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John Yoo:
"Now that I'm not in the government, part of my role, because I have a certain amount of expertise, is to try to keep the government honest."
-- From an interview with the Orange County Register.

  On the other hand, back when he was in government....
Dave3L (mail) (www):
lol
3.4.2009 3:36pm
whit:
not much different than a defense attorney. he was a defense attorney for the govt, so to speak.

a defense attorney's role is not to "keep my client honest"

it's to win the case. you are supposed to stay within the bounds of the law, but if the judge allows it, no matter how ridiculous the legal theory, it's kosher.
3.4.2009 3:37pm
RPT (mail):
Priceless.
3.4.2009 3:39pm
Steve:
To read the conclusion of this post, I think you have to buy Orin a beer.
3.4.2009 3:40pm
Tony Tutins (mail):
So Yoo's visiting at Chapman now. I wonder if Boalt students were avoiding his courses, and that's why he's doing it.

Anyone know what's happening in Berkeley?
3.4.2009 3:43pm
ralph R. Ralphson (mail):
But that's the problem, Whit--he wasn't a defense attorney. That would be the solicitor general's office--or the white house counsel.

He was an advisor-in the office of legal counsel--giving the government an opinion on what the law is, so that they understood what they could do legally.

If you understand the role he was supposed to have, it explains a lot of his outrageously optimistic opinions if you think that he approached his job with the mindset of a "defense lawyer;" not an advisor on what the law is.

Simple example of a murder case---as you note, a defense lawyer's job is to keep you out of prison, by pointing out flaws in the government's case (say, no eyewitnesses)

But an advisor would be catastrophically wrong to say "murder isn't unlawful, because you won't get caught--if you do it with no eyewitnesses". The advisor should say "murder is unlawful"--even if his client really wants to do so.
3.4.2009 3:44pm
Nathan_M (mail):
So now Yoo is guarding the Constitution? I seem to recall a parable involving a fox and a hen house. That ended well for the hens, right?
3.4.2009 3:45pm
Jon Roland (mail) (www):
I used to correspond with John Yoo, and once spoke with him on the phone, when he was at Berkeley, before joining the Bush Administration. During the course of that I presented him with a number of legal arguments on various subjects, such as that if a foreign terrorist were tried as a pirate and condemned to death, he could then lawfully be tortured because he was "legally dead", as long as he always had the choice of death to end the torture. I didn't advance that and other arguments as being in favor of them, but some of them seem to have found their way into Yoo's briefs. I asked him about that at the last Federalist Society National Convention, but he didn't do much more than the deer in the headlights thing.

Yoo is actually a nice guy, but he is the ultimate hired gun, and I suspect he would have provided a legal rationale for Hitler had he been working for that regime.
3.4.2009 3:46pm
Crust (mail):
Yoo:

These memos I wrote were not for public consumption. They lack a certain polish, I think -- would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently.

So on Yoo's account the problem with his OLC memos was that he "tr[ied] to give unvarnished, straight-talk legal advice"?!?
3.4.2009 3:51pm
Constitutional Crisis (mail):
Orin:

You've been pretty tough on Yoo (with good reason). And yet, I presume that you guys travel in some of the same circles. What happens when you're introduced to him at cocktail parties or the like? Do you politely chuck him on the shoulder and ask him how he likes being Professor Yoo? Do you turn a cold shoulder and become indignant for the disgrace he's brought on the profession? Or do you just look around the room for Bernstein and tell him that you have someone he needs to meet?

I'm genuinely curious how the baseball game plays out IRL.
3.4.2009 3:52pm
Just an Observer:
"Now that I'm not in the government, part of my role, because I have a certain amount of expertise, is to try to keep the government honest."

Is that citizen watchdog available to be a member of Sen. Leahy's truth commission?
3.4.2009 4:01pm
Anderson (mail):
The remarkable thing is that Yoo could say that without even realizing what he was saying.

(And thanks, Ralphson, for batting down the extremely tired "but Yoo was an advocate" move, which frequent VC commenters on these subjects should know better than, by now. I think I need a shortcut for that where I just print out what you wrote -- Control + B + S, perhaps.)
3.4.2009 4:02pm
Fidelity (mail) (www):
He could probably serve the country best by being brought up on charges of war crimes. That would be a reminder for government to stay honest.
3.4.2009 4:04pm
Steve P. (mail):
Fidelity — or a reminder to avoid leaving a paper trail.
3.4.2009 4:07pm
Anon321:
This seemed chortle-worthy:

Q. Is it normal practice to give just the straight opinion?

A. I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, "What are people going to think of me?" Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.

That's certainly true as a general matter. The problem is that Yoo doesn't seem to believe the related point that there are things that someone can or even (in the person's view) should do, that are nevertheless illegal. Yoo's memos are animated by the theory that if the President thinks he should do it, then it is legal to do it.
3.4.2009 4:07pm
H Blix (mail):
Cheap shot me thinks.
3.4.2009 4:10pm
Elliot123 (mail):
"On the other hand, back when he was in government...."

Have the courage to complete the sentence.
3.4.2009 4:17pm
Anderson (mail):
Have the courage to complete the sentence.

Have the courage to buy him that beer.
3.4.2009 4:19pm
OrinKerr:
Elliot123,

Have the courage to state the criticism.
3.4.2009 4:19pm
whit:
ralph, good points
3.4.2009 4:19pm
NYCer:
Have the courage to complete the sentence.

I think you missed the joke.
3.4.2009 4:22pm
catchy:
Do you turn a cold shoulder and become indignant for the disgrace he's brought on the profession?

We're talking the field of law here! Ethical professional standards are maintained via subtle digs on blog posts or not at all!
3.4.2009 4:22pm
Jon Roland (mail) (www):
By the way, the correct Arabic/Muslim term for terrorism is fasad, and one who practices it a fasadi. From that we could reasonably coin the term fasadism, after distinguishing it from the architectural practice. It is mistake and an insult to use the term jihad, jihadi, or jihadism for terrorism.
3.4.2009 4:22pm
Anderson (mail):
It is mistake and an insult to use the term jihad, jihadi, or jihadism for terrorism.

That does seem a bit like calling the Crusaders "pilgrims," now that you put it like that.
3.4.2009 4:26pm
Crust (mail):
Elliot123:

Have the courage to complete the sentence.

It's funnier left dangling.

As to whether Orin thinks that Yoo should be investigated/disbarred/prosecuted (which I'm guessing is where you're going), Orin has made it clear that he doesn't care to opine on that except maybe in private at the cost of a beer. Which is his prerogative.
3.4.2009 4:27pm
Jon Roland (mail) (www):
Constitutional Crisis:

I'm genuinely curious how the baseball game plays out IRL.

Can't speak for Orin but at the Federalist Society National Convention everyone seemed friendly and cordial to him, including me. But I would be friendly and cordial to someone I had to kill. Practitioners of law seem to compartmentalize their professional differences in social situations.
3.4.2009 4:36pm
LessinSF (mail):
Yoo sober today.
3.4.2009 4:40pm
AnneJ:
Someone asked for a beer?

Still, considering the Yoo-quote, it's not that hard to fill out the dots? Aren't conservatives' finest present over here?
3.4.2009 4:42pm
Anderson (mail):
but at the Federalist Society National Convention everyone seemed friendly and cordial to him

You don't say.
3.4.2009 4:51pm
http://volokh.com/?exclude=davidb:
Shame on Yoo.
3.4.2009 4:51pm
Barrister's Handshake (mail) (www):
Wow, another comment stream filled with Yoophemisms.
3.4.2009 4:58pm
catchy:
You don't say.

Anderson, stop being a sober coward and tell us what you *really* think of Federalist Society conventions!!
3.4.2009 5:00pm
Anderson (mail):
Anderson, stop being a sober coward and tell us what you *really* think of Federalist Society conventions!!

First you must buy me a scotch. Or, today, some TheraFlu.
3.4.2009 5:05pm
http://volokh.com/?exclude=davidb:
Nice one, Barrister's.
3.4.2009 5:27pm
lonetown (mail):
I find the furor over Yoo amusing. His job was to stretch the envelope for the government.

Lawyers stretching the envelope! Quelle surprise!

I'm sure some would claim their ethics dominate their behavior to which I would say bullocks!
3.4.2009 5:49pm
Anderson (mail):
His job was to stretch the envelope for the government.

Uh, no, it wasn't. That's why you are confused.

Besides which, Yoo seems not to've recognized the existence of any envelope.

Btw, anyone have any reason to doubt that OLC civil servants take an oath to defend the Constitution?
3.4.2009 6:01pm
mattski:
I find the furor over Yoo amusing.

amyoosing?!
3.4.2009 6:12pm
OrinKerr:
Lonetown,

If Yoo's job was to stretch the envelope, I think we all agree that he did an outstanding job.
3.4.2009 7:03pm
Ex parte McCardle:
Anderson: "Or, today, some TheraFlu." Make it Tamiflu--every dose lines the pocket of Donald Rumsfeld, via Gilead Sciences.

[Seriously, sorry you're sick. Almost everybody in my office has had it. Get well soon.]
3.4.2009 7:03pm
methodact:
How well does an insanity defense work at the Hague?
3.4.2009 7:20pm
roystgnr:
If Yoo's job was to stretch the envelope, I think we all agree that he did an outstanding job.

I think he barely got started. Sure, he managed to expand the bounds of the Presidential child-testicle-crushing authority, but what do you do with a prisoner who refuses to confess and doesn't have any male children? Is father-testicle-crushing still off limits? How about daughter molestation? We can't yet say. Although Yoo's pioneering work in Testicular Law will never be forgotten, his real legacy is likely to be the path he opened up for future generations to follow.
3.4.2009 7:23pm
Anderson (mail):
amyoosing?!

Stop it, yoo guys!

--Thx for the well-wishing, McCardle. (I shoulda picked a SCOTUS handle, but I'd get tired of typing Cohen v. California.)
3.4.2009 7:29pm
Jim G (www):
How much of this was the result of putting an academic in a policy position? What might have been a mildly controversial but otherwise harmless law review article turns into something completely different when given the color of policy. Even now, I'm not sure whether Yoo actually believed what was in his memos, or was given the task of writing them and thought it would be an interesting intellectual exercise to write a memo from an extremely pro-executive-powers point of view.
3.4.2009 7:35pm
Scote (mail):

H Blix (mail):
Cheap shot me thinks.


Well, yes, but only if by "cheap shot" you mean "completely accurate but you disagree with it for reflexive, ideological reasons..."
3.4.2009 7:58pm
OrinKerr:
Oh yeah, and feel better Anderson!
3.4.2009 8:46pm
Sagar:
Spoken like a lawyer.

(not sure why people are assuming Yoo was a conservative* - he told his boss what the boss wanted to hear; typical consultant)

* i don't know if he is one or not, but i don't see that being a necessary condition for what he did
3.4.2009 9:12pm
Sagar:
How well does an insanity defense work at the Hague?

why? do you think (or hope) Yoo will be tried by the ICC?
3.4.2009 9:16pm
ralph R. Ralphson (mail):

How much of this was the result of putting an academic in a policy position? What might have been a mildly controversial but otherwise harmless law review article turns into something completely different when given the color of policy. Even now, I'm not sure whether Yoo actually believed what was in his memos, or was given the task of writing them and thought it would be an interesting intellectual exercise to write a memo from an extremely pro-executive-powers point of view.


Well, most academics I know understand the difference between a law review article and a formal opinion giving the united states government advice on what the law is.

It's not hard to detect I don't think much of Yoo-but I just can't square him being that ignorant with the fact that he's a law professor (though he did fail to cite youngstown in a memo on presidential power when congress has legislated on the issue).

I don't think that my feeling he can't be this dumb helps him--because the options are unethical and unlawyerly(giving advice that stretches the law far beyond the bounds of reasonableness in order to further your client's questionable goals)or so stupid he didn't understand that the memo was written for the office of legal counsel, not the stanford law review.
3.4.2009 9:23pm
methodact:
Sagar:

In Sen. Leahy's hearing today serving as a run-up to the Truth Commission, the apologists seemed to imply this is their greatest fear.

There appears shameful little calculus on John Yoo's part for such eventuality.
3.4.2009 9:25pm
Anderson (mail):
so stupid he didn't understand that the memo was written for the office of legal counsel, not the stanford law review

This appears to be his intended defense, from the statements of his that I've seen.
3.4.2009 10:17pm
Anderson (mail):
Oh yeah, and feel better Anderson!

Thanks; I'm thinking of skipping the TheraFlu &going straight to the scotch.
3.4.2009 10:18pm
Elliot123 (mail):
"Have the courage to state the criticism."

You lack the courage.
3.4.2009 10:47pm
OrinKerr:
not sure why people are assuming Yoo was a conservative

Maybe because he clerked for Judge Silberman and Justice Thomas; he obtained high-level postions in Republican politics in positions only open to conservatives; he is an active member of the Federalist Society; an he says things like, "I'm a conservative"?

Just a guess.
3.4.2009 10:50pm
OrinKerr:
Elliott123,

The end of the sentence, clear to everyone on the thread but you, apparently, is "it wasn't." There's no matter of courage involved here, because the end of the sentence is clear from the context. (That was the joke, which most people got.)

It's rather strange that you seem to imagine to the contrary. Perhaps you could explain why you thought there was some aspect of courage involved? If you would like to comment here in the future, I would hope you will explain your accusation and offer an argument for it or else just apologize.

Orin Kerr
3.4.2009 10:59pm
a knight (mail) (www):
Thank-you Professor Kerr.
3.5.2009 2:17am
bushbasher:
huh. i thought the end of the sentence was "... his role was to be a psychopath". i stand corrected.
3.5.2009 2:38am
Happyshooter:
Yoo stretching the law to keep America safe=evil Yoo evil Yoo stupid Yoo stupid Yoo

Gay lawyers stretching the law to get gay marriage=good gay good gay smart gay smart gay

I got that about right?

Oh, and I smell one heck of a lot of racism in the Yoo smearing. Counting down to a cartoon of a Yoo face in coke bottle glasses and WWII jap sneer in three...two...
3.5.2009 9:26am
MarkField (mail):

Yoo stretching the law to keep America safe=evil Yoo evil Yoo stupid Yoo stupid Yoo

Gay lawyers stretching the law to get gay marriage=good gay good gay smart gay smart gay

I got that about right?


No. Try re-reading ralph's post.


Counting down to a cartoon of a Yoo face in coke bottle glasses and WWII jap sneer in three...two...


I hate to spoil your ethnic stereotyping, but Yoo is Korean, not Japanese. I guess to you they all.... ah, never mind.
3.5.2009 9:46am
OrinKerr:
Happyshooter,

Who in particular is being racist, and why? Please be specific.
3.5.2009 9:48am
OrinKerr:
MarkField,

Darn, you were not only first in time, but much more clever.
3.5.2009 9:49am
Anderson (mail):
Torture keeps America safe?

I think I would need to hear your definitions of "America" and "safe," because on mine, that statement makes no sense. Torture is an inferior method of getting information; America is a country founded on the principle of inalienable human rights.

Oh, and I smell one heck of a lot of racism in the Yoo smearing.

Example? Or are we only allowed to criticize white Schmittians?
3.5.2009 9:49am
Anderson (mail):
Darn, you were not only first in time, but much more clever.

Yeah, I hate that about Mark too.
3.5.2009 9:54am
Ralph R. Ralphson (mail):
IF there's any unjustified smearing based on inherent characteristics going on in this thread, I think I have some sense of where it might be found.


Gay lawyers stretching the law to get gay marriage=good gay good gay smart gay smart gay


Or to put it another way, Happyshooter really ought to tell Jerry Brown--I think he and his wife would be awfully surprised.
3.5.2009 10:04am
Happyshooter:
Who in particular is being racist, and why? Please be specific.

There were plenty of folks in the memo chain. The one who is not a WASP is the one 1) jumped on over and over; 2) with his name now smeared into jokes and insults; 3) and linked by name with rhymes and puns that are starting to come close to the Charlie Chan movies of the 1930s.

Why is Philbin getting a pass here? Background just as high powered as Yoo's. In fact, the judgship (I think) trumps the prof. Let's look at the pictures. One of these things is not like the others.

Prof Delahunty: One of these things is not like the others...
3.5.2009 10:32am
Happyshooter:
Or to put it another way, Happyshooter really ought to tell Jerry Brown--I think he and his wife would be awfully surprised.

If Yoo is a bush lawyer, than Brown is a gay lawyer.

This may come as a shocker to you, but lawyers are linked and named as to the type of law and causes they do. Mayor Oscar Goodman is a mob layer not because he is a mobster but because that is the law he is linked with. Dawn Johnsen is an abortion lawyer not because she is aborted, but because she litigates pro-abortion. A criminal lawyer defends folks accused of crimes. A family law lawyer...
3.5.2009 10:37am
Happyshooter:
Sorry about the misspellings. I got fired up, and should have typed in word first.
3.5.2009 10:41am
Crust (mail):
Happyshooter:

If Yoo is a bush lawyer, than Brown is a gay lawyer.

This may come as a shocker to you, but lawyers are linked and named as to the type of law and causes they do.
I didn't know there was an area of law called bush law.

Thanks for explaining what you meant by "gay lawyer". Silly me I assumed that when you literally equated someone to "smart gay" and "good gay" that meant they were gay. But no doubt in your private language, a "smart gay" or a "good gay" need not be gay.

Why is Philbin getting a pass here?
Good question. He doesn't deserve one. Of course the launching point for Orin's post was an interview Yoo gave. Nonetheless, it is true that Yoo is the focal point generally. I see no reason to think that has to do with racism though.
3.5.2009 10:56am
OrinKerr:
Happyshooter,

I am Jewish, and you are criticizing me, I believe: By your own reasoning, aren't you an anti-semite? I mean, of all the threads on the Internet, you want to suggest it is just a coincidence that you pick that of a Jew?

Such an accusation would be absurd, of course, if meant seriously, but it is no more absurd than the position you appear to be genuinely taking. Of course, if you want people to discount everything you say here at this blog from here on, that is your choice.

SIgned
Orin Kerr
Black lawyer &Woman Lawyer (at various times)
3.5.2009 10:59am
Oren:

Of course, if you want people to discount everything you say here at this blog from here on, that is your choice.

That boat may have already sailed ...

Orin Kerr
Black lawyer &Woman Lawyer (at various times)

Don't forget Oppressive Government Lawyer!
3.5.2009 11:17am
Happyshooter:
Such an accusation would be absurd, of course, if meant seriously, but it is no more absurd than the position you appear to be genuinely taking.

The difference being 1) if you and the whole crew here did something; and 2) if your name was something really jewish looking(?) like Kerrstein or Kerrburg; 3) and none of the other bloggers here were jews; and 4) we all started rhyming your very racial linked name-- I would have doubts.

I am nowhere near perfect. I need to crank down on myself a lot when I start to judge people by race or religion. It happens several times a day. I just think we all here as a comment group are pushing it hard on Yoo.

I also know (and admit) that race is not the only reason for one guy in a group action taking the whole load in the public's eye. Ollie North was just a O-5 Lt Col and he took the whole blame (and to be fair, credit) for the Iran/Contra mess where there was a direct supervisor Vice Adm (O-9) who slipped past the public's eye and was reappointed to public service.
3.5.2009 12:02pm
Ralph R. Ralphson (mail):

Good question. He doesn't deserve one. Of course the launching point for Orin's post was an interview Yoo gave. Nonetheless, it is true that Yoo is the focal point generally. I see no reason to think that has to do with racism though.


There are plenty of other people who should take blame. But there is one crucial fact about the memos we're criticizing here that makes it not just rational, but sensible to focus the blame on him.

Let's look at them. Here's one:
First memo

Here's another:
Second memo (part 2)

Q1)
Can you figure out what about these memos makes it appropriate to criticize John Yoo for their laughable legal reasoning? (Hint: Look for similarities between the memos)


A) He's a "bush lawyer" (which, I note, was not how your initial post described him).

B) He's Korean, and most people are racist.

C) I just hate him.

D) He's the person who signed the memos. His name is on the bottom. HE WROTE THEM. HE IS ENDORSING THEIR REASONING AS THE CORRECT INTERPRETATION OF THE CONSTITUTION AND DOMESTIC LAW.

Points will be deducted for guessing. Turn in the questions with your scantron sheet.
3.5.2009 12:15pm
jukeboxgrad (mail):
anderson:

Yeah, I hate that about Mark too.


I hate that about Mark, but I also hate that about you. For that matter, I also hate that about OK. There are definitely a few people here that I love to hate.

==============
happyshooter:

Brown is a gay lawyer


Most people who realize that Brown is a straight person defending gay rights would have said this: "Brown is a gay-rights lawyer."

==============
crust:

I didn't know there was an area of law called bush law.


It's just a question of thinking about different things the word might mean.
3.5.2009 12:46pm
Ralph R. Ralphson (mail):
Jukeboxgrad:

Most people who realize that Brown is a straight person defending gay rights would have said this: "Brown is a gay-rights lawyer."


This is true. Also, most people trying to imply that Brown was a gay-rights lawyer, rather than a homosexual lawyer, would not follow the statement "Gay lawyers stretching the law to get gay marriage" by suggesting that that equates to


good gay good gay smart gay smart gay


My professors still taught the phrase Noscitur a sociis

I propose the application of that to Happyshooter's statement is straightforward and unambiguous.
3.5.2009 12:52pm
Joseph Slater (mail):
Back in high school, Kerrstein
Was the worst teen
Pants with burst seams
From too many beers . . . .

Man, that is harder to do than with Yoo.
3.5.2009 1:30pm
OrinKerr:
HappyShooter: "I need to crank down on myself a lot when I start to judge people by race or religion. It happens several times a day." Wow.

Joseph, usually people try to rhyme with the first name, getting borin, adorin, snorin, etc.
3.5.2009 1:38pm
Happyshooter:
Honestly, don't you react inside when you see the four black teens with the hanging pants at the mall pimp walking, or the 1987 buick regal with the blackout windows and mexican flag blasting music at the stoplight? Or worse, when I get in the sushi line at the kroger and in front of me is one woman, overweight, one man, overweight, three or four kids in nascar clothes or hats, and the man is wearing a jacket from one of the GM or Delphi plants.

I mean, I can pretend I don't react but I would be lying to myself.


And as for Orin, is that a 'jewish' name? I don't know, and didn't know Rohm was until a few months ago.
3.5.2009 1:45pm
Joseph Slater (mail):
Since I go by "Joe," I feel your pain about first name rhymes. Oh, the middle school jokes prompted by a teacher's seemingly innocent use of, "Joe Blow."

I was just going with Happyshooter's suggested "more Jewish" sounding name for you.
3.5.2009 1:47pm
Happyshooter:
Rohm sounds like the heavy from a bad 1980's sci fi movie. "Overdog Rohm has ordered you be cast in the pit of darkness!"
3.5.2009 2:19pm
OrinKerr:
HappyShooter,

First you admit that you judge people by their race and religion every day; then you admit that you have ill feelings towards African-Americans; then you start saying that you don't know if certain Jewish names are really Jewish. Perhaps it would be better if you didn't comment here? I don't think racism is civil.
3.5.2009 2:39pm
dr:
Prof. Kerr, though I think HappyShooter has done a fine job of embarrassing himself here, I do think you're mis-reading his "I don't know if Orin is Jewish" remark. I don't think he was casting doubt, but rather conceding ignorance.

Okay, I gotta go now -- some fat black guys in Nascar jackets are pimp-walking past my lowrider. You know how nervous that makes a man...
3.5.2009 2:47pm
Happyshooter:
Orin, I wasn't trying to be offensive. I really didn't know that Orin was a ethnic name.

I am sorry I suggested that other people in the world have reactions to people based on their appearence. I do, and I try to control it and correct for it. The fact that I am posting under a internet name means I can be honest about it, which is the blessing and the curse of the net. I did not mean to accuse you of having the same reactions.

Please do not allow my honesty and my shortcomings to overwhelm my main point, which is that the Yoo thing is getting driven into the ground and looks like it is getting unfair.
3.5.2009 2:49pm
Happyshooter:
In fact, I propose a truce. I will take time off here posting for two weeks, if you agree to stay off Mr Yoo for the same time frame.
3.5.2009 2:51pm
jukeboxgrad (mail):
happy:

Honestly, don't you react inside when you see the four black teens with the hanging pants at the mall pimp walking …


No. However, I am inclined to think I might be looking at a gang of sociopathic thieves when I see an SUV full of investment bankers on their way to the golf course.
3.5.2009 2:58pm
OrinKerr:
HappyShooter,

I propose a better truce: I won't comment about John Yoo for a day if you never comment here again.
3.5.2009 3:05pm
Happyshooter:
I was trying to extend a hand, after apologizing.
3.5.2009 3:15pm
OrinKerr:
HappyShooter,

I do not know you, but trying to exert control over the contents of someone else's blog is a very strange way to "extend a hand."
3.5.2009 3:26pm
Happyshooter:
I appologize. I didn't mean to insult your name and I did.

I also should not have projected my issues onto you.

Sorry.
3.5.2009 3:35pm
jukeboxgrad (mail):
Having issues and knowing you have issues puts you miles ahead of the people who have issues and don't know they have issues. And I think most people who have issues fall into the latter category. So I respect you for taking a big step to be bigger than your issues.
3.5.2009 4:31pm
Michael Drake (mail) (www):
And mind you, it's only because he has that certain amount of expertise.
3.5.2009 4:45pm
Constitutional Crisis (mail):

What happens when you're introduced to him at cocktail parties or the like? ...

I'm genuinely curious how the baseball game plays out IRL.
So I take it, then, that you're happy to drink his beer.
3.5.2009 4:50pm
Anderson (mail):
Just remember, in the exercise of his commander-in-chief power, the president has an unreviewable power to drink your beer.

(Or poison it, for that matter. Maybe Bush *wasn't* such a great guy to have a beer with, after all?)
3.5.2009 8:26pm
Elliot123 (mail):
"The end of the sentence, clear to everyone on the thread but you, apparently, is "it wasn't." There's no matter of courage involved here, because the end of the sentence is clear from the context. (That was the joke, which most people got.)

"It's rather strange that you seem to imagine to the contrary. Perhaps you could explain why you thought there was some aspect of courage involved? If you would like to comment here in the future, I would hope you will explain your accusation and offer an argument for it or else just apologize."


Well, why not just say what you mean? If you meant to criticize the man by saying, "On the other hand, back when he was in government he wasn't," that's an easy thing to communicate. It's just two words. I questioned it because that structure is often one people hide behind when they lack well formed thoughts or argument but want to pretend they do.

Actually, I do think it is a matter of courage to stand up and express one's thoughts. I think it's a matter of courage to clearly state one's position when the probabilty is there will be opposing views generated. I think it is a matter of courage to have sufficient confidence in one's position to state it clearly. I concede different people have different ideas of courage, but that is mine, and I hope it answers your question.

Let me ask this. Why leave off those two words? Can we agree the two statements communicate two different things? It is not a common construction, and it doesn't seem to be something you use often. I presume you were attempting to communicate something other than "it wasn't." What was that?
3.5.2009 8:30pm
Sagar:
well, as long as people are admitting their ignorance and apologizing ...

I did not know either Orin or Kerr (or Joseph Slater) are jewish names. I am sorry!

there may be other names of regular posters that i may not realize are jewish, and from time to time I may criticize them (hopefully not rudely) - but I am not an anti-semite. just ignorant of jewish names.

for the record, I don't see that happyshooter insulted Prof Kerr on his jewish name. Prof Kerr seems to overreact a bit these days (I am a long time reader and he was not like this a year ago ... may be people are trying his patience)
3.5.2009 8:44pm
Sagar:
Prof. Kerr:
not sure why people are assuming Yoo was a conservative

Maybe because he clerked for Judge Silberman and Justice Thomas; he obtained high-level postions in Republican politics in positions only open to conservatives; he is an active member of the Federalist Society; an he says things like, "I'm a conservative"?

Just a guess.


may be you should have quoted my complete comment instead of just that one sentence.

"...- he told his boss what the boss wanted to hear; typical consultant)

* i don't know if he is one or not, but i don't see that being a necessary condition for what he did"

I wondered why his being a conservative should be the cause of his stance on terrorist interrogation.

Bush was an alcoholic - was being a republican the reason? Daschle and Gaitner are tax cheats - is it because they are liberals / democrats? (i don't know if Gaitner is a democrat or a liberal).
3.5.2009 10:56pm
OrinKerr:
Sagar,

I was actually joking about the Jewish name stuff: lots of people don't realize it's a Jewish name. (See the first post on tis, where I called the argument that Happyshooter was antisemitic "absurd".). But obnoxious commenters like Elliot123 and Happyshooter are indeed trying my patience: As I've commented before, I'll probably just stop allowing commenting on my threads to avoid having to encounter folks like that. It's a shame that they will have ruined it for everyone else, but that's the way it goes, I guess.
3.5.2009 11:12pm
OrinKerr:
Ellio123,

You seem to be mistaking a common joke form for some sort of weird veiled message. I think it's time you took a break from commenting here.
3.5.2009 11:15pm
jukeboxgrad (mail):
sagar:

I wondered why his being a conservative should be the cause of his stance on terrorist interrogation.


But no one here has suggested that "his being a conservative [was] the cause of his stance on terrorist interrogation." On the contrary. I think various people in various threads have pointed out that "his stance on terrorist interrogation" is a betrayal of conservatism, rather than something 'caused' by conservatism. So I don't know why you would be wondering about that.

Anyway, maybe you were wondering (to yourself) about that, but it's not what you asked. You didn't say 'I wonder why his being a conservative should be the cause of his stance on terrorist interrogation.' You said "not sure why people are assuming Yoo was a conservative," even though no one was "assuming Yoo was a conservative." There is no need for anyone to be "assuming" that, because it's well-known fact (although maybe not known by you) that he is a conservative. At least a self-identified 'conservative,' if not actually true to the meaning of the word.

may be you should have quoted my complete comment instead of just that one sentence.


The other words in your "complete comment" don't change anything I just said.
3.6.2009 6:23am
LM (mail):
jukeboxgrad:

Having issues and knowing you have issues puts you miles ahead of the people who have issues and don't know they have issues. And I think most people who have issues fall into the latter category. So I respect you for taking a big step to be bigger than your issues.

I assume you're referring to HappyShooter, and I agree. I also understand why it was too late for HS to get himself off Orin's last nerve. But having often been appalled at things HS says here, I'm appreciate the chance to echo your admiration for him in this respect.
3.6.2009 8:46am
LM (mail):
I'm appreciate? Sheesh.
3.6.2009 8:47am
Sagar:
jukebox,
i don't want to beat the deadhorse any more particularly this late (but seeing that the comment thread is at 99, let me respond to you and make it a century:)

you are right about my comment not being clearly worded. but i still think it says what i meant - when someone does something wrong or of which one disapproves, unless his ideology or party affiliation is the cause, why bring that into the mix?

to that effect see my simpler examples about alcoholic Bush, tax cheats etc.
3.6.2009 11:14am
jukeboxgrad (mail):
when someone does something wrong or of which one disapproves, unless his ideology or party affiliation is the cause, why bring that into the mix?


OK, thanks for clarifying. I don't see this question expressed in your original comment, but I accept that it's the question you had on your mind. And I think it's a fair and interesting question.

It's not just that Yoo happens to be a conservative, and also happened to write some odious memos. Those two facts are closely connected. He wrote those memos in connection with supporting an important policy being pursued by a conservative government. He was in that job to begin with because he's a conservative. And notice that the people who have been defending him and those policies are mostly conservatives.

This is why we're talking about the fact that he's a conservative, and not, for example, talking about the fact that his background is Korean. His background as a Korean has nothing to do with the memos he wrote. But his identity as a conservative has a great deal to do with the memos he wrote. Needless to say, the memo was part of his job. If he had done something objectionable outside his job (e.g., some form of law-breaking), there would probably be little or no reason to drag his identity as a conservative into the discussion (unless, say, he was a drug addict in his personal life while having a job supporting the conservative position regarding the war on drugs).

We are paying no attention at all to all sorts of other personal qualities (like, say, his height, or his sexual or dietary preferences, or whether he is left-handed or right-handed) that just aren't relevant. But his identity as a conservative is relevant.
3.6.2009 11:58am
LM (mail):
jbg,

And notice that the people who have been defending him and those policies are mostly conservatives.

And the author of the OP being criticized by those people is also a conservative. Not that your comment suggests otherwise, but I think it's important to point out that being a conservative, in and of itself, doesn't lead one to do or support what Yoo did. Other personal traits are required, and those aren't a function of political ideology.
3.6.2009 5:22pm
AntonK (mail):
Read up, morons.
3.6.2009 9:10pm
LM (mail):
Care to be more specific about who you think the morons are, and why?
3.6.2009 10:02pm
LM (mail):
Anton,

Forget that. Or answer it if you like. Either way, I have a more important question. Was the thrill of being rude in public worth putting another nail in the coffin of our* privilege to comment here at all?

[*"our" obviously including "your"]
3.6.2009 10:16pm
OrinKerr:
AntonK,

You have long been an uncivil commenter, and that particularly hostile ad nasty comment has just led you to be banned.
3.7.2009 6:40am
jukeboxgrad (mail):
lm:

And the author of the OP being criticized by those people is also a conservative.


I know, and that's why I said "mostly." But you're making an important point, and I'm glad you spoke up to make it. It's a point that should have been part of my comment.

Other personal traits are required, and those aren't a function of political ideology.


I'm not sure that's exactly right, to the extent that "personal traits" and "political ideology" are not entirely separate matters. John Dean has written thoughtfully about "authoritarian Republicans" as a "personality type" (link, link, link, link). And so have others.

==================
antonk:

Read up …


There must be two different commenters using the name AntonK. Because I remember someone by that name saying this:

my own comments are always judicious
3.7.2009 7:55am
Just an Observer:
Yoo's op-ed defense of his 10/23/2001 memo, linked above in the gratuitously offensive comment, really deserves some attention.

Yoo spends much of the op-ed rationalizing the criticism of the his memo, ignoring the fact that it was Steven Bradbury's OLC memo almost seven years later that summarized the most salient criticism. And he does not engage the substance of Bradbury's points at all, but spins this as a political attack by the Obama administration. (The WSJ headline adds, "Why the latest assault on Bush antiterror strategy could make us less safe.")

The op-ed concludes:

In releasing these memos, the Obama administration may be attempting to appease its antiwar base -- which won't bother to read the memos in full -- or trying to look good for the chattering classes.

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.


So, by Yoo's logic, it is the release of the original memo that is the problem, not its discredited content.

And in trying to head off any consequences for the lawyers who wrote bad advice, he conflates their role with that of "intelligence and military officials" who may rely on such advice.

Overall, Yoo's op-ed appeals to our basic sympathy for those whose job it was to make hard choices after 9/11. On first reading, I felt that sympathy. But I find his excuses disingenuous and unpersuasive.
3.7.2009 9:19am
Hewart:
Professor Kerr,

May I say that, while I understand and appreciate the particular challenges of moderating a blog, I do hope that you are able to keep comments open?

It is a rare and fine thing to be able to have a forum like this. Although I don't comment here as much as I'd like, I value very much the give and take and often insightful remarks that characterize the interaction. Some of us may never get to law school and this forum is a slim but significant consolation.

Thank you for maintaining this kind of accessibility, despite the inexcusable abuses of a few infractors.

Hewart
3.7.2009 10:08pm
LM (mail):
jbg,

I'm not sure that's exactly right, to the extent that "personal traits" and "political ideology" are not entirely separate matters. John Dean has written thoughtfully about "authoritarian Republicans" as a "personality type"

George Lakoff makes a similar point, and I agree with it, but I also think it's easy to overstate. For example, the crux of the Washington Monthly article is that authoritarians prefer Republicans by 20%. That's significant, and it lends credibility to the association you drew, but a 20% preference also leaves a lot of authoritarians not voting Republican. And it says nothing of how many voters have authoritarian leanings, so it's unclear how much of either party they could represent.

I suspect not very large, but certainly loud and activist. It's that fact, i.e., that authoritarians and other extremists are so activist and loud, and are often interesting to read and listen to, that makes them easy to paint as the public faces of both parties.

Back to your point, I think the secretive, insular White House culture Cheney and Addington fostered did create a hospitable environment for authoritarian excesses like the Yoo memos. And that authoritarians are more likely to be Republican may have made it somewhat more likely there'd be a few Yoo's around to propagate their views. Moreover, liberal ideology aside, my very strong preference for Democrats over Republicans reflects my opinion that the Democratic Party hasn't been nearly so overtaken by its extremist authoritarian contingent as the Republicans have.

Nonetheless, my impression remains that non-activist, mainstream liberals and conservatives have a lot more in common than not. Unfortunately, those commonalities aren't very interesting to read or write about, and the people who share them aren't generally the most motivated to make themselves heard. So the interesting differences at the margins fill the vacuum and appear disproportionately large.
3.8.2009 9:19pm
jukeboxgrad (mail):
Thank you for those interesting observations.

my impression remains that non-activist, mainstream liberals and conservatives have a lot more in common than not. … the interesting differences at the margins fill the vacuum and appear disproportionately large.


It's true that in our news culture the "interesting differences" get magnified. And I think this tends to obscure an important underlying reality: what the two parties offer is not terribly different. In my opinion, we have the illusion of choice, but not really that much choice. As I've often said, it would be good if we had a two-party system. We could solve problems more effectively if we were choosing from, and open to, a broader range of possible solutions. It's true that mainstream liberals and conservatives fundamentally have a lot in common, but there are still lots of different ways of achieving the same goals, and some solutions are better than others.
3.9.2009 6:26am
LM (mail):
There's a lot to be said for a Parliamentary system.
3.9.2009 5:02pm

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