adler argue that the underlying complaint against Yoo is political, and it would be a violation of Yoo's academic freedom to threaten his tenure in the absence of an outside judgment by a bar association or court of law that he did anything beyond issuing very controversial legal advice.
My own contribution to this debate (I also wrote about the substance of a similar controversy involving Professor Delahunty in 2006, and I won't repeat my thoughts here) is going to be on the context in which this debate arises, which is that there is evidence of a strong, albeit informal, movement, among segments of the international law establishment in American law schools to decree certain "conservative" positions on international law beyond the pale of reasonable debate. I have two specific incidents in mind. My knowledge of these is based on hearsay, so I will not name the allegedly guilty parties.
First, a leading light of the international law academic establishment was asked to write a review of an entry-level international law candidate. The letter acknowledged that the candidate was bright and thoughtful, and would likely be a productive scholar, but urged the school requesting the letter not to hire the candidate because his views were too "conservative."
The second, more recent, incident arose when a candidate was being considered for a appointment at a prominent law school. All was going smoothly, until this candidate published a paper taking a controversial, though I think eminently defensible, position, on a current international law controversy. The existing international law faculty at this school swiftly rose to oppose this candidate, solely on the grounds that they were upset at the position taken in this paper, which was contrary to the "politically correct" view among left-wing international law scholars. According to my sources, the offer never materialized because of this opposition.
While Leiter is correct that it's rare for "'liberal' politicians and interest groups outside universities" to "successfully mobilize to get someone fired or even threatened that person's tenure because of conservative views," (but see, e.g., the case of UT lawprof Lino Graglia, who uttered what some deemed "insensitive" or "offensive" remarks relating to affirmative action; the result was, among other things, "Rev. Jesse Jackson flying down to Austin and a member of the (University of Texas) board of regents and a number of senators calling for him to resign"; not to mention the looming threat of "harassment" complaints and accompanying punishment at most universities if one deviates from certain orthodoxies) that's largely because academia is so dominated by the left that existing faculty have the power to deny someone a position, or tenure, to begin with if he exceeds the boundaries of what they consider acceptable discourse. One is not likely (to say the least) to get a job in a Women's Studies department if one is known to have anti-feminist views, no matter how scholarly and brilliantly argued, and, as I've noted before, as the Larry Summers fiasco at Harvard shows, anyone who wants to be president of a major university better not step outside the boundaries of political correctness.
Anyway, if the stories I've heard have been accurately described to me, Yoo is the least of one's worries about academic freedom with regard to international law. Yoo has tenure, so even claims that he is complicit in war crimes and so forth is unlikely to result in any consequences to his academic career, unless and until a bar association or other relevant disciplinary body finds that he violated his ethical duties as an attorney. But pity the entry-level or lateral candidate who dares to challenge the accepted beliefs of what I have previously termed "the cult of international law." Fortunately, legal academia is not completely closed to such individuals, but I'd hardly recommend it to an aspiring law professor.
Related Posts (on one page):
- Yoo and the Politics of International Law Scholarship:
- Brian Leiter Understands Academic Freedom
History is written by the victor, international law by the loser. The rare exceptions are when the victor wants to kill the loser, but prefers a clean conscience.
The core sources of international law are the International Court of Justice and the rifle. The rulings of the latter bind the former, who retains only the power to complain. Rather like writing a law review article regarding a Supreme Court decision.
All future war crimes prosecutions should be restricted to defendants under the age of 35. That way there is only a 40% of the case being mooted by the defendant's dying of old age.
You forgot "criminal".
Over a year after the main fighting, Khalid Sheikh Mohammed would be strapped to a board and endure for a few minutes having water poured over the back of his throat. He was the man who conceived, planned, and commanded the 9/11 attacks, and his victims on the top floors of the WTC suffered far longer than he did as they waited for the fire to burn them or the building to collapse. I do not suggest that illegal activity is justified by the prior crimes of the victims, but it is important to put the magnitude of things in perspective.
I have seen the term "crimes against humanity" used in this debate with no concern for reality. We know how POWs have been abused in the past. During WWII the Germans killed millions of Russian POWs, and the Russians killed 90% of the quarter million Germans who surrendered at Stalingrad. Around 20,000 American POWs died during the Bataan Death March. Though it is not regarded as a crime, the firebombing of Tokyo killed 100,000 civilians, mostly women, children, the old, and the infirm, and almost everyone who died was burned alive. That's real terror. Bin Laden and KSM will go down in history as third rate terrorist wannabes compared to Curtis LeMay.
So with considerably less stridency than others in this discussion, I turn to the question of whether it was illegal to dump a few quarts of water on the back of KSM's throat. Like many, I disagree with most of the superficial analysis that went into Yoo's various memoranda. I do not focus particularly on his findings on acceptable methods of military interrogation. A far more serious problem is his determination that enemy soldiers captured in the Afghan war are not entitled to POW status because, in his opinion, Afghanistan (a signatory to the Geneva Convention) was at the time a "failed state". I don't find that exception in the Geneva Convention, but maybe someone can point out the Article.
However, before I accuse Yoo of unprofessional behavior, I have to say that I am equally unimpressed by the superficial reasoning and wrong conclusions in many of the District Court and some of the Circuit Court decisions dealing with the war and security. Notably, there is the curious decision of the majority of the three judge panel in the Fourth Circuit in the al Marri case, that al Marri could not be an enemy combatant because this wasn't a real war because the enemy wasn't a regular country. This is actually the same bad decision that Yoo reached, but now presented from a "liberal" instead of a "conservative" point of view.
If Yoo's memoranda are unprofessional simply because they are superficial, then action against him should include a substantial part of the US Judiciary, who make equally silly and egregious mistakes all the time. If you think that morality makes his decisions worse, then go to Afganistan and make a pile of the severed limbs and dead bodies that were part of the war and compare it to the couple of quarts of water that in a few minutes suceeded in making KSM talk.
However, if you insist that this is a matter of Law and we cannot turn a blind eye to injustice, then there is this little problem of logic. Yoo wrote a memorandum on methods of interrogation by the military. KSM, Abu Zubaydah, and the other "high value" detainees who were agressively questioned were not held by the military. They ran into Pakistan and dressed as civilians and pretending to be civilians, they hid until they were arrested by the Pakistani police. Then these Pakistani civilians (because Pakistan was not at war with either the US or Afghanistan) were turned over to the CIA, a civilian agency. They were not enemy combatants nor were they covered by the Geneva Conventions, because from Pakistan's point of view they were simply civilian criminals and CIA civilian custody cannot change that designation. Only when they were turned over to the military at Guantanamo did the Laws of War reattached to them. Whatever the CIA did to them may have been a crime, maybe even a violation of some international law, but it was not a War Crime and did not violate the Geneva Conventions. Yoo is not the only person in this discussion who does a lot of superficial legal analysis.
I'll take Professor Bernstein's bait and say that, yes, any law professor who has given legal advice which would make him a participant in a common plan to commit war crimes should have his tenure reviewed for revocation. I don't know if that is true of Yoo, but that is the charge - not malpractice, nor professional incompetence, nor being an idiot, but participation in a common plan to commit war crimes.
To quote Brigadier General Taylor, prosecuting the Justice ministry officials at Nuremberg: "The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law...This conduct was dishonor to their profession. Many of these misdeeds may well be crimes. But, in and of themselves, they are not charged as crimes in this indictment...On the contrary...the defendants are charged with using their offices and exercising their powers with the knowledge and intent that their official act would result in the killing, torture, and imprisonment of thousand of persons in violation of international law."
The U.S. is not Nazi Germany, and John Yoo is not Ernst Lautz. However, if Yoo knowingly gave advice intending, for ideological or other reasons, that, as a result of his advice, the administration would commit war crimes, then he has committed a crime - not an exercise of academic freedom, nor mere non-compliance with professional standards. Likewise, when the person who committed this alleged offense is not being investigated for prosecution because the administration which he served granted him retroactive immunity, then it is not sufficient to say that his employer must await that prosecution before it can make an independent judgment of his culpability.
This is not about academic freedom. Alan Dershowitz advocated permitting the torture of terror suspects - indeed, it is claimed that his work had a direct influence on the torturers at Guantanamo - but despite this "cult of international law", nobody's saying he should be stripped of anything.
The charges against Yoo are direct and serious. Perhaps he is innocent - if he is, then it would be to the benefit of both him and his university to clear the matter up so that he can get on with his teaching. Anyone accused of any other crime would certainly take this step. If he is not innocent, then the university should at least ask itself if it wants him to continue his service.
Maybe it still will - Heidigger was accepted back as a professor, after all - or maybe it will conclude that it does not have enough information to come to a determination and so will err on the side of restraint, or that really is not possible to pass judgment in such a politically-charged environment. Any of those could be a valid response. To slander the calls for such an investigation, though, as the work of a "cult", is dangerous and disrespectful to those who fight to uphold justice in such situations.
And people wonder why those raised in the morality of Reagan have abandoned the GOP. Sheesh.
I disagree pretty strongly with Yoo's analysis in the memo, but this is definitely a matter of academic freedom. There is little to no evidence that Yoo "knowingly gave advice" that was shallow or disingenuous. As much as I disagree with him, the only real evidence I have heard of is the notion that because many disagree with him he cannot have been serious and thoughtful about his advice. That is not exactly very compelling evidence in my book.
And he has certainly not been granted "retroactive immunity" from prosecution. There are arguably political reasons as to why Yoo will never be prosecuted, but at worst that is a small price to pay for academic freedom. Which would you prefer: That universities undertake potentially ideologically-based investigations to remove faculty members whenever there is an allegation like this? Or that in the rare instances where political factors render someone insulated from the act of giving shoddy advice, they are allowed to keep their position as a professor? To me the latter is definitely the better option.
No, it doesn't mean that at all. In saying that, Professor Bernstein, you have disclosed an assumption that you are making about this case, which is that you don't think that Yoo's advice is any different than other bad advice given by other bad lawyers.
I would suggest to you that in fact it is quite different. First of all-- and I will concede this is unproven-- but it is entirely possible that Yoo actually conspired to commit torture, i.e., he agreed with his employer to produce a memo that justified torture no matter what the law said. If that is the case, he has committed a very serious felony that would certainly justify revocation of his tenure (as well as a stiff prison sentence). That is certainly different than simply giving bad or even biased advice to a client.
Second, however, even if all Yoo did was produce a result-oriented memo, which would be unethical, but hardly unusual, two factors make this much worse than the usual such scenario. First, the conduct that was authorized was torture. And while I will comment about your statements about conservative views on international law in another comment, suffice to say that no serious international law scholar-- not even conservatives-- believes that torture is permissible under international law. Indeed, it is, along with genocide, one of the two acts that everyone agrees violates a jus cogens norm, a nonderogable duty. Thus, improperly advising a client that it may commit torture is a much graver act than improperly advising a client that it could, say, publish a misleading stock prospectus or utilize an illegal tax shelter.
Second, Yoo was not a private lawyer. He worked for the OLC, in a context where due to both realities and legal doctrines that he was advocating to prevent court review, his memos basically became executive branch policy and the only governing law on this issue. He was judge, jury, and executioner. This imposed on him a much, much greater duty to serve the public interest than an ordinary lawyer in private practice has.
What strikes me is how Prof. Bernstein conflates this with Lino Graglia (no idea who that is), and brings up examples of speech suppression. Except, it seems that it's not actually speech supppression, but really people with issues simply exercising their right to free speech. When private parties point at you and say you're an idiot, whether you are or not, isn't that the way it's supposed to work?
Another red herring: The suffering of soldiers in the field is not the same as the torture of prisoners. There is the little matter of custody, but even there combatants are required to provide care for wounded enemy.
No, it would be "allegedly criminal." It's not proven criminal until convicted. You know, innocent until proven conservative. And that's what a lot of this is about. You may think that what Yoo did was criminal. But when it comes to allegedly criminal behavior, he has a right to the benefit of the doubt. And while a university could take a conviction into account, universities simply don't have jurisdiction over crime.
However, there are also those who simply do not believe that the US should have any obligations under international human rights law whatsoever, and advocate any mechanism for depriving it of any force to bind the United States. And that view, I would respectfully suggest, is "beyond the pale" as an interpretation of international law (although it is a view that could be asserted in a political science department or as a matter of jurisprudential philosophy). In other words, the fact that, for instance, torture is a jus cogens norm in international law that nations aren't allowed to derogate from, has been accepted by at least three decades of consistent caselaw, plus the Convention Against Torture, US Torture Act, Torture Victim Protection Act, amendments to the Immigration Act, Geneva Conventions, Universal Declaration of Human Rights, etc. The fact that the conservative movement might find it helpful to have a scholar advocate that the US owes no duty to the international community not to torture detainees does not make such a position a serious interpretation of international law.
I suspect that a fair amount of conservative griping comes from people in this second group. They don't like international law binding the US on human rights issues, they don't like the influence that liberal scholars (i.e., people who actually believe in the enterprise) have on the shaping of international human rights law, and they don't like the role of foreign governments and courts (which they see as either elitist or undemocratic or both, and an end-run around US sovereignty) in interpreting shared obligations. That is not an accurate statement of the US' legal obligations, and indeed, one of the signature legal deficiencies of the analysis of key Bush Administration lawyers on these questions is that they share some of the assumptions of this "scholarship", which simply ignores the consistent holdings of courts and the longstanding understandings of state-parties to these treaties and conventions.
So look, if you want to see the Yoo memos as part of this broader debate, it simply strengthens the position of Yoo's critics. The foxes should not be left in charge of the henhouse. Conservative interpretations of the scope of international human rights obigations are certainly a worthwhile contribution to the debate, but people who simply don't believe in the enterprise at all are not making a serious, good faith attempt to interpret the US' obligations under international law. And of course, neither was Yoo.
Just because you don't think Yoo was qualified to interpret international law, doesn't make him a war criminal. Put up or shut up.
Howard Gilbert said:
This was combat, and international law has nothing to say about it.
I think you'll find that it does, going back at least as far as Grotius. It's called ius in bello, the law of war, as opposed to ius ad bellum, the law that says in what circumstances you can go to war. A good review of the ius in bello is the ICJ's nuclear arms advisory opinion.
For example:
As for the red herring that someone who doesn't believe the executive branch is bound by international law in exercising its war powers, I don't remotely see why someone like that should be barred from the law professoriate. It's like saying that someone who doesn't believe that canon law is binding can't teach canon law. Why not? I don't believe I am obligated to follow the Talmud. Does that make me incompetent to teach it, if I were an expert? Since when is an academic required to "believe in" what he teaches?
Back to war crimes. As I said, if a competent state bar ethics committee or American criminal court finds that Yoo did something outside the bounds of professional ethics or the (domestic) law, let's talk. A disbarred lawyer should bear the burden of showing why he should remain on a law faculty. A lawyer who faces broad allegations that his advice led to "war crimes" simply is a lawyer who faces allegations of criminal behavior, though the phrase "war crimes" is so vague that I'm not sure when it's actually an allegation of criminal behavior, and when it's an allegation of behavior leading the U.S. to engage in behavior that "international law scholars" thinks is or should be banned by international law, regardless of whether the conduct is or was banned under domestic law.
Let's take a hypo: if the Supreme Court rules that the Executive can, in fact, ignore any statutes or treaties or "customary international law" that purports to ban any particular treatment of detainees in wartime, is Yoo still to be booted out of academia because he supported "war crimes?" What if the Supreme Court adopts Yoo's interpretation of what constitutes torture? What if Yoo's position gets 3 or 4 votes on the USSC (as it did on some issues in Hamdan?) My suspicion is that regardless of what U.S. courts say, some will say that Yoo is still just as guilty, and should still be de-tenured, but I'd love to hear from Yoo's critics.
@DavidBerstein: I would say that in the US, the opinion of the Supreme Court, or its individual justices, should be the end of it, as far as disbarment or any revoking of tenure is concerned, even when it concerns the interpretation of treaties, etc., which could also be authoritatively interpreted by the ICJ. It's just that one would hope that SCOTUS would know better than to make it virtually impossible for the US to ever into any treaty regarding war, or weapons, or human rights in time of war again. (Yoo: "it is likely that under international law no treaty could prevent a nation from taking steps to defend itself", p 58, quoting an earlier opinion of unknown authorship. Presumably this means that treaties like SALT, START, etc. are all essentially non-binding.)
Over here, in the EU, BTW, I would say that the moral, legal and practical authority of the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg is such that their pronouncements are the ultimate benchmark, each within the range of their own jurisdiction.
The first comment I understand. The second one - not so much. Does Dilan have to start up a war crimes tribunal too?
This is a very interesting analysis, considering the usual justification for torture (or enhanced interrogation technique, or whatever). It is a generally accepted principle in law enforcement that torture does not work. This, in itself, is not a reason not to use it, but it is a good reason not to trust its outcome. If the outcome is worthless, then there is no benefit to outweigh the moral harm. The way that torture has been generally justified by the administration supporters is that 1) information obtained through torture will save lives and 2) we should not feel guilty torturing these guys because they are "the worst of the worst". I've already addressed the first part. The second is where Tern goes wrong--this justification of torture requires us to believe that we already know that the subjects are criminals and only want to coerce them into giving up valuable information. But, in fact, we know nothing of the sort. At a trial--if one were ever held--the evidence of guilt would have to have been obtained prior to torture. If that's the case, conviction should be easy. Instead, we get into a problem of circularity--evidence obtained under torture is being served to prove guilt that we supposedly were sure of when we opted to torture. This is why law enforcement objects to torture--it automatically taints all evidence.
Back to DB's argument. Bill Poser is right and much of the criticism of Yoo has been based on his views on domestic law, not on international law. But even where we look at international law, what is at issue are treaties and conventions--once these have been ratified, they are domestic law as well! Forget international law--torture is perfectly illegal under US law.
But even if we were to ignore all domestic issues that make Yoo's position problematic, the debate is still not about international law--it's about legal ethics. Yoo's conduct may or may not be criminal (and, it appears, most lawyers--and not just legal academics--believe that it was), but it is certainly unethical. And ethics to a lawyer should be what law is to everyone else. A capable lawyer can bend the law with a prudent argument, but he should not be allowed to be unethical.
BTW, someone mentioned that if Yoo were disbarred, he would not be able to be a law prof. This is nonsense. Many members of legal academia are not and never have been members of the bar. Some have been actively disbarred. Having been disbarred would prevent someone from joining the legal staff at DoJ (which is why I argued for disbarment of Alberto Gonzales when he was stubbornly refusing to resign), but it would not prevent him from being a law professor.
BTW, the idea that "torture doesn't work" is nonsense. US army studies on veterans captured by the North Koreans in the Korean War showed that just about every single one of them gave in to torture eventually.
What you mean is that law enforcement people think that torture is generally less effective than other means of getting information, including certain psychological tactics (which I believe some int'l law gurus also think should be banned).
I hear that a lot.
I also don't see any real evidence for it. Torture on its own tends to be remarkably effective, simply because the goal itself is so easy; it's not particularly hard to inflict pain on the average human being. I assume you mean interrogation through the use of torture, a more heavily debate technique, not working.
That seems rather odd of a reaction to take. Torture has an unfortunately rich and interesting history, and I find it a bit hard to believe that torture for information would continue to do so if it "does not work". If it were just as effective as torturing for the whole bloodthirsty aspect alone, you wouldn't see nearly that many people bothering to ask questions.
That sort of result seems to be supported by the evidence. While there is a significant amount of noise and situations with no response, there are still recorded signal. The question of signal-to-noise and morality remain good ones, but not particularly relevant to the question of whether or not the methodology works, only whether it works especially well or if it could be ethically recommended.
"Moral" authority? "Practical" authority?
I continue to think of Belgium's and the E.U.'s relationship to Rwanda or even the Balkans. (Belgium was the final colonial power in Rwanda as late as the early 60's and they continued to have strong ties with the country.) They stand aside while the slaughter proceeded, then - after the fact - they initiated some legal offensives. Granting some legal import, how does that take care of genuine "moral" and "practical" considerations, much less a final and authoritative denouement?
In precisely the same vein, I'm left to wonder when negligence is going to become a hallmark of international law. Absent considerations of negligence international law, among its other inadequate foundations, becomes a notably one-sided affair.
Think about it.
The professionals are hardly going to come out and say that "it works."
I've always wondered if the risk of being arraigned on charges of torture was not a little exaggerated by pompous international law-types after Pinochet. After all - apart from the General - there have been innumerable other cases of torture and alleged torture during the Algerian war, yet few if any findings of war crime guilt by the French in any European Court ("However, the Court of Cassation rejected the complaint which had been deposed against him on charges of torture, claiming they were amnestied."). Meanwhile, the Turks get a bit of grief in the ECHR, and the Serbs in the ICTY, but everywhere else - Egypt, Africa, Jordan, Saudi Arabia, or whereever torture is apparently widespread, there's little interest in anyone indicting anyone.
My general skepticism about the mind set of "international law scholars" is somewhat tempered here by my skepticism over the failure to reveal the nature of the "eminently defensible" position on "a current international law controversy."
Perhaps persons are so predisposed because it is always easy to proffer opinions from the comfort of their home, office, etc., where they are far removed from areas of conflict and the realities of war.
Personally, I would much prefer being waterboarded (which, by the way, was a standard part of the military survival training I received as an naval officer during the Vietnam War), not that it is any fun...quite the contrary. My idea of torture would be to be held in a cell and sujected to endless reruns of "The View" with Rosie at the helm.
This may be the next phase. State bars do have a political dimension to their composition.
The dynamic in the torture chamber is that the torturer wants the victim to say something, and the victim wants to say whatever it is the torturer wants to hear in order to make the torture stop. Do you see why that should cast doubt on the victim's words? If the victim perceives that the torturer wants something in particular, then the victim will give the torturer that thing whether or not it is what the victim believes is true. In other words, vis à vis other forms of interrogation, torture diminishes the reliability of information.
Now I think advocates of torture would respond that torture increases the availability of information, inasmuch as some people won't talk at all unless tortured. So how much worse is no information than unreliable information? Maybe that is case-specific.
Of course we may object to torture on grounds other than utility. But its utility should probably not be assumed.
*In today's Chicago Sun-Times, Rick Ayers is quoted as angrily accusing Hilary of McCarthyism for calling attention to Obama's links to his brother, the "so-called terrorist Bill Ayers." (italics mine) He thinks that in the manner of Joseph Welsh famously responding to McCarthy during the Army-McCarthy hearings, Obama "should have said, 'Senator Clinton, are you really going to go there? Do you have no shame?'"
I've made this point repeatedly in other threads, but it's worth making it again here: there is nothing in the Berkeley standards which requires conviction of a crime or proof that one took place in order to discipline a professor. Criminality is merely an example of misconduct.
Moreover, this is one of those situations in which demanding conviction of a crime would make discipline impossible in practice even if guilt were admitted. Crimes committed by government officials all too often go uncharged and unpunished precisely because the government is both judge and prosecutor. This is particularly true of torture and other war crimes.
"We'll see what the liberals squeal when NYC gets nuked. They'll be screaming for torture then"
No. Knowing in their hearts that it is our fault, they will be screaming surrender.
What are you talking about? Of course the question of signal-to-noise is relevant to whether torture works - highly so.
And perhaps you could give us a brief summary of your experience as a torturer, or your other sources of expertise.
They believe it for the most persuasive reason of all, that being that they want to believe it.
Whereas fans of torture are clear-eyed and objective. Give me a f'ing break.
Those would seem offenses worthy of a bit of attention from enthusiasts of international law (if it's going to have any credibility at all). Why aren't those who are so indignant about Yoo's memo first directing some of their outrage to these other (?) atrocities?
There is a lack of proportion in this Yoo debate. After all, Yoo would never have had to write the memo in question if we were not first in the absurd position of being forced to think about how to respond to people who rejoice in hacking away at a shackled man's neck and then gloatingly posting a video of their feat online.
If international law could tackle that sort of diplomacy, others might be better disposed to listen to it on the Yoo matter. But then if international law could do that, there would have been no Yoo memo and no Yoo matter to discuss.
That's a rather remarkable claim, given the long history of juridical techniques that do not work. Trial by combat and trial by ordeal have rich and interesting histories as well, but they are not today recognized as even remotely reasonable ways of achieving justice. The investigation of the body of the accused has a long history too -- going back to the Old Testament connection between skin diseases and sin, later resurfacing in the probing of accused witches for "witches' teats" and "devil's kisses", and still later in the pseudoscientific practices of phrenology and Lombroso's "criminal anthropology", which claimed to discern whether a person had a "criminal nature" by measuring parts of the body.
In short, the fact that a practice has a long history does not prove its reliability. In the case of juridical torture there is also an equally long history of familiar criticism: a person under torture will say whatever they think will make the torture stop, regardless of its truth. During the medieval witch craze, tortured men and women frequently confessed to impossible and mythological feats. And the law recognizes this today: a confession obtained under duress is inadmissible as evidence -- not so much because the duress is wicked, but because such confessions are unreliable.
Why is juridical torture so historically popular if it is unreliable as a source of facts? I suspect it's chiefly because torture demonstrates the subjection of the tortured person to the power of the torturer. Juridical torture has the same human motives as the extrajudicial torture performed by (e.g.) Charles Graner and Lynndie England: to satisfy the base desire of the torturing authority for complete and indisputable power over the tortured.
I fail to understand your point, and I don't appreciate being called dishonest. Further, I'd appreciate the courtesy of spelling my name right. Or was that intentional?
My comment was that signal-to-noise ratio is highly relevant to whether torture works. Are you claiming that because I left out "especially well" I was misrepresenting gattsuru? I was not. Is there some subtle distinction between "doesn't work" and "works badly" that is the core of his argument? Sorry, that's ridiculous.
If torture gets you 100 items of information, one of which happens in hindsight to have been true, it didn't "work" except in the most academic, dare I say tortured, sense. At the time you don't know what the true item is, or even if there is one. As Bama1L points out, you're going to hear a lot of what your victim thinks you want to hear - not the truth. If you follow up everything you're going to waste a heck of a lot of resources. Furthermore, you have to compare torture to other interrogation methods to say whether it works or not.
The hymn of today's humanities academe appears to be: "New Class, New Class ueber Alles!"
No. Knowing in their hearts that it is our fault, they will be screaming surrender.
Well, truth be told, they won't be screaming at all because they'll already be crispy critters. It's interesting to note that the urban locales where opposition to "torture" and the GWOT is greatest also happen to be at the top of Al Qaeda's "Hit &S*** List."
Indeed, legal debates like the one above will be irrelevant if, or when, we're hit with a WMD. Our "finely-nuanced, well-reasoned legal response" to Islam will be nothing less than a Final Solution...and woe to any damn-fool, silver-tongued, technicality-debating J.D. who objects.
"In law school no one can hear you scream."
I'm sorry you transmitted in the clear, Mark. Perhaps He Who Must Not Be Named will be more merciful with you than he was with the last transgressor ...
That's a rather remarkable claim, given the long history of juridical techniques that do not work. Trial by combat and trial by ordeal have rich and interesting histories as well
Indeed they do. The liberals just want you to *think* trial by combat doesn't work, because they're such 98-lb weakings, they would all get their asses kicked by real men, er, conservatives.
Paging Dr. Volokh on slippery slopes -- first torture isn't so bad that anyone should even consider firing Yoo, then it's not so bad that we shouldn't use it on (suspected?) terrorists, and then it's so effective that the cops should be using it.
In my neck of the lower 48, Mississippi, the cops *did* use torture. Principally on black suspects. You'd be surprised how many of them turned out to be guilty, too -- I mean, the cops got their confessions!
Unfortunately, the judicial elites on the U.S. Supreme Court intervened:
Because a state may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand.
Silly justices! They didn't have the commenters at the VC to set them straight.
I'm not justifying torture. In fact, I didn't even address the issue that you think I got wrong. I'm only pointing out that Yoo isn't a criminal until convicted, regardless of the merits or alleged criminality of his opinion. Is he wrong? Probably. Is he criminally wrong? Not until convicted in a court of law.
A disbarred lawyer should bear the burden of showing why he should remain on a law faculty.
The typical causes of disbarment would not necessarily make a lawyer a bad law professor. Lawyers are disbarred mostly for spending their clients' money or grossly neglecting their cases. Professors typically are not trusted with large sums of money, and teaching a few courses a year is not as complex as handling hundreds of open client matters.
legions of them already flock to defend terrorists-why would anyone think they will, at some point, realize that we are the good guys and the other side is the bad guys.
But what happens when the good guys are not so good any more? The idea that we can redefine torture as not-torture because we are the good guys who would never torture doesn't sit well with me. Nor does the idea that we can degrade our standards to match our enemies'.
Our standards will change to insure our survival. That's the way it has always been. We are not spectators lookng at two teams and deciding which is good and which is bad. It doesn't matter if you call us good or bad. We will choose to survive. Then we will say we were good.
I figured it made more sense to pick this up here.
We both have suspicions about the intellectual honesty of Yoo's memos, but our suspicions lead us to different conclusions. You think Boalt should investigate whether Yoo violated the Faculty Code of Conduct. I don't. In that regard, what significance do you give Dean Edley's statement, "I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law"? (my emphasis)
Re-reading that statement, something else occurred to me. How do we know Boalt hasn't conducted the investigation you want and decided not to refer charges to the Chancellor? The Code isn't specific about the procedure for making that determination, but isn't it likely that as an employment matter it would be confidential unless a decision was reached to recommend disciplinary action? (In which case we'd never know whether it transpired).
If Boalt did conduct the inquiry, the Dean's apparent mis-reading of the Code to require criminal conviction as a pre-requisite for disciplinary action is troubling. But that's a separate matter.
Well, I did whisper.
Ah, the Phillip Johnson strategy. Boalt seems to be a real trendsetter. Makes an alum proud.
I assumed that referred to Yoo's public defenses of his memos. If Boalt did conduct an internal investigation already, I'm satisfied (but not happy) as long as it was thorough. Although this would ordinarily be confidential, I'd think Yoo himself might prefer a public announcement, since that would favor him.
That's a fun game. And maybe Yoo's critics are barking up the wrong tree with that torture stuff. If they want to get any traction around here they should probably point out that Yoo has stayed on a faculty for 15 years with somebody (Phil Johnson) who denies HIV is responsible for AIDS. This Yoo clown sounds almost as bad as Barack Obama!
Obama's relationship with Wright is much closer than "stayed on a faculty with".
Maybe Obama expected a preacher named Jeremiah to preach jeremiads.
In fact, I do know two law professors in different law school who had been disbarred. One was reinstated later. The other did not bother. Both had tenure and neither lost the job. I also know at least one admitted former (non-US) terrorist who is a tenured law professor.
I should have been more clear. Torture reliably produces unreliable results. When we talk about US soldiers captured by North Koreans, the kind of information the torturers wanted was not particularly detailed or time-sensitive. Same with US troops captured in Vietnam--the point of torture was more to have them say something that the captors wanted said rather than to obtain useful information. This is a completely different purpose than what it is purportedly being used for in this case. To be completely clear, torture is an effective will-breaking method but a completely ineffective interrogation technique.
No, I mean that torture is not an effective method of obtaining reliable information. This is what law enforcement people believe--which is why so many of them have been coming out against the use of torture in interrogations. True enough that some information thus obtained might actually be accurate--that just falls into the usual category of even a stopped clock showing correct time twice a day.
I have a few observations about this:
1. I don't think the Supreme Court scenario is likely. There probably is one vote (Thomas) for the proposition that the President has the authority to violate the torture act. There are nine votes on the Court for the proposition that the President has the power under DOMESTIC LAW only to violate customary international law and non-executed treaties, but that only gets Yoo off the hook if you believe that conspiring to violate international law, or deliberately advising violations of international law with false advice, is not a justification for removing a faculty member.
Indeed, this is sort of what I was getting at with my statement that there are conservative views on the nonbinding nature of international law that are beyond the pale. This is one of them. Nobody other than Clarence Thomas believes it, and Clarence Thomas' position on this issue is completely inconsistent with the text of Article I Section 8 of the Constitution, the drafting history, and over 200 years of precedent and practice.
2. To say that Yoo got "votes" for some of his positions ignores what those positions were. He got one vote, Thomas, on almost everything. He got 4 votes for the argument that Common Article III didn't apply to Al Qaeda members. But this isn't the advice that people are claiming was beyond the pale.
Rather, it was the conclusion that Congress' enactment of the Torture Act, enacted pursuant to Congress' power to execute treaties (recently confirmed 9-0 by the Court in the Medellin case) and Congress' power to make rules for captures on land and water, bound the President. And THAT advice is not going to get more than 1 vote of support from the Supreme Court; without that advice, and Yoo's implausible interpretation of the Torture Act (ignoring well established caselaw both in the US and overseas about what torture means), the President wasn't allowed to authorize torture.
Every idiot who shouts--these are terrorists! we SHOULD torture them!--would be wise to remember that we don't always know if they are terrorists before they confess under torture.
Speaking of which,
Which is why the French are still entrenched in Algeria--their methods were so effective, they can stay there in perpetuity (just like McCain's 100 years in Iraq).
But the rest of advisory opinion (along with some other misguided remarks) is equally meaningless. As I just mentioned, torture is remarkably effective in getting people to admit guilt--that's why it was such a great inquisition tool. It is also highly unreliable in getting them to provide useful information.
The problem is, if all we want is for them to admit their guilt, just ask--the terrorists are usually only too happy to take credit for their misdeeds. That's the whole point! But if you want to them to provide accurate information about their operations, their plans and associates, the last thing you want to do is torture.
Now who's leaving things out?
I made clear throughout that I think the distinction you attach so much weight to is nonsense.
Hardly. Your point is inapplicable. Even if Yoo opines that such a presumption doesn't apply to the people being tortured, it doesn't mean that he waives the presumption, or that it doesn't apply to him.
You seem to argue that we ought to apply the same standard to Yoo as he (probably mistakenly) applies to the detainees, that standard apparently no presumption of innocence. You can't have it both ways. Either he is mistaken, in which case it can't apply to either the detainees or himself, or he is correct, and then he wrote a correct opinion which is thus not criminal.
Fail.
Nobody contends that torture alone wins a war, so the outcome of a conflict does not speak to the efficacy of torture.
As for McCain, his stance is generally anti-torture, having been tortured himself. Since the North Vietnamese won the Vietnam War, are we to conclude that, by your own (inane) logic, torture is effective?
In your haste to make a vacuous rhetorical point, you contradict yourself.
But the rest of advisory opinion (along with some other misguided remarks) is equally meaningless.
Yet you struggle to reply without eliding them.
Paul Aussaresses thinks it works. But apparently, only interrogators who say it "doesn't work" have opinions that matter.
You also elide the point made: that you'd hardly expect the professionals to come out in droves and say "it works!"
No one would implicate himself, obviously. So inherently, you already have a self-selection bias when it comes to opinions offered on the efficacy of torture.
Yet in the rare instance when an interrogator is candid enough to say that it works, his opinion is dismissed out of hand by your armchair ruminations on the subject! Clearly then, no contrary testimony will change your mind - for you, torture is a priori ineffective.
When you truncate my quote in your eagerness to launch into a meandering spiel on the inefficacy of torture, you also elide the main point: that is, that the reluctance of European courts to prosecute inter alia, members of the Saudi government, or French perfidy in Algeria, suggests that the risk of war crimes charges levied against the likes of Yoo is probably overblown. Breathlessly citing Pinochet in hope and fervent expectation simply ignores practical and political realities. The French for example, would rather not set a precedent for this kind of thing, given their own skeletons.
What is "meaningless" are your remarks, which are mostly beside the point.
So Super-Duper Justice Esper has decreed that the views of a sitting Supreme Court justice are beyond the pale. This is precisely the problem of allowing folks like you to become the final arbiters of what views are beyond the pale in an academic setting.
You are being a bit post-modern here. Do you know anything about the merits of Justice Thomas' constitutional argument in Hamdi? Or are you just assuming that any internet commentator must know less than a Supreme Court justice about these things?
In reality, Justice Thomas' opinion simply ignored the actual provisions of the Constitution granting Congress significant powers to regulate the military and military captures, instead assuming that because of some VERY general statements by a FEW of the framers (mainly Hamilton, who wanted a stronger executive branch than was ultimately adopted) about how important the executive branch was in wartime meant that there was no way that Congress could have any power in this area.
I am the last to claim that Supreme Court cases are easy, but Thomas' opinion was an embarassment; what he wrote has nothing to do with the actual text of the Constitution or the 200 years of caselaw, such as MacArdle and Youngstown Sheet &Tube, which rejected his position. If you want to defend Thomas' interpretation, do it on the merits. I doubt you really can.
Put aside the merits. Do you believe, absent separate evidence of bad intent, that prosecuting, disbarring or de-tenuring Yoo is possible, and if so advisable, based on arguments which, if I understand you correctly, you think would be endorsed by a sitting U.S. Supreme Court Justice?
Of course I do. Didn't you know that we Straussian/Neocon Conspirators are speaking through Justice Thomas?
If you want to defend Thomas' interpretation, do it on the merits. I doubt you really can.
Although I am a scholar of the Framers (and Hamilton in particular), I have not yet taken up the challenge of authoring a scholarly piece defending such a position, which you apparently think is not beyond the pale for those of us in political science departments.
But if law schools find such a view beyond the pale, why shouldn't political science departments as well (and believe me, many would)? Where does it end and who gets to become the final arbiter?
I don't think I made any comment about whether Justice Thomas' views on executive power belong on a law school faculty. I only spoke of people who want to dismantle the edifice of binding international human rights law that constrains US power. Those are two separate issues.
LM:
I take no position on stripping Yoo of tenure at this point. I do think that UC Berkeley should commence an investigation, and it shouldn't hide behind the issue that the government hasn't prosecuted or disbarred him, because that may happen for political or prudential considerations unrelated to Yoo's guilt or innocence.
The thing to remember about this is that we really don't know the key facts. We know that Yoo authored an awful memo and gave lousy advice to his client, thereby facilitating torture. That's enough for a bar sanction. What we don't know is whether Yoo agreed beforehand that he would author a memo authorizing the administration's interrogation tactics (which constituted torture). If he did that, he conspired to commit torture and is guilty of a serious federal crime. But we don't know whether that happened. It could have also been simple crass careerism, i.e., Yoo giving his employers the memo he felt they wanted.
Until we know, though, I would suggest that while it is too early to call for Yoo to be stripped of tenure, it is also too early to argue that he shouldn't be. There are certainly possible factual scenarios under which Yoo committed a serious, violent felony that carries a very long prison sentence. People who are tempted to circle the wagons ought to slow down (as should the people who are already calling for his head on a platter).
And if I'm following the argument correctly, Justice Thomas also is necessarily part of a conspiracy to allow torture, and any criminal or bar sanction faced by Yoo should also be faced by Thomas.
"Bad" advice. More like evils advice. At best, Yoo's actions were at the level of a 1960's lawyer who prided himself on helping companies maintain an all-white workforce in avoidance of early anti-discrimination laws. "If you structure your corporate structures and government contracts like this, you can still keep your company almost entirely white, and keep the few blacks you have to hire out of sight." (Example adapted from a book by Stephen Carter)
I've had a client ask about a loophole in a no-contact order with the young woman he was convicted of raping. He had a point, but I just advised him that regardless of the details of the order, he should avoid her.
Yoo actively helped Bush torture people. He's scum. Maybe Berkley is contractually obliged to keep the scumbag on campus, but he tarnishes any faculty he's a part of.
@Michael B: Too bad you didn't notice I wrote "each within the range of their own jurisdiction". Last time I checked neither the ECJ nor the ECHR has/had anything to say about Belgium's or anyone's foreign policy towards Rwanda. That goes for national courts, too, I imagine.
You acknowledge "that we really don't know the key facts," which apparently is why you are in favor of Berkeley conducting an investigation. Setting to one side any dispute about possible implications for academic freedom, what makes you think that Berkeley has the institutional capabilities necessary to discover the relevant facts in this case? It has no subpoena powers, for example, so it could not compel the production of witnesses or documents. I'm sure that universities do on occasion investigate their academics for various misdeeds, but Yoo's case seems rather different from more conventional investigations; it's not like he is being accused of something mundane like plagiarism, which can effectively be investigated by a university.
That's the kind of evil Yoo engaged in.
Fine. We disagree. First of all, that doesn't make me dishonest.
Second, I really don't see your point. gattsuru wrote, in effect: "the question of X is not relevant to whether procedure Y works, only to how well it works and some related matters." I responded that the question of X is in fact relevant to whether procedure Y works, especially since there is little or no practical difference, in this case, between "works badly" and "doesn't work."
I don't know if anyone cares about this :)
The whole purpose of a politically motivated investigation is to leverage one item that may or may not be bad, but is currently held in low esteem, to get in the door to look at everything else. Perhaps there are some things that were done over his career that individually are no big deal, but when seen together during this would be able to be used to justify some sort of sanction or dismissal.
For anyone suggesting to have an investigation, to suggest that there is even the remotest possibility that a non-governmental agency could determine all the facts involved in the memo issue is laughable. As you surmised, Boalt has no ability to compel anyone to do or say anything.
In fact, I suspect that many will volunteer to provide their own negative analysis, and Yoo's inability to produce evidence to the contrary (he can't disclose classified discussions or documents) will be held against him circumstantially.
And of course, many will use the mere existence of the investigation (even if they participated in the campaign to make it happen) to suggest that there must be something wrong in order to have an investigation in the first place.
It is for all these reasons that I think this is a bad idea.
If we keep defining evil down like this, when real evil comes no one is going to listen to the warnings.
The consequences of more conventional investigations are a good deal more severe than losing one's job. In fact Yoo's resignation would simplify the whole matter. I'm sure he could get tenure at Regent or Ave Maria fairly easily.
Defining evil to include systematic torture is "defining evil down"?
As for the Yoo controversy, it is doubtless true that many/most of his critics and those calling on Berkeley to investigate Mr. Yoo are probably political opponents of his. I don't think they are necessarily people who irrationally value "international law" over domestic law (adherents to Prof. Bernstein's "cult"). Many think Yoo was aiding and abetting torture through the advice he was giving. They also suspect that Yoo knew he was twisting the law to give this advice, ergo, his conduct was knowingly wrongful (and not the work of a clueless hack). I think Yoo is an ideologue, who may have believed everything he wrote. Berkeley's Dean, it appears, shares this view, which is why he is in favor of leaving Yoo alone.
I don't recall the story where Yoo tortured anyone. I seem to recall that he wrote some opinions that matched his long-held beliefs. It is possible for reasonable people to disagree about those opinions. But his having expressed them does not make him evil.
He didn't torture with his own hands. So what? That he believed in what he did is not exculpatory. As to
Reasonable people can disagree about torture just as reasonable people could disagree about whether the Klan should have been allowed to lynch and terrify "uppity" blacks (and have legal advice as to how far they could go without consequences from friendly judges and prosecutors). Aiding and abetting torture is evil, even if Yoo believed in it.
You're joking right? You sound like an old-time tobacco lobbyist talking about proof that tobacco causes cancer or a
creationistintelligent design advocate demanding proof of evolution. It's the same game.