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"Thoughts From A Berkeley Professor on the Yoo Case":
Read it over at Brian Leiter's Law School Reports.
MarkField (mail):
The message rambles a bit; I frankly don't see the connection between accepting refugees from Nazi Germany and accepting John Yoo. It's kind of insulting, actually.

Not terribly accurate either -- Prof. Daube (a truly great professor, by the way) came to Berkeley in 1970 from Oxford, as I recall, and had been out of Germany for 30 years or more before he came to Boalt. Prof. Ehrenzweig came to Berkeley in 1948 (not "during the WWII years" even under a generous interpretation) after stays at Chicago and Columbia.

Nor do I think the writer has understood the point being made by Yoo's critics: that it is NOT Yoo's opinions which are at issue (otherwise Alan Dershowitz would be a target), but the fact that his memos constituted (heinous) actions. Thus, the references to Chris Kutz's work strike me as irrelevant.
4.24.2008 1:10am
MarkField (mail):
Forgot to add: I seriously doubt that any of the German refugees at Boalt (yes, there were more) would have had felt very comfortable if they had thought that the American equivalent of Alstoetter was their colleague.
4.24.2008 1:16am
Boalt 3XL (mail):
I thought the comment about the impact of German refugees referred to Berkeley as a whole, rather than just to Boalt. Also, although he wasn't at Boalt, Hans Kelsen certainly qualifies as both a war refugee and a significant scholar.

The references to Kutz's work aren't irrelevant. Rather, they prove exactly the opposite of the point for which they are cited by the author of the original message. To quote Kutz:
"To the extent that the Bybee memo goes beyond the hypothetical exploration of an ex post defense to a charge of torture and actually lays out ex ante an institutional space for torture (grounded in the qualified immunity of officials relying on its legal advice), I believe it is tantamount to criminal complicity."


I don't think the original author meant to say that this view is "representative" of the Boalt faculty, although it should be.
4.24.2008 3:32am
A. Zarkov (mail):
Leiter writes:

"... it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses."


This man lives in the gamma quadrant. The so-called "free speech" movement was anything but. After FSM, UCB and other campuses, both public and private, became far less tolerant of new, challenging, and unpopular ideas. This is the campus where Professor Arthur Jensen required continuous campus police protection. Why? He published a scholarly paper on genetics and intelligence. The police told him not even to go to the library without an escort. David Horowitz can't speak there without guards to protect him. That is when he can speak at all without campus thugs trying to shout him down. What is permissible after FSM? Virtually anything anti-American, pro-Palestinian, anti-white and pro-feminist. After FSM the rot spread to other campuses like Cornell where according to resident professor Alan Bloom a student (now know to have been Alan Keyes) had his life threatened by a black professor for refusing to attend a peace demonstration. The administration refused to do anything and the student ultimately transfered to Harvard.

Let's also be clear that many of the European imports that Leiter heaps praise on were members of the Marxist Frankfort School. We can thank them for launching "critical studies" movement which has polluted the American academy and created the grievance industry we now have to live with on campus.
4.24.2008 4:03am
OrinKerr:
Let's also be clear that many of the European imports that Leiter heaps praise on were members of the Marxist Frankfort School. We can thank them for launching "critical studies" movement which has polluted the American academy and created the grievance industry we now have to live with on campus.

Yes, obviously we are all suffering terribly because of this. It is oppressive and victimizing for conservatives such as ourselves. Er, um, . . .
4.24.2008 4:17am
Federal Dog:
"it is NOT Yoo's opinions which are at issue (otherwise Alan Dershowitz would be a target), but the fact that his memos constituted (heinous) actions"


Did he intentionally falsify applicable law? Did he intentionally falsify facts? In the context of writing a memo for any client, those would be the only reasons I can think of off-hand to call an attorney's actions "heinous."
4.24.2008 8:44am
rxlawstudent:
Zarkov,

The words you cite aren't Leiter's own. The body of the Leiter post was written by a Berkeley law prof.
4.24.2008 8:55am
wm13:
I don't follow Prof. Kerr's snark. I don't think anyone could read the FIRE website, or follow the Duke lacrosse case, without acknowledging that universities are horribly oppressive to those of the wrong sex, skin color or political opinion. (Duh, that's why Duke is paying out so much money in damages.)

Now the connection between the generally despicable conduct of American universities and the Frankfurt school is rather tenuous, so if that was Prof. Kerr's point, then I am with him, though he isn't writing very clearly.
4.24.2008 9:49am
PLR:
The letter seems pretty inconsequential to me. The professor feels pain personally and as a member of the university community, and he's worried what others think about professors who hang out with such a person (shades of Obama-Ayers, maybe). And he'll defend Yoo's right to say what he wants.

But he'll change his mind on a "criminal conviction or the like." (I wonder if he means a conviction in U.S. courts of a crime constituting a felony under domestic U.S. law, which conviction becomes final and non-appealable and which entails actual jail time which is not commuted or otherwise relieved by an executive holding clemency powers.)

I don't think Yoo should use this professor as a character reference.
4.24.2008 10:02am
PLR:
Forgot to add that I don't quite understand why the letter writer seems to want to remain anonymous. I suppose he or she probably won't remain so.
4.24.2008 10:07am
Anderson (mail):
I do wish Leiter would quit embarrassing himself, as at this Balkinization thread. He repeatedly mischaracterizes the issue and then refutes the mischaracterization.

One commenter pointed to this post of Leiter's, "downright appalling, shot through with factual misrepresentations &false cheap shots." Click through &you'll see her point.
4.24.2008 10:19am
Anderson (mail):
launching "critical studies" movement which has polluted the American academy

Well, that's only to be expected, because their "pollution" was precisely what the Nazis were worried about.

If only we had listened to Goebbels!
4.24.2008 10:21am
Balkin Fan (mail):
Anderson you're just defensive because, as Leiter would put it, he 'wiped the floor' with you and your 'irrational' arguments for firing John Yoo.
4.24.2008 10:55am
AntonK (mail):

"The message rambles a bit; I frankly don't see the connection between accepting refugees from Nazi Germany and accepting John Yoo. It's kind of insulting, actually."
Yes, insulting and intellectually mousy. But since the message you hear is the monotonous drone of the Angry Left, you would expect it to be weak, insipid, and dishonest.
4.24.2008 11:04am
Anderson (mail):
Balkin Fan, I'll allow others to inspect the thread &see what they think. Leiter continually fails to come to grips with the positions actually argued by his opponents, which is not usually the sign of a cogent position.

I *had* forgotten his closest approach to the issue, which I quote:

There is no evidence that Yoo is an incompetent lawyer; indeed, the evidence that he is quite competent is overwhelming: his education, his clerkships, his professional experience, his teaching experience at Berkeley and other law schools, his professional scholarship. On the other side is the memo. Even if Anderson believes that it is grounds for disbarment (or whatever) to fail to cite the case that Anderson (or whomever) believes decides the issue, none of this warrants any finding of incompetence. He was more advocate than neutral advisor on this issue; that is not incompetence. It is bad lawyering.

Naturally, I and others on the thread found the distinction less than clear. At some point, surely, "bad lawyering" becomes "incompetence"?

Quite frankly, and I apologize if this seems ad hominem, but what strikes me about Leiter's argument is how starkly it casts the difference between academia and legal practice. Look at all the stuff that Leiter urges in Yoo's favor -- academic this, academic that.

OTOH, there's "the memo" (more than one, of course). In other words, there's what Yoo actually did as a lawyer.

My point, which may not be the same as that of Mark Field and others, is that when your job is training future lawyers, your incompetence as a lawyer is a particularly valid consideration.

Prof. Leiter, whose voluminous C.V. seems to include one year as a "litigation associate," seems to think that law is just another academic subject, like art history or theology. It can be treated as such, but at a law school, it's more than that -- it's vocational training.

What does Yoo's example teach law students about their professional duties as lawyers?

Perhaps there should be an academic "law department" in the liberal arts faculty that is administratively distinct from the law school. I would have no objection to Yoo's teaching in the former, at least unless and until he's convicted of war crimes.
4.24.2008 11:04am
AntonK (mail):

"... it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses."
Oh, that's sweet! For more on the campus free speech movement, see here, and especially here.
4.24.2008 11:08am
Constantin:
This whole issue is an easy one for me, because in addition to all of the academic freedom issues, I happen to agree with the substance of Yoo's memos.
4.24.2008 11:08am
Anderson (mail):
Constantin, if you were to write up your favorable analysis of Yoo's memos &post it, you would be doing a great service.
4.24.2008 11:11am
Balkin Fan (mail):

Leiter continually fails to come to grips with the positions actually argued by his opponents


I don't know, that seems a bit strong given that the only evidence is that he didn't take you very seriously. The Berkeley prof is not that far off in describing Leiter's long analysis as "bringing some sanity to a sad and challenging affair."
4.24.2008 11:16am
Anderson (mail):
I don't know, that seems a bit strong given that the only evidence is that he didn't take you very seriously.

BF -- it seems a bit odd to call you that -- Leiter insists on framing the Yoo issue as "academic freedom."

The counterargument is that Yoo is not being criticized for his teaching (unexceptionable, from what I hear), his scholarship (lousy, but is that so unusual?), or his opinions (like hemorrhoids, right?). He is being criticized for his post-tenure jaunt at OLC and for his work as a lawyer there, not as a law professor.

Leiter indeed does not take that argument seriously; indeed he shows no signs of understanding it, to judge by his comment that I quoted above.

However, failing to take your opponents' arguments seriously is not always a sign of being right.
4.24.2008 11:24am
David M. Nieporent (www):
It can be treated as such, but at a law school, it's more than that -- it's vocational training.
It doesn't even train you to pass the certification exam for the profession, let alone serve as actual vocational training.

In any case, it's unclear to me why you think that bad lawyering outside the classroom -- no matter how bad -- has any bearing on the training provided inside the classroom. There hasn't been a single allegation, let alone a credible one, that Yoo has ever taught anything incorrect or improper in any of his classes. Which leads one to think that you're ginning up this argument not because it's valid, but because you're desperate.

If tenured law professors were to be investigated for the purpose of tenure-stripping because of the quality of their lawyering, how about those guys who pushed the incredibly poor arguments in the FAIR v. Rumsfeld litigation?
4.24.2008 11:27am
Anderson (mail):
In any case, it's unclear to me why you think that bad lawyering outside the classroom -- no matter how bad -- has any bearing on the training provided inside the classroom.

That's an argument that can be made, though I think it's a remarkable one -- "yes, X is a bad lawyer, but he's just the person to teach lawyers."

Regardless, the goal here, please recall, is to urge that Yoo's school should investigate whether or not to revoke his tenure. I think that conspicuously bad lawyering raises questions that should be investigated, but it may well be, on balance, that a well-informed committee of law professors would decide that Yoo's tenure should *not* be revoked.

The issue here is whether such an investigation is simply out of bounds, or whether it's called for.

As for the FAIR case, the distinction has often been made re: Yoo that advocacy is a different standard from advice. As an advocate, one makes the best arguments available if the client insists on pursuing the case. The lawyer's duty is to withdraw only if he or she would have to make frivolous arguments -- and that is rare.

Was there any finding by any of the courts through which the appeal wended its way, that the FAIR attorneys needed to show cause why they should not be sanctioned? Didn't they actually *prevail* at some step of the litigation?

Now, if they advised the client that they were sure to win, didn't advise the client of contrary authority, failed in their duties as counselors -- well yes, then I would think that an investigation would be proper there, too.
4.24.2008 11:45am
frankcross (mail):
Anderson, Leiter directly addresses your point. He suggests that you can criticize him for his outside work, but why should that be a reason to deny him his inside work, so long as that is fine. It's like when universities sought to fire liberal faculty for outside work on behalf of clients or membership in the National Lawyers Guild (which has been known to make some pretty bad legal arguments). That's what academic freedom is to protect against.
4.24.2008 11:49am
MarkField (mail):

The references to Kutz's work aren't irrelevant. Rather, they prove exactly the opposite of the point for which they are cited by the author of the original message.


Good point.


Let's also be clear that many of the European imports that Leiter heaps praise on were members of the Marxist Frankfort School.


None of the professors at Boalt (Ehrenzweig, Daube, Riesenfeld, Kessler) were Frankfurt School members, so far as I know.


Did he intentionally falsify applicable law?


That's the accusation, and it appears (to me) that the evidence supports this conclusion. I should emphasize, though, that all the facts are not yet known.
4.24.2008 11:49am
Tony Tutins (mail):

[Leiter] suggests that you can criticize him for his outside work, but why should that be a reason to deny him his inside work, so long as that is fine.

Well, this explains why the U of I granted Bill Ayers tenure, but not why Boalt Dean Dwyer had to resign.
4.24.2008 12:01pm
Anderson (mail):
He suggests that you can criticize him for his outside work, but why should that be a reason to deny him his inside work, so long as that is fine.

He *says* that, but he does not explain *why*. Assertion is not argument. There have already been more arguments in this thread to support Leiter's position than Leiter has troubled to make himself.

Incidentally, calling the Frankfurt School "Marxist" is a bit much -- they certainly were not doctrinaire Marxists, and "Marxists" had very little patience with them. The Wiki article is relatively good on the subject. God knows, Adorno could scarcely be called a Marxist.
4.24.2008 12:05pm
Adam J:
frankcross - there's a difference between legal advocacy and a legal opinion that every lawyer should be aware of though. If Yoo was advocating this position for the government, or merely writing an article on it, I would certainly think less of him, but it would be unfair for him to lose tenure or be prosecuted in any way. Yoo was not doing this however, he was writing a legal opinion letter, designed to immunize the government because they will rely on his opinion for their actions. Legal opinions, like all expert opinions, should be written from a disinterested position, which I think it's very likely Yoo did not do. I find it interesting that the conservatives who roundly criticize expert opinions suddenly think it's okay in this situation (under the guise of "academic freedom"). This isn't about academic freedom, this is about whether we want honesty from our experts when they give opinions with legal implications, or whether we want advocacy.
4.24.2008 12:17pm
wm13:
Adam J., maybe you can point us to some examples of conservatives demanding that a professor be stripped of tenure because of an expert opinion that he wrote.
4.24.2008 12:21pm
Tony Tutins (mail):

Yoo was not doing this however, he was writing a legal opinion letter, designed to immunize the government because they will rely on his opinion for their actions.

Yes, his opinion letter was not mere academic theorizing. I would say it was "operative language." Would Leiter still want to forestall Berkeley's internal investigation if while on sabbatical Yoo had written contracts to buy and sell slaves? What if the contracts involved buying children from their parents for the purpose of child prostitution? Assume slavery and child prostitution were legal in the relevant jurisdictions.
4.24.2008 12:24pm
Anderson (mail):
Tutins, you have a wicked eye for analogy.
4.24.2008 12:29pm
David M. Nieporent (www):
Anderson, the problem is that Leiter is reacting to arguments that are pretty sophistic. This "we only want Berkeley to investigate" line -- come on. "Investigate" what? Yoo is being condemned for the contents of the memo, and the contents of the memo are public. None of the public outrage is about Berkeley's failure to investigate Yoo, but about Berkeley's failure to dismiss Yoo. Your claim that Yoo was incompetent/dishonest certainly isn't contingent on the results of any "investigation." Leiter's critics (and Yoo's) at Balkin certainly aren't taking the position that we need more facts to decide whether to execute Yoo or merely imprison him for life for war crimes.

Or this, "His memos didn't mention contrary authority" line -- again, please. If Yoo had stuck in a couple of paragraphs saying, "It's possible that this argument won't hold. In Youngstown, the Court said yada; applying that to these facts could mean X. Nevertheless, the Youngstown argument is likely bogus, because of A, B, and C," exactly the same events would have played out, and nobody would be saying, "Well, Yoo cited Youngstown, so he's off the hook."

I'll repeat the question I posed over at Balkin: can you identify any law professor, at Boalt or elsewhere, who has lost his tenured position solely because of incompetent outside legal work? (By "solely" I mean to exclude a professor who was disbarred because of outside legal work; the loss of tenure in that case would be attributable to disbarment, not the quality of the work.)
4.24.2008 12:33pm
David M. Nieporent (www):
Would Leiter still want to forestall Berkeley's internal investigation if while on sabbatical Yoo had written contracts to buy and sell slaves?
See what I mean? "Investigation" of what?
4.24.2008 12:34pm
Anderson (mail):
None of the public outrage is about Berkeley's failure to investigate Yoo

Public outrage? Where?

I can't speak for the outraged public, just for myself. Sorry about that.

Or this, "His memos didn't mention contrary authority" line -- again, please. If Yoo had stuck in a couple of paragraphs saying, "It's possible that this argument won't hold. In Youngstown, the Court said yada; applying that to these facts could mean X. Nevertheless, the Youngstown argument is likely bogus, because of A, B, and C," exactly the same events would have played out, and nobody would be saying, "Well, Yoo cited Youngstown, so he's off the hook."

Okay, keep inventing your interlocutor &putting words in his mouth, and you'll have this argument sewed up in no time.

I think that acknowledging &distinguishing proper authority would've made all the difference in the world, professionally speaking.

Yoo would still have been wrong, b/c the authorities do not actually support his views; but it would be much, much more difficult to prove that he was SOOOOO wrong as to be incompetent, or that (as Adam J, above, assumes) he wrote the memos as OLC get-out-of-jail-free cards.

As for your question at Balkin's, I gave my answer, but again it's premised on the idea that there should be an investigation (a real one, not a kangaroo court).

But you assume I'm arguing in bad faith, so that won't interest you.
4.24.2008 12:42pm
Anderson (mail):
See what I mean? "Investigation" of what?

You're changing the subject; Tutins was addressing the distinct issue of what outside-the-academy legal work, if any, would be so egregious to Leiter et al. that they would think it should raise an issue of tenure revocation. That's an argument about Leiter's extreme position, not about what to do with Yoo.
4.24.2008 12:44pm
Thales (mail) (www):
"I don't follow Prof. Kerr's snark. I don't think anyone could read the FIRE website, or follow the Duke lacrosse case, without acknowledging that universities are horribly oppressive to those of the wrong sex, skin color or political opinion. (Duh, that's why Duke is paying out so much money in damages.) "

I appreciate the FIRE's work as a free speech advocacy organization (and they quite fairly represent oppressed academics and students who are left of center as well). But what on earth does the Duke lacrosse case and the university's response have to do with free speech? The university didn't prosecute the accused students or oppress them on the basis of race or speech, it took the (perhaps cowardly and hedging) actions that any administration would (should?) take with any students accused of serious violent crimes: it shut down the associated lacrosse team temporarily, and suspended some students for making what appeared to be violent threats. But actually the Duke president seems to have done what most would do, without himself getting overly hysterical and without giving in to the zanier academics on campus.

See this article
4.24.2008 1:02pm
Adam J:
wm13- one needs look no further than the Conspiracy's own David Bernstein & his criticisms of expert witnesses. A lawyer providing a expert opinion has the same duties as any other expert witness (or judge for that matter) providing an opinion- to be honest and unbiased. I haven't heard any occasions where this relates to tenure, but I've heard many occasions where conservatives call for the stripping of an expert's credentials when the opinion they rendered was ludicrious &clearly the product of advocacy. If you don't believe me, merely google "expert witness reform".
4.24.2008 1:28pm
frankcross (mail):

Adam J, you've given away the game when you write:

Legal opinions, like all expert opinions, should be written from a disinterested position, which I think it's very likely Yoo did not do.

This never happens. All legal opinions, like other opinions are ideologically or otherwise biased, to a lesser or greater degree. That's why the Administration hired Yoo rather than Sunstein, to have someone biased for their positions. Your standard would invalidate anyone who has every issued them.
4.24.2008 1:33pm
Anderson (mail):
OT but too funny not to share: Naturally, The Claremont Review loves Yoo's book on war powers, and its reviewer, one Joseph M. Bessette, has this to say:

It appears, then, that the president is not allowed to commence "total war," because only Congress may "declare war." If this is right, then only Congress may commence, or authorize the commencement of, total war. Can we conclude that if the issue is total war, then to "declare" war is, in fact, equivalent to "levy," "engage in," "make," or "commence" war?

This conclusion seems to shift the debate from the difference between "declare" and "commence" to the difference between "total war" and "hostilities short of that." Would, for example, an invasion of Iran to change the regime, eliminate the nuclear threat, and establish a liberal democracy there involve the kind of "total war" that, apparently, only Congress can authorize, or would such actions amount merely to "hostilities short of that"?


Gee, I dunno -- obviously, reasonable constitutional scholars can differ!
4.24.2008 1:40pm
MarkField (mail):

[Leiter] suggests that you can criticize him for his outside work, but why should that be a reason to deny him his inside work, so long as that is fine.


In the Balkinization thread linked by Anderson, Prof. Leiter agreed that some conduct outside the academy would be grounds for termination. As Tony Tutins noted, Boalt itself seems to accept this view, as evident in Dwyre's case.

One of the principal disagreements on this topic is that it seems obvious to some of us that Yoo's behavior amounted to "conduct", while others characterize it as the "mere" expression of opinion.


"Investigation" of what?


I've listed a number of factors in my posts at Balkinization. Repeating off the top of my head: Whether Yoo was told, as Scott Horton states, that Yoo's position was untenable; whether Yoo responded, as Scott Horton states, that he intended to immunize people from prosecution; whether Yoo knew of previous instances of torture; what Yoo was told was the purpose of the memo; whom did he think would see it and/or rely on it; what his explanation is for his omission of Youngstown analysis and relevant law concerning pain; Berkeley's own previous application of its policies to professors on leave; the terms under which Yoo left and returned. I'm sure there are many more.
4.24.2008 1:48pm
andy (mail) (www):
Is it clear that Yoo's memo is as shoddy as everyone seems to say it is, or has the memo been unduly disparaged? I do not know enough regarding the applicable law to evaluate it myself (nor do I have the time to learn it). However, I am somewhat surprised by the strength of the insults cast on the memo ("as wrong as he could be"). Do moderate/conservative commentators agree that the memo is severely flawed?

Also, I don't think people are taking into account the function and status of the memo, but are instead treating it as if it were a law review or article. Legal opinions/memos provided to clients are necessarily different from the gobbledygook published in top law reviews.
4.24.2008 2:12pm
David M. Nieporent (www):
Berkeley's own previous application of its policies to professors on leave; the terms under which Yoo left and returned. I'm sure there are many more.
Those certainly don't need "investigation" in the sense we're talking about, in that Berkeley already knows those things. As for the others, are you contending that there are answers to those questions which would cause you to conclude that Yoo's tenure should not be revoked? For instance, is there any "explanation" Yoo can give for not mentioning Youngstown that would satisfy you?

In any case, I think you make Prof. Leiter's point -- and I agree with him about as often as I agree with Osama Bin Laden -- about the lack of institutional competence to conduct such an investigation. How is Berkeley supposed to find out the answers to the questions you raise? Do you think that Yoo is going to discuss who in the executive branch/OLC told him these facts, and what he was told? Is he even free to do so?
4.24.2008 2:18pm
Adam J:
frankcross- Yoo wrote an opinion that nearly all legal scholars, liberal and conservative, have agreed is BS. That's not a legal opinion with some degree of ideologically bias, that's an ideological opinion with a flawed legal argument attempting to support it. If you believe this is okay, then you think it is okay for rule of law to be trumped by personal ideology- something conservatives have been blasting liberal judges for some time now.
4.24.2008 2:25pm
davod (mail):
Was Yoo's memo the only advice the Administration relied upon when making its decisions on this matter?
4.24.2008 2:31pm
Prufrock765 (mail):
Re: Anderson at 10:45
So let me get this straight

If Yoo had written, signed and filed a brief on this issue with the exact same analysis, and then argued it before the US Supreme Court, he would be off you the (or, at least your hook).
But because his venue was an internal memo that was not even discoverable in litigation, he should be cashiered?
4.24.2008 2:33pm
frankcross (mail):
Adam J, it's not BS and what you say is true. Why do you think that professors are almost always on the same ideological side of issues when they do briefs? It's because they have an ideological opinion and cobble together the best legal argument, sometimes flawed, for it.

And much the same is true of justices. I wonder if those who favor Yoo losing tenure think that most past justices should be impeached. Because they have commonly made flawed legal arguments, ignored precedents, etc.
4.24.2008 2:35pm
MarkField (mail):

Is it clear that Yoo's memo is as shoddy as everyone seems to say it is, or has the memo been unduly disparaged?


I quoted some characterizations of the Yoo memo in the Balkinization thread. In addition to those, consider that (1) the Administration itself has formally withdrawn the memo; and (2) even Yoo's defenders on the issue of tenure do not defend his analysis. Most, possibly all of them, have specifically condemned his reasoning. A few have said that his analysis was no worse than stuff they see in law review articles (I'm not sure if that's a defense or not :)).


Those certainly don't need "investigation" in the sense we're talking about, in that Berkeley already knows those things. As for the others, are you contending that there are answers to those questions which would cause you to conclude that Yoo's tenure should not be revoked? For instance, is there any "explanation" Yoo can give for not mentioning Youngstown that would satisfy you?


I recognize that due process is a foreign concept to the wingnut right, but some of us actually believe in it. The Berkeley standards require an investigation before any charge is brought by the Chancellor. The Chancellor must review the investigation and conclude that conduct violates the standards and that the charges can be proved (my paraphrase). That's an important safeguard, and Yoo's entitled to it.

As for Youngstown, of course there could be exculpatory factors. For example, Yoo might have been told, "John, don't address Youngstown. X is dealing with that in a separate memo."


Was Yoo's memo the only advice the Administration relied upon when making its decisions on this matter?


Exactly the kind of question the investigation should examine.
4.24.2008 2:52pm
Anderson (mail):
If Yoo had written, signed and filed a brief on this issue with the exact same analysis, and then argued it before the US Supreme Court, he would be off you the (or, at least your hook).

His client might want to sue him for malpractice; I'm not sure I'd endorse the torture memos even as briefs, but the point is that advocacy can be (&usually is) much more one-sided than advice.

But because his venue was an internal memo that was not even discoverable in litigation, he should be cashiered?

First, the point is to investigate, not to fire him out of hand.

Second, the publicity of the memo is not relevant. What's relevant is his professional duty to his client. As counselor, an attorney has a duty to advise the client objectively about the law, including the possibility that courts may view the law differently than the lawyer does.

This doesn't require the lawyer to cover "everything" in a memo -- who could? -- but it's possible for a memo to be so neglectful of obviously relevant possibilities that it's evidence of malpractice.

N.b. that all this talk of "incompetence" depends on accepting what is probably a white lie -- that Yoo really was just trying to inform his clients about the law.

It seems more likely that Yoo was providing OLC cover for illegal acts already committed and/or to be committed. But that is beyond Berkeley's ability to investigate or prove, barring a rather surprising confession from someone or other.

So, accepting Yoo at face value, the question becomes, how and why did he come to offer such incompetent counsel, and does it have any bearing on his fitness to teach law? Or, as Mark Field frames it, does it violate Berkeley's canons of intellectual honesty?
4.24.2008 3:06pm
A. Zarkov (mail):
Anderson:

"Incidentally, calling the Frankfurt School "Marxist" is a bit much -- they certainly were not doctrinaire Marxists, and "Marxists" had very little patience with them. The Wiki article is relatively good on the subject."

Wikipedia is not to trusted in many areas and the Frankfurt School is no exception. Notice that they don't even mention Carl Grünberg, the first director of the Institut für Sozialforschung. He was a orthodox Marxist who specialized in the history of the workers movement.

Now it's true that as a whole the Frankfurt School used Marxism as a starting point for analysis rather than automatically assuming it to be the norm. Nevertheless one of the early members of the School was Herbert Marcuse who later emigrated to the US and served as an inspiration to the leaders of FSM. To be sure Marcuse's brand of Marxism alters the traditional one by replacing the working class with students, racial minorities and the lumpen proletariat. These groups currently serve as some of the love objects of the current grievance industry.

So strictly speaking you're right in the sense that most orthodox Marxists would not consider the Frankfurt School as a whole and Marcuse in particular as Marxists.
4.24.2008 3:11pm
Prufrock765 (mail):
So this has everything to do with process and nothing to do with ideology?
Fill in the blank:
"Based upon what we know now, we need to investigate John Yoo's performance in the DoJ to find out whether he
___________________________________."

Now if the answer is "demonstrated gross incompetence by his advice to his client", or some variant thereon, two followup questions:
1. what if his client refuses to impugn his behavior? they are the ones who should know, after all, how well or poorly he served them.
2. Is there room for "I just had a bad week the week I wrote the memo"?

Additionally, are you going to make all law professors demonstrate their entitlement to continued tenure by taking on similarly rigorous private work?
If not, then Yoo was guilty of overestimating his own ability to do a job (actually practice law) that by many accounts, has no bearing on his ability to be a professor.

Nah, you're right, ideology doesn't have anything to do with this.
4.24.2008 3:13pm
Adam J:
Frankcross- briefs aren't the same as legal opinions- if all Yoo did was advocacy then no big deal- this wasn't advocacy. When my firm writes a legal opinion, we don't give a crap about ideology or what we think is should be right, we just make sure that we are right- cause there are dire consequences for ourselves and our client if we are wrong. Most lawyers have developed the ability to distinguish between their ideology and view the law objectively. When writing an opinion you should be treating the law objectively, and when writing a brief you are free to try and persuade the law to reflect your ideology.

Also, if a judge wrote an opinion that he knows has no basis in the law, than yes, I believe that is grounds for impeachment. The trick of course is proving that Yoo (or a judge) knew this... which is unlikely to occur and why he will probably should end up not guilty.
4.24.2008 3:24pm
PLR:
Is it clear that Yoo's memo is as shoddy as everyone seems to say it is, or has the memo been unduly disparaged?

Heck, I don't really know if any of these facts are at all relevant or mean anything because the law is so fuzzy and all, but ...

-- The OLC during Gonzales' tenure at DOJ retracted it.

-- Mukasey's DOJ is investigating the process by which the OLC released such a crappy misstatement of applicable law.

-- Upon Yoo being sued personally by people claiming (a) his memo was bogus, and (b) they were tortured as a result, Yoo decided that he would really rather talk about standing than the merits of the petition.
4.24.2008 3:29pm
Ken Arromdee:
The university didn't prosecute the accused students or oppress them on the basis of race or speech

He said sex too. They were prosecuted for being white males (sex and race).
4.24.2008 3:32pm
Adam J:
Prufrock- "what if his client refuses to impugn his behavior? they are the ones who should know, after all, how well or poorly he served them."

Wierd argument... especially considering the government quite possibly enlisted Yoo for the purposes of immunizing them from committing illegal acts. In that is the case, they would consider themselves poorly served if Yoo had accurately stated the law &consider themselves well served by the memo that was written.

On the other hand, I think 2 is a good argument, tough to get in Yoo's head and really know if he thought his opinion had merit or not.
4.24.2008 3:37pm
davod (mail):
"His client might want to sue him for malpractice"

I quite often listen to some of the more spaced out liberal arguments to the SCOTUS and think the same.
4.24.2008 3:43pm
frankcross (mail):
AdamJ, that makes sense except the Administration did not want an honest opinion like your clients do, if it did it wouldn't have hired Yoo. It wanted somebody who would tell them how far the law could be stretched to reach the results they wanted.

And these things never have "no basis in the law" because the law is sufficiently indeterminate. And, as you say, I'm pretty sure Yoo sincerely thought his legal advice was correct; ideologues commonly do. The New Deal Court did pretty much what Yoo did -- ignore contrary precedents in order to uphold the policies of FDR.
4.24.2008 3:48pm
blog reading guy (mail):
What about the anonymity of the Berkeley critic? If you call out someone by name in such a big way, shouldn't you put your name on it?

How is one to interpret Leiter's position? He says that those he called war criminals and a bestiary of madmen deserve stringent tenure protection if they are profs. So is Leiter a near-absolutist regarding tenure, or were his earlier condemnations just playground trash-talking, not to be taken seriously?

As for Yoo's competence, one needs to analyze things with some particularity. Some of Yoo's conclusions have held up, or were re-affirmed by the OLC, or were approved by the DC Circuit (and later reversed), or were essentially adopted by Congress immediately after a politically split Supreme Court rejected them in Hamdan. As for presidential power in the war on terrorism, the future still needs to judge. The first scholar and lawyers who supported Roosevelt's consittutional innovations were surely outside the mainstream and without precedent, but history caught up with them.
4.24.2008 3:50pm
DCP:

frankcross- Yoo wrote an opinion that nearly all legal scholars, liberal and conservative, have agreed is BS. That's not a legal opinion with some degree of ideologically bias, that's an ideological opinion with a flawed legal argument attempting to support it. If you believe this is okay, then you think it is okay for rule of law to be trumped by personal ideology- something conservatives have been blasting liberal judges for some time now.


It's still a non-binding legal opinion.

For those of you who are so indignant over Yoo's legal analysis (and I question how qualified many of you are to make such judgements, but since I haven't dug into it myself, I'll let that pass) how can this possibly compare to something like Roe v. Wade (and its progenitor) or any other cases where the SCOTUS made sweeping pronouncements based on legal arguments that were completely fabricated out of whole cloth?

I mean, if Yoo had said, "the penumbra of our laws authorizes torture", would that make everything better?

I don't have a dog in this fight, but for a group of lawyers and academics to sit around screaming "heresy!" over an argumentative or even flimsy legal position that you disagree with is absurd. If this was the standard, we wouldn't even need lawyers - and judges would be mere rubber stamp bureacrats of the post office variety.

Yoo struck a political nerve, that's all. And we are no more entitled to demand his disbarment, firing, imprisonment or public flogging than we are the 90% of lawyers, judges and professors who have done the exact same thing albeit regarding different issues.
4.24.2008 4:02pm
Adam J:
frankcross - you're argument is that the administration didn't want an honest opinion? I suspect that you are right... except the whole idea of this plan is to engage in illegal behavior &escape criminal charges. The government has to claim that it is an honest unbiased opinion, otherwise they cannot rely up it. If Yoo willingly jumped on this little plan, then Yoo aided and abetted the government in a scheme to avoid criminal liability for illegal conduct.
4.24.2008 4:20pm
Prufrock765 (mail):
hear hear DCP,
although I would say that if Berkley wanted to decline to hire Yoo for what he had done at the DOJ, that would be fine.
Even if they wanted to deny him tenure for what he had done, that would probably still pass muster with most (?) people.
But revoking tenure for this? not even close, unless the decision is blindly ideological. And then why grant tenure at all?
4.24.2008 4:23pm
David M. Nieporent (www):
Was Yoo's memo the only advice the Administration relied upon when making its decisions on this matter?

Exactly the kind of question the investigation should examine.
And I repeat the point Brian Leiter made and that I echoed above: how exactly is Berkeley to "investigate" this? Subpoena Alberto Gonzales? Or David Addington? A university is generally not in a good position to conduct "investigations" of behavior unrelated to campus life.
4.24.2008 4:25pm
Anderson (mail):
Wikipedia is not to trusted in many areas and the Frankfurt School is no exception. Notice that they don't even mention Carl Grünberg, the first director of the Institut für Sozialforschung. He was a orthodox Marxist who specialized in the history of the workers movement.

I hear ya, Zarkov, but the rest of your comment pretty much bears out the Wiki article as to my point, and I don't think "Carl Grünberg" is really the first name (or second, third, fourth, fifth, or sixth) that most people think of when they think of "the Frankfurt School." However unjust that may be to his reputation.

Of course I wasn't relying on the Wiki article -- in my previous life, I was a grad student in English for several years -- but it was a good place to point people.
4.24.2008 4:33pm
ejo:
when your firm writes a brief, you just want to make sure you are right-now let's analyze that brilliant statement. In any two party litigation, let alone even more parties, both parties are not going to be right. in fact, with a contested motion, one of you is going to lose and, therefore, not be "right" on the facts or law (leaving out incompetent judges, of course). you say Yoo was "wrong" because the Administration withdrew the opinion-was this after they moved forward upon it but after the Administration drew fire for torture? is it "wrong" because of the pronouncements of law professors? The majority of law professors might support many things that no court or voting majority pronounces right-does that make law professors wrong? or, is it just, politically, that Yoo went over the line in actually advocating rather than attacking this country that makes him wrong?
4.24.2008 4:37pm
Anderson (mail):
when your firm writes a brief, you just want to make sure you are right-now let's analyze that brilliant statement

Are you patting yourself on the back, or does "that brilliant statement" come from someone else?

Adam J was talking about legal opinions, i.e. memos like Yoo's -- not briefs.

Yoo was advising people on how to skirt criminal statutes that imposed the death penalty. God knows, it was hugely important to get that right -- *unless* he was writing in bad faith, to provide OLC "cover."
4.24.2008 4:49pm
frankcross (mail):
AdamJ, you have this naive view that the law is determinate. The Administration wanted to push the law in its direction and give legal cover. You yourself suggested that this was not consciously violative of the law, just "motivated reasoning." So it's not a crime. Or hasn't been shown to be one, certainly. And being wrong about the law isn't a crime.

I see Yoo as sort of a William O. Douglas of the right. He may be unusually ends-oriented, but not to the point of prosecution or impeachment.
4.24.2008 4:51pm
Mark Field (mail):

And, as you say, I'm pretty sure Yoo sincerely thought his legal advice was correct; ideologues commonly do.


I'd expect the investigation to explore this issue. It's quite possible you're right, though there is evidence to the contrary (e.g., the comments from Scott Horton I paraphrased above).


how can this possibly compare to something like Roe v. Wade (and its progenitor) or any other cases where the SCOTUS made sweeping pronouncements based on legal arguments that were completely fabricated out of whole cloth?


One of the great perks of being on the SCOTUS is that it's not actually bound by precedent. If it wants to make up new law, it can. We might deplore that; we might ream the justices out for their hypocrisy or stupidity or whatever. But a Court which does that isn't violating any standard of academic discourse such as the one Berkeley has, and it isn't violating any law.

We, OTOH, are bound by SCOTUS decisions. As lawyers, we have to treat them as "the law" and discuss, distinguish or debate them.


how exactly is Berkeley to "investigate" this? Subpoena Alberto Gonzales? Or David Addington? A university is generally not in a good position to conduct "investigations" of behavior unrelated to campus life.


Boalt may very well conclude that it is unable to conduct a proper investigation. That wouldn't surprise me at all. As I said above, the purpose of the investigation is to determine if the charges are serious and if they can be proved. Thus, if Boalt can't conduct a proper investigation, it should so report and no charges should be brought at this time.
4.24.2008 4:58pm
Brian G (mail) (www):
That was a lousy defense of Yoo, if it was supposed to be one. It's a "don't lump us with him" letter.

I just wasted a few minutes of my time reading that nonsense.
4.24.2008 5:17pm
Brian G (mail) (www):
Let me add this thought:

In the legal world, which is full of leftists, if the ACLU is on the side an unpopular position, especially one unpopular with the overwhelming majority of America, they are heroes and champions of freedom, etc, you know the drill.

If a non-leftist is on the opposite side of the liberal leftist dogma, is is grounds for firing, disbarrment, blacklisting, etc.

Mr. Yoo should have wrote about the illegality of child molestation laws and argued that they violate the due process and equal protection rights of pedophiles. He would be a hero at Berkeley.
4.24.2008 5:21pm
Anderson (mail):
He would be a hero at Berkeley.

Come now, Brian -- surely you recognize that "hero" is a patriarchal, ideological interpellation that always already legitimates the existing hegemony?

Someone at Berkeley can explain it to you -- is Judith Butler still there?
4.24.2008 5:27pm
ejo:
legal opinions-then let's discuss that topic. you lay out a legal position in a matter, supposedly neutral, that is right, whatever that means given that there is no judge or jury evaluating your work. is it your argument that you will get it right all the time because the law is so clear on all issues that are out there to evaluate? who is telling you that you are getting it right? is it your position, in this specific case, that there is a vast body of law on the issues evaluated by Yoo-you know there isn't. there are vague statutes and pronouncements, with even the word "torture" not being clearly defined. if it is a matter of putting matters to a vote of law professors, I can imagine marijuana would be legal and the feds would have no ability to prosecute the purveyors of medical marijuana-how did that go when actually put to a test? finally, not to make a cheap shot or anything, but how is it that someone who actually advocated for this country would be under investigation while Bernadine Dohrn, who hates it and tried to destroy it, proudly sits on a law school faculty?
4.24.2008 5:37pm
Adam J:
ejo- if you're going to quote me, at least quote me correctly. I was talking about legal opinions, not legal briefs, if you aren't aware of the distinction you probably shouldn't even be joining this discussion.
4.24.2008 5:41pm
Anderson (mail):
ejo, you are not of course guaranteed of getting it right, which is precisely why you try to cover the topic broadly enough that all the plausible consequences are addressed -- so that, should CYA be needed, you can say, "but see here on page 32? we *TOLD* you this might happen."

Yoo is not being criticized for giving it his best try and getting it wrong.

As for your notions about how "vague" the statutes are on torture, I see today (via Dilan) that the son of Liberia's sometime dictator tried just that argument out in U.S. District Court, and didn't get very far.

The Indictment informs Defendant that he and his co-conspirators, acting under color of law and with the specific intent to inflict severe physical pain and suffering, burned the alleged victim's flesh with a hot iron, forced the alleged victim at gunpoint to hold scalding water in his hands, burned parts of the victim's body with scalding water, repeatedly shocked the genitalia and other parts of the body with an electrical device, and rubbed salt into the alleged victim's wounds. Such allegations, coupled with the statutory language contained in the Torture Statute, certainly advise the ordinary person of prohibited conduct with sufficient definiteness. The Torture Statute, enacted to fulfill the United States' treaty obligations with most of the countries of the world, certainly put the Defendant, a person born in the United States, on notice of conduct prohibited not only in this country, but in much of the civilized world.

United States v. Emmanuel, 2007 WL 2002452 (S.D. Fla. Jul. 5, 2007). N.b. that (1) Emmanuel pleaded the Bybee-Yoo memo as a defense, and (2) according to Yoo's memos, the boldfaced conduct is not torture under the Torture Act.
4.24.2008 5:44pm
Anderson (mail):
Sorry, I was sloppy -- Emmanuel's defense pointed to the memos to support their "vagueness" argument, but did not "plead them as a defense," the way CIA torturers would plead an OLC opinion as a defense.
4.24.2008 5:46pm
Tony Tutins (mail):

And I repeat the point Brian Leiter made and that I echoed above: how exactly is Berkeley to "investigate" this? Subpoena Alberto Gonzales? Or David Addington? A university is generally not in a good position to conduct "investigations" of behavior unrelated to campus life.

Berkeley could always start by asking Yoo "What the hell were you thinking?"
4.24.2008 5:47pm
ejo:
legal opinions-you mean like, in insurance law, a coverage opinion by a lawyer that the insured is not covered under a policy. you are right-once those opinions are issued, there never is any litigation that arises. no one ever files a declaratory judgment action once you issue your "right" opinion-that is why there are so few coverage opinions in the State and Federal reporters. if you are delusional enough to think that the issuance of an opinion memo ends the debate, perhaps you shouldn't be involved in the discussion?
4.24.2008 5:56pm
wm13:
But, Tony Tutins, Yoo would respond that the memoranda WERE his thinking (and possibly still are). At which point, Boalt would either have to strip him of tenure for wrong thinking, or end the "investigation."

And "investigations" which can only proceed on the premise that certain thoughts are wrong are violations of academic freedom. And I mean this: if a tenured biology professor decides that intelligent design is the truth (there are a few), or a tenured econ professor becomes a Marxist, that is their prerogative, and they may not be fired for thinking the wrong thoughts.
4.24.2008 5:57pm
Adam J:
frankcross - it's true that the law isn't always completely determinate, but there are still arguments that are completely wrong. I don't really know the arguments against the memo well enough to be sure this is completely wrong, but it certainly sounds like there's alot of unanimity that it was.

Furthermore, Yoo's opinion doesn't push the law in any direction- it has no binding effect on law- all it does is circumvent it. Do you think this is proper ethical behavior, aiding the government in circumventing the law?

Ejo- if all Yoo did was evaluate a vague law incorrectly, then I agree he shouldn't face any punishment. However, if Yoo intentionally drafted an opinion that he knew didn't reflect the actual law in order to insulate government officials from liability, then he certainly acted illegally. Not quite sure how that is proven, unless Yoo is stupid enough to out and say that's what he did. However, considering Yoo's apparent hubris (he has compared himself favorably to Lincoln in the press), he just might do so.
4.24.2008 5:58pm
Anderson (mail):
At which point, Boalt would either have to strip him of tenure for wrong thinking

wm13 exemplifies the need to misstate the position in order to criticize it.

As I wrote above: "Yoo is not being criticized for giving it his best try and getting it wrong." It's not that he "thought wrong"; it's that he had a pretty well defined professional duty, and he didn't even try.

If I write a mistaken insurance-coverage opinion, I will likely cost my client some money.

But if I write a coverage opinion, say finding no duty to defend, that simply *ignores* the case law saying my client *does* have a duty to defend ... that's malpractice.
4.24.2008 6:01pm
ejo:
ignoring Yoo for a moment, could you factually distinguish waterboarding from the treatment described in the paragraph you pulled from Emmanuel-if you were a lawyer, you could have a field day pointing out the factual distinctions between the types of conduct. severe physical pain and suffering, specific intent, permanent injuries-good thing the law is so clear, one could almost come up with a way to distinguish waterboarding, couldn't one?
4.24.2008 6:06pm
LM (mail):
David M. Nieporent,

In any case, it's unclear to me why you think that bad lawyering outside the classroom -- no matter how bad -- has any bearing on the training provided inside the classroom.

Do you think Berkeley would approve a leave of absence of indeterminate length for a recently tenured professor to work on his short game? Regardless, Berkeley's standard for discipline of tenured faculty isn't limited to what has bearing on the classroom. Any intellectual dishonesty that does significant harm to the University's overall mission (my paraphrase) will do.
4.24.2008 6:07pm
Anderson (mail):
Ejo, the memo in which Yoo allegedly distinguishes waterboarding from the conduct forbidden by the statute is still classified and still hasn't leaked.

I gather that the administration is not terribly confident that the legal reasoning in it will impress the non-ejo's of the world.
4.24.2008 6:09pm
Adam J:
ejo- um, nice try but a declination of coverage letter from an insurance company is not a legal opinion letter... try again.
4.24.2008 6:09pm
frankcross (mail):
Looks like we can add Marty Lederman to the list of people who don't think Yoo's memo was so egregious as to warrant Boalt action.
4.24.2008 6:29pm
ejo:
so, can you distinguish the Emmanuel conduct as described in the one paragraph you gave us from waterboarding? I am sure, acting as devil's advocate, that you could easily do so even given the lack of cases covering the issue. so, a declination of coverage opinion issued by counsel hired by an insurance company to issue such an opinion is not a legal opinion letter? you are too nuanced for me. you are also conflating your opinions with actual precedent.
4.24.2008 6:30pm
Mark Field (mail):

And "investigations" which can only proceed on the premise that certain thoughts are wrong are violations of academic freedom. And I mean this: if a tenured biology professor decides that intelligent design is the truth (there are a few), or a tenured econ professor becomes a Marxist, that is their prerogative, and they may not be fired for thinking the wrong thoughts.


This is a good opportunity to repeat the important distinction which we critics of Yoo all insist on: that this is not a case where Yoo "thought wrong thoughts". Let's distinguish between 3 types of legal analysis: academic; advocacy; and "state of the law". There are different standards applicable to each.

If Yoo had published a law review article supporting torture, that would not be ground for discipline. If he made incompetent arguments in favor of torture, that probably wouldn't either, though a university might well look askance at a professor who repeatedly did so. Same with dishonest arguments.

Advocacy briefs are somewhat different. There, we all at least have to meet the requirements of Rule 11 and equivalent state court rules. The requirement is clear: we must meet certain fairly minimal standards of disclosure and honesty. In CA, for example, lawyers have an ethical obligation to disclose "controlling contrary authority" to a court.

The third level involves memos which purport to describe the state of the law. These are typically internal to a firm, but are sometimes given in the form of opinion letters to clients. Here, the standards are very high. The firm's ass is on the line; malpractice liability is very real. Indeed, in many states it's probably a violation of an ethical duty to give incompetent legal advice, and it certainly would violate the ethical rules to give dishonest advice.

I claim that Yoo had to meet an even higher standard than this. Why? Because OLC occupies a unique role in the government. It effectively describes the law under which the Executive Branch will act. It tells the Executive what are the legal limits to policy. For this reason, OLC lawyers must meet a very high standard indeed when they purport to say "what the law is". Incompetence in that job is inexcusable; dishonesty is unforgiveable.

That's not even the end of it. There is respectable authority (Profs. Kerr and Lederman, for example), which asserts that the OLC memos themselves serve to immunize those who rely on them. Someone who issues an incompetent/dishonest memo, knowing that others will rely on it, and further knowing that the memo itself will immunize the actor from criminal liability is no longer engaged in the practice of law in any meaningful sense. He's solely an aider and abettor of a crime.
4.24.2008 6:38pm
Mark Field (mail):

Looks like we can add Marty Lederman to the list of people who don't think Yoo's memo was so egregious as to warrant Boalt action.


Do you have a link?
4.24.2008 6:42pm
Anderson (mail):
Looks like we can add Marty Lederman to the list of people who don't think Yoo's memo was so egregious as to warrant Boalt action.

This is not news.

In general, professors who enjoy or aspire to tenure have been solicitous of Yoo's rights, whereas lawyers who practice law "in the field" have been contemptuous of his continuing to teach where his professional incompetence (at best) is so egregious.

--Excellent 5:38 comment, Mark. Agreed that a higher standard did in fact apply.
4.24.2008 6:45pm
Anderson (mail):
Possibly the Lederman link is this one, though it's a trifle more nuanced than I'd recalled.
4.24.2008 6:46pm
ejo:
again, do you feel there is no dispute on the issue of what is torture and circumstances which would allow conduct either meeting the definition or just short of it? Given the extent to which you think the issue is settled, we should have volumes filled with such cases-we don't and you know it. quite simply, it is a policy dispute and you don't like the policy position, even though no court has issued its opinion. you can't even admit that the Emmanual quote you brought into the debate is quite a bit distinguishable from "waterboarding"-yet you claim to be the intellectually honest side of the debate.
4.24.2008 6:51pm
ejo:
by the way, war is not a malpractice case where your firm's malp premiums are at issue. if the United States screws it up, we can have a slightly more serious thing occur than a spike in the insurance premiums. what would your position be if Yoo's memo took the opposite position, the government followed it and hundreds/thousands/millions died due to inaction?
4.24.2008 6:57pm
Anderson (mail):
Ejo, are you unfamiliar with the topic we're discussing?

Whether waterboarding is torture is not addressed in any of the published Yoo memos. It has no bearing on the topic of whether or not Yoo was professionally incompetent in those memos.

So I don't understand why you're bringing that up.

I quoted Emmanuel (only a district court opinion, but it's the first-ever criminal prosecution under the Torture Act, so it's what we've got on that score) merely to illustrate the absurdity of Yoo's definition of torture. Acts which did not come within the ambit of Yoo's definition were considered so obvious by the judge that there was no point in pretending otherwise.

Of course, judges do err. Perhaps the 11th Circuit will hold that electrical shocks to the genitals are not, in fact, torture under the Torture Act.
4.24.2008 7:03pm
Elliot Reed (mail):
I haven't read the whole memo, but the part I was interested in (the definition of the term "severe pain" in the definition of torture in a torture statute) is obviously atrocious, because the only legal authority he mentions is an unrelated insurance statute. No cases interpreting this statute or any other anti-torture statute or treaty. No cases interpreting the insurance statute he cites. No statutes or treaties. No treatises, books, or law review articles. There's not even a case from a foreign or international court. If the legal analysis in the rest of the memo is remotely like that bit, then it's not even shoddy: it's nonexistent.

Yoo's academic work is highly respected, so there's no way he could be ignoring all the authority due to incompetence. Given that not even incompetence is an explanation, I can't think of any explanation for why he would have produced something this bad except that that he was intentionally enabling Bush et al to violate the supreme law of the land while arguing that they were reasonably acting on the advice of OLC.
4.24.2008 7:40pm
eric (mail):
So just because there is an unreleased memo that distinguishes waterboarding from other acts that are torture means that the the persons holding the memo have no faith in its analysis.

I am glad that you Yoo-haters can read minds.
4.24.2008 7:41pm
PLR:
Possibly the Lederman link is this one, though it's a trifle more nuanced than I'd recalled.

Per Lederman, addressing Leiter:

The claim here is that the morally reprehensible views, and the shoddy work, in this case were put to use in official state conduct that facilitated and immunized horrific crimes. And that makes the question at least a bit more complicated, no?

Yeah, I'd say that's a factor.
4.24.2008 7:50pm
Elliot Reed (mail):
I forgot to mention, the section on severe pain doesn't mention legislative history either.
4.24.2008 7:54pm
Bruce Hayden (mail) (www):
In general, professors who enjoy or aspire to tenure have been solicitous of Yoo's rights, whereas lawyers who practice law "in the field" have been contemptuous of his continuing to teach where his professional incompetence (at best) is so egregious.
Must be a fairly small and self selected bar. What percentage of those who "practice law in the field" have actually done so on the Administration's side? Indeed, I would be interested in a definition of the category. What constitutes practicing law in the field?
4.24.2008 8:30pm
LM (mail):
Anderson, Mark Field,

As you know, Berkeley's Faculty Code gives the law school nearly unrestricted latitude to decide who investigates faculty misconduct, and how they investigate it. I suspect the law school performed an informal, general investigation, the results of which we know, and in so doing it satisfied the Code requirement.

Boalt's process may have been as ad hoc as the Dean getting a sense of the faculty through personal conversations, based on an investigation as perfunctory as the individual faculty members' readings. From the statements of the Dean and the unnamed professor, I assume something along those lines took place, don't you? If so, why would you think further investigation is necessary, if it's not required by the Code?

(If the faculty were ideologically sympathetic to Yoo, I could see where it might be incumbent on them to show they had taken measures to avoid an ideologically biased result. But given their antipathy for his views, we can safely assume any investigation ending in his favor was bona fide.)

On an earlier thread, Mark reasonably suggested that if an investigation had transpired, Yoo would have had good reason to publicize its results. But that assumes there were results formal enough to publicize. It seems to me the statements by Dean Edley and the unnamed faculty member are, in effect, that publication. The school isn't going to exonerate him. They acknowledge that if he's convicted or disbarred they'll probably follow with their own action. But do you doubt that the two statements reflect at least a rough consensus faculty rejection of both Yoo's reasoning and the propriety of charging him with faculty misconduct?
4.24.2008 9:14pm
Anderson (mail):
Yeah, I'd say that's a factor.

He starts off saying he mostly agrees with Edley, then works up to the point you quote. I will be happy to stand corrected, obviously.

If the legal analysis in the rest of the memo is remotely like that bit, then it's not even shoddy: it's nonexistent.

You betcha. This is what I'm talking about.

I personally get the feeling, reading the thing, that Yoo's own bet was on his Article II reading, so that all the other stuff was just filler to him -- yeah yeah, gotta have some stuff in here, but *really* the Prez is C-in-C and that settles it. But that's just a hunch, based on his evident academic interests and theses.

Fair-minded folk may want to look at his Frontline interview, which is a bit marred by the interviewer's amazing mistake of saying that Yoo's interpretation of "torture" was considered remarkably *broad* by the memo's readers.
4.24.2008 9:18pm
Anderson (mail):
LM, I would like to think that happened, but I can't figure why they would be keeping that a secret, instead of saying, "folks, we are *so* much more on the ball with you, we've already considered this matter."

Also, as Yoo's memos themselves demonstrate, a secret inquiry may have failed to consider all the relevant issues. For instance, did they mirror Leiter's reasoning in taking the issue to be solely "academic freedom" and Yoo's liberty to *think* what's in the memos? Or did they at least consider the "Speech-Act Theory" of Yoo's culpability?

I dunno, you dunno, we dunno. But to judge by Edley's letter, they didn't consider it, because that's the glaring hole in his reasoning.

So I'm not convinced that a Secret Inquiry is adequate.
4.24.2008 9:23pm
elim:
why wouldn't waterboarding be raised in a discussion of our alleged conduct (as opposed to that of the taylor clan in liberia). if you are using that conduct as your definition of torture, it certainly is distinguishable on grounds of intent, severity and duration. what would render distinguishing such conduct absurd. there is no body of caselaw on the issue. further, I question whether it is even a legal question, any more than the dropping of the atomic bomb on Japan was a legal question.
4.24.2008 10:18pm
MarkField (mail):

I suspect the law school performed an informal, general investigation, the results of which we know, and in so doing it satisfied the Code requirement.

Boalt's process may have been as ad hoc as the Dean getting a sense of the faculty through personal conversations, based on an investigation as perfunctory as the individual faculty members' readings. From the statements of the Dean and the unnamed professor, I assume something along those lines took place, don't you?


I can't tell. Dean Edley's letter was disappointing in that he seemed to assert the need for conviction of a crime, when that clearly isn't necessary. That leads me to believe that he didn't conduct any investigation.

On the "intellectual dishonesty" issue, he might have in some informal sense. Your suggestion is at least possible. The problem with that is that a process like you suggest doesn't create any opportunity to hash out and reach consensus on some of the issues raised here and at Balkinization such as whether Yoo should be judged as a lawyer writing a brief or an academic writing a law review article. That makes it hard to credit any such informal conclusions.

I assume there has been talk among the faculty. Some of them, at least, have made it pretty clear that they want nothing to do with Yoo's memos. That's a positive step.


But do you doubt that the two statements reflect at least a rough consensus faculty rejection of both Yoo's reasoning and the propriety of charging him with faculty misconduct?


I think this is probably right, even if I disagree with the conclusion about the propriety of charges.
4.24.2008 10:42pm
Perseus (mail):
Let's distinguish between 3 types of legal analysis: academic; advocacy; and "state of the law"...

The problem I have is that Yoo's "client" was not some private citizen or even a lower level of government. Rather, his "client" was the head of the executive branch of the federal government, which is co-equal with the other two, and who plays a signficant role in actually defining what the state of the law is. "Advocacy" and "the state of the law" are thus very likely to become intertwined. Indeed, if one holds Yoo's general view of executive power (or at least Yoo believed that that view was held by his boss), then I don't see what is so objectionable about Yoo's prouncements about "the state of the law."
4.24.2008 10:44pm
elim:
what is the "state of the law" in light of the fact there is no body of law interpreting the issues and in light of the fact that the issue is only partially legal?
4.24.2008 11:45pm
LM (mail):
Anderson,

LM, I would like to think that happened, but I can't figure why they would be keeping that a secret, instead of saying, "folks, we are *so* much more on the ball with you, we've already considered this matter."

As I said in my last comment, I think that's just what the Dean's letter and the anonymous faculty statement do, but they can only go so far. Does the SEC send you a letter saying, "OK, we didn't find enough to indict you today, so feel free to tell the world we think you're innocent and trustworthy"? No, first of all because they probably don't believe it. But more important, who knows what tomorrow's papers will bring that may yet turn you into a defendant? As both Boalt statements indicate, they're leaving the door open in case he's convicted, disbarred or, though they don't say this explicitly, should new facts emerge.

Also, as Yoo's memos themselves demonstrate, a secret inquiry may have failed to consider all the relevant issues.

I'm not saying that any particular procedure would reach the right result. I'm only trying to separate Boalt's responsibility under the Faculty Code from any other basis you may have to call for more investigation.

So what could the school's posture be right now? We can assume they haven't referred charges to the Chancellor. We should also assume they've ruled out referring such charges, absent disbarment, conviction or new evidence. (Otherwise, they have some explaining to do for Dean Edley releasing even a qualified statement that supports Yoo's case.) And they've either arrived at this no-action decision with the intention of complying with the Faculty Code, or they've just stumbled into it. Let's give them the benefit of the doubt, if only because of how much incentive they have to avoid more embarrassment.

As I explained in my last comment, the Faculty Code's standard for investigation is so vague that meeting it requires little more than intending to do so. Reading the memos and some blogs, faculty members bumping into each other in the hall and chatting, and ultimately deciding not to refer charges, is probably all it takes. In other words, I don't see how the school can be anywhere in this process except having decided not to refer charges, having met the University's statutory requirements, and until and unless Yoo is disbarred, convicted, or new evidence emerges, being done.

If I missed something, please tell me. In any event, if you think the school's posture could be other that I've suggested, please explain how. If you agree with me, then please explain how you argue for them to re-open a closed inquiry, the only detail of which we're certain about is the result.
4.25.2008 12:24am
LM (mail):
Anderson,

Somehow I missed Mark's response to my earlier comment before posting this last one, so to the extent there's some overlap, feel free to add your take or skip by, as you wish.
4.25.2008 12:31am
MarkField (mail):

The problem I have is that Yoo's "client" was not some private citizen or even a lower level of government. Rather, his "client" was the head of the executive branch of the federal government, which is co-equal with the other two, and who plays a signficant role in actually defining what the state of the law is. "Advocacy" and "the state of the law" are thus very likely to become intertwined.


Leaving aside my substantive disagreements here, Yoo still has a responsibility to explain to the Executive what the state of the law is. That includes things which might not be favorable to the Executive's goal. He can then go on to advance theories about why those doctrines can be distinguished, but he can't just pretend they don't exist.


Indeed, if one holds Yoo's general view of executive power (or at least Yoo believed that that view was held by his boss), then I don't see what is so objectionable about Yoo's prouncements about "the state of the law."


By this logic, Yoo needn't have written the memo at all. He could have just issued a senatus consultum ultimum.
4.25.2008 1:00am
Anderson (mail):
LM, I take your arguments seriously, and that may be how Berkeley is regarding things. I don't think it's adequate, for the reasons I've stated above, but I'm not sure I have anything new to add.

elim: if you are using that conduct as your definition of torture, it certainly is distinguishable on grounds of intent, severity and duration.

"If." Anyway, distinguish to your little heart's content. While you're at it, try not to prove that an electric shock to the genitals isn't torture.

there is no body of caselaw on the issue.

If you mean "criminal cases applying the Torture Act," sure. However, lawyers don't simply stop there and shrug. Since it's a statute adopted pursuant to treaty, other countries' interpretations would be relevant. There are other federal decisions on the subject of what's torture, applying different statutes, that could be consulted. See Elliot's comment above for some other directions that a *responsible* lawyer would follow.

further, I question whether it is even a legal question, any more than the dropping of the atomic bomb on Japan was a legal question.

Question away, my friend. There's a statute against torture; Youngstown limits the executive's wartime powers where they directly conflict with statutes; and a prisoner in a CIA facility in Poland is not "on the battlefield" in any meaningful sense of the word.

Personally, I think that the Congress could prohibit carpet bombing as an offense against the laws of war, but we don't need to reach that issue here.
4.25.2008 10:53am
Anderson (mail):
He could have just issued a senatus consultum ultimum.

Quite frankly, that seems to be what Yoo thinks the AUMF was.
4.25.2008 10:54am
Orson Buggeigh:
Thales directs readers to a New Yorker article providing Duke's perspective on the Lacrosse frame. Unfortunately, it's a bit dated - from September of 2006. Taylor &Johnson's _Until Proven Innocent_ is much more complete. Duke has problems. The administration settled out of court for undisclosed amounts with the three falsely accused men, but a suit by virtually the entire rest of the team is moving along. At the same time, three of the most vocal faculty proponents of the frame published an article in _Social Text_ claiming that they are being mis-treated by the blogisphere, but offering nothing to support their beliefs that the three men were guilty of something criminal,and they are victims of the right wing smears of people like Johnson. (Note that Johnson is an Obama supporter)

It is hard to remove tenured faculty, and that is probably as it should be. Many faculty do wretched published work, and yet are allowed to remain on the faculty - the three authors of the Social Text piece by Wahima Lubiano et al are a prime example. (See Johnson's discussion of this article just posted at Durham in Wonderland) Yoo's legal work is shoddy, but unless he's shown to have conducted equally shoddy work in the classroom,or in his academic research, I would be very reluctant to try to remove him form his tenured faculty position. Because doing so is transparently political, as is this whole discussion. It is much like the people on the far right demanding the impeachment of President Clinton over the Lewinsky affair.

Look, unless Yoo is actually convicted of a crime, it is terrible practice to remove him from his tenured position, no matter how much many people may feel he is an unworthy person. Because sooner or later, the Democratic party and the left will not be in a position to protect the dubious scholars of their persuasion, and then why should we stand up for Bernadine Dohrn, Bill Ayers, Angela Davis and the rest. People who have actually been convicted of crimes, or at least indicted for them, BTW. Which, at the moment, cannot be said for Yoo. I said it before, and I repeat - tenure is in place to protect the people we disagree with, not those we agree with.

Unless Yoo has committed a crime - actually charged by competent legal authority, not a bunch of irate professors and pundits - and then is convicted, as was Scooter Libby - this is simply a case of a self appointed vigilance committee attempting to string him up. Which is perhaps quite apropos for San Francisco. What I personally find disappointing is that so many legal scholars and members of the bar are busy searching closets for the rope, and bookshelves for the Boy Scout Handbook to re-learn how to tie a hangman's noose.
4.25.2008 11:41am
Anderson (mail):
Because sooner or later, the Democratic party and the left will not be in a position to protect the dubious scholars of their persuasion, and then why should we stand up for Bernadine Dohrn, Bill Ayers, Angela Davis and the rest.

This I think is where Leiter et al. are really coming from, but two things:

(1) Nothing is going to shut up the Right-Wing Outrage Machine. The ACLU could vote Yoo as its Lawyer of the Year and that wouldn't suffice. So appeasement isn't going to work here.

(2) If any of the persons named have been as incompetent (or as wicked, take your pick) as Yoo in their legal practice outside the university, then hell, the school *should* investigate whether to revoke tenure.

-- Although, of course, the school presumably knew what it was getting in that respect when it granted tenure in the first place. In Yoo's case, the bad conduct happened post-tenure, not in 1968.
4.25.2008 12:55pm
ejo:
what bad behavior?-exploring the parameters of the extent and nature of interrogation with captured terrorists? it would have been quite easy to say "do nothing". when "do nothing" leads to the murder of others, it is not acceptable (or is it to you?).

again, war is not a legal issue. if you want Yoo to be responsible for "torture", even though the conduct actually engaged in might not even meet the standard, are you willing to take the responsibility if nothing was done and people died?
4.25.2008 1:41pm
Tony Tutins (mail):

war is not a legal issue

Can you remind me why the Nuremberg Trials were held?
4.25.2008 1:50pm
ejo:
well, after we won a war, they were held to punish the evil generated by the Nazi regime. I would place some emphasis on the word "won" as they didn't occur during the war and it was the victors doing the prosecuting. further, the trial weren't held to hamper Allied war efforts. We didn't have Nazi allies in this country filing writs to free soldiers captured during battles and we didn't have academics during the war pushing the prosecution of those committing war crimes on our side. think of the field day you could have had prosecuting our soldiers, generals and politicians during that war-we were absolutely brutal with our enemies and their civilian populations.
4.25.2008 2:23pm
Anderson (mail):
Ejo's position, that it's only a war crime if you lose, is sadly borne out empirically.

Curtis LeMay had enough insight to remark that he would have been tried for war crimes had Japan (somehow) won the war.

He was right.
4.25.2008 3:40pm
ejo:
sadly? I am not at all saddened that we won WWII. It would have been nice to have won it with the filing of legal briefs and some intense litigation efforts, perhaps even legal opinions from the law firms of those posting here-it was not to be, however. I do think, having not won a war, that we are getting ahead of ourselves with a Nuremburg precedent. If the Japanese had "somehow" won the war-do you really think an Allied victory was foreordained in 1939?
4.25.2008 4:13pm
LM (mail):
Anderson, Mark Field,

One last conjecture to tie up my others. If the unnamed Boalt professor is right that Chris Kutz reflects a consensus faculty view, I take it that you and the faculty essentially agree on the quality and significance of Yoo's memos. Which means there must be something else leading you in different directions on how to handle the charges of faculty misconduct. I suspect the difference is that you approach the tenure question from your desire to hold Yoo accountable, while they approach Yoo's OLC work from their mandate to serve the school's best interest. If some of them were in your place, they might be calling for more investigation, and if you were in theirs, you might be satisfied that, even despite the flaws and discrepancies you've pointed out here, their approach was the right one.
4.25.2008 5:06pm
MarkField (mail):
LM, you raise a good point and I've thought about it a lot. A striking feature of the debate both here and at Balkinization is the extent to which professors have tended to defend tenure and lawyers to condemn Yoo.

Though I'm speculating here, I think this difference arises, in part, from two distinct visions of Yoo's role. The academics think the appropriate standard to apply to Yoo is the academic one. They see themselves in a potentially similar situation. Disciplining Yoo would offend their sense of academic freedom.

With lawyers it's the reverse. We see Yoo taking on the role of a lawyer without actually abiding by the obligations of one. We are all too aware that we could never get away with what Yoo did. It offends our sense of justice that he should.
4.25.2008 5:32pm
LM (mail):
Mark,

Your speculation strikes me as pretty accurate, which I'm sure has nothing to do with it being consistent with my own. ;) That discrepancy between how the Boalt faculty and outsiders might intuitively frame Yoo's case for purposes of pursuing University sanctions is why I abandoned the debate over whether Boalt was right or wrong, and focused instead on whether it seems to have complied with the Faculty Code.
4.25.2008 6:38pm
LM (mail):
All that aside, I await David Horowitz' praise for the liberal Boalt faculty's commitment to academic freedom. But I'll be breathing in the meanwhile.
4.25.2008 7:01pm