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Students Protest Hiring OLC Alum:

Inside Higher Education reports that a group of students and professors at the University of Minnesota Law is upset that University of St. Thomas professor Robert Delahunty is scheduled to teach at Minnesota next semester. Their objections center on Delahunty's tenure at the Office of Legal Counsel, where he was a career civil servant. At OLC, Delahunty participated in drafting controversial memos relating to torture and the treatment of detainees.

"He's prominent for all the wrong reasons," said Jon Taylor, a first year law student at Minnesota who has been circulating a petition asking the law school's dean to reconsider the hire. "I don't think this is what we're paying for at a top 20 law program." The law school has about 800 students, and Taylor said that he has gathered close to 70 signatures and expects to reach 100 by Friday.

The controversy stems from a memorandum drafted in 2002 by Delahunty and a Justice Department colleague, John Yoo, a conservative scholar and professor of law at the University of California at Berkeley's Boalt Hall. Drafted shortly after 9/11, the memo concluded that the Geneva Convention did not cover al-Qaeda suspects captured in Afghanistan, and helped lay the foundation for the Bush administration's handling of prisoners captured during the war on terror.

Inside Higher Ed also notes that the plan to hire Delhunty has divided the Minnesota faculty. A story in the Minnesota Daily quoted Associate Dean Michael Paulsen in support of Delahunty's visit.

"Robert Delahunty is one of the nation's leading constitutional and international law scholars," Paulsen said. "He's an outstanding teacher."

Some of the controversy comes from a misunderstanding of the facts, Paulsen said. Most likely, many students are not familiar with Delahunty's memo.

Paulsen also said the protests are coming from a few extreme individuals in the Law School.

"That's a gross violation of academic ethics and academic freedom," he said. . . .

"It sometimes happens that even professors are not respecters of academic freedom and get their facts wrong, too," he said.

Nine members of the faculty responded to the plans to hire Delahunty and Paulsen's comments with this letter, concluding:

Our opposition to the hiring of Mr. Delahunty has got absolutely nothing to do with academic freedom but all to do with legal ethics. Mr. Delahunty's role in the Torture memos was not academic and we object to hiring someone of his credentials rather than to anything that he may say in class should he be so hired or concerns about his scholarly research or academic work.

We thus call on our Co-Deans to reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accomodate students who may have concerns about taking a mandatory course from such an individual.

The student petition organizers explained their opposition in these terms to the Minn. Daily:

"It doesn't have anything to do with academics; we hear he's a fine teacher," Taylor said. "It has more to do with ideology."

Taylor said students and staff were uninformed about the decision, and those active in human rights immediately recognized the name because "amongst human rights violators, he's a pretty prominent leader."

Interestingly enough, the class Delahunty is scheduled to teach is one normally taught by co-conspirator Dale Carpenter.

UPDATE: UMinn law student Ivan Ludmer offered these thoughts on the petition at Joint Strike Weasel. I've also learned that St. Thomas' decision to hire Delahunty was criticized as well.

On the issue of Delahunty's role at OLC, here is what John Yoo wrote about Delahunty in War by Other Means: An Insider's Account of the War on Terror:

When the question of the application of the Geneva Conventions came to OLC, I asked Robert Delahunty to help me with the initial research and drafting of the opinion. Delahunty was one of the three career lawyers in the office who had risen to the level of the Senior Executive Service, the top crust of the civil service. A man in his early fifties, Delahunty had a large white beard, a mane of white hair, a round jovial face, and a hint of an English accent--he often reminded me of a kindly Saint Nick. He had first gone to England to study Greek and Roman philosophy and history, eventually becoming a tenured faculty member at a British university, left to go to Harvard Law School, and joined the Justice Department in the late 1980s. He had drafted many of OLC's opinions on war powers, foreign policy, and presidential-congressional relations under the first Bush and Clinton administrations. He had an encyclopedic knowledge notjust of the law and academic works, but of the real lifeblood of international law--the examples of state practice. To my mind, Delahunty was the very model of the career civil servant who applies his or her long years of experience and knowledge to the benefit of the American people.
As far as I am aware, this is the only discussion of Delahunty in the entire book. In his subsequent discussion of the infamous "torture memos," Yoo does not detail the nature or extent of Delahunty's role.

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A Lame Defense of the Opposition to Professor Delahunty:

As co-blogger Jonathan reports, nine members of the University of Minnesota Law School faculty have signed a letter criticizing the law school's decision to hire Professor Delahunty to teach constitutional law as a visiting professor for one semester. Here is a representative excerpt of what they say [I rearranged the ordering of the pargraphs, but that doesn't affect the substance]:

[W]e believe that is necessary for us to disassociate ourselves from the decision of the Co-Deans of the University of Minnesota Law School to hire Robert Delahunty to teach Constitutional Law for the Spring term of 2007. We believe that in making the decision in this particular case the Co-Deans had been unaware of the grave institutional implications of hiring Mr. Delahunty and we call on them to rectify the situation. We can only assume that the Law School would not have hired Enron officials to teach accounting to our students. Nor should we hire, even if on a temporary basis, a lawyer so directly implicated in what many in the international community regard as war crimes....

In connection with his government service, and entirely outside any academic function, Mr. Delahanuty co-authored a secret (but later leaked) memo with John Yoo, in which they concluded that the "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution." The memo also concluded that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws had "no binding legal effect on either the President or the military."

This memo, part of the now notorious "Torture Memos," facilitated the eventual torture of detainees not only in Guantanamo but in Abu Ghraib and elsewhere. The Delahunty-Yoo memo gave the US Administration and its agents the legal blanket to conduct such acts, which are in clear violation of international law, with virtual impunity....

We thus call on our Co-Deans to reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accommodate students who may have concerns about taking a mandatory course from such an individual.

Thus, in essence, the professors in question are calling for Professor Delahunty to be blackballed not just from Minnesota but from the legal academy; assumedly, the same objections they have to him teaching at Minnesota would apply to any self-respecting law school; one would assume that no such law school would hire "Enron officials" to teach accounting.

And what did Delahunty do to deserve this obloquy? Despite the rhetoric of his being "directly implicated in what many in the international community regard as war crimes," and the implication that he engaged in illegal activities like the Enron accountants, what he did was give his employer, the President of the United States, legal advice. The professors present no evidence that Delahunty's advice was not the sincere expression of his legal analysis of the relevant issues. So let's (safely) assume that Delahunty was indeed sincere. He is asked by the President to advise him on whether various treaties, statutes, and international customary law apply to conflicts with a non-governmental actor such as Al Qaeda, and whether the president may in any event have certain inherent constitutional powers regardless. He concludes that the statutes, treaties, etc., don't apply, and the president has a rather free hand. What is he supposed to do at that point? Give what he deems to be inaccurate, but politically correct, advice to the President? Wouldn't that be a gross violation of his professional obligations, and professional ethics? Very strange that the authors of the letter should claim that their opposition to Delahunty is grounded in "legal ethics." Is it ethical to give what you think is bad legal advice to your client?

The letter adds "that in Hamdan v. Rumsfeld, the U.S. Supreme Court rejected the conclusions of the Yoo-Delahunty memo and relied on the Geneva Conventions, in holding that the procedures adopted by the military commission for trying Al Qaeda and Taliban detainees did not meet the requirements of international law." That's a bit of a distortion, because, as I recall, the Court actually held that the UCMJ, a statute, was meant to incorporate the protections of the Conventions for such detainees, not that the Geneva Conventions themselves were necessarily otherwise binding and self-executing in these circumstances. But in any event, there were three dissenting Justices in Hamdan, and there would have been four if Chief Justice Roberts had not had to recuse himself. This should make it rather clear that Delahunty's views were well within the realm of a reasonable interpretation of the legal sources before him. Or are Justices Thomas, Alito, Scalia, and Roberts all to be considered "directly implicated in what many in the international community regard as war crimes," and have no moral standing above Enron officials?

It should be rather obvious that law schools should not have a policy of refraining from hiring individuals whose views on international law happen to not coincide with what "many in the international community" happen to believe, regardless of whether those views were expressed in academic journals, in blog posts, or (and perhaps especially) in serving one's client while in government service. And indeed, the professors' letter [or, more precisely, the remedies for Delahunty's secular heresy advocated in the letter] arguably violates the University of Minnesota's own policy on academic freedom, which states that "Academic Freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research and creative expression and to speak or write as a public citizen without institutional discipline or restraint."

Unfortunately, Delahunty's situation is not unique; from the scuttlebut I've heard, at least one "guru" of international law has explicitly based his opposition to faculty candidates at other law schools (at least when asked) on his/her distaste for their "conservative" perspective. The willingness, nay, eagerness, of some law professors to excommunicate any legal scholar who dissents from the conventional wisdom (at least among academics) regarding the scope of Executive Power in the War on Terror, and the role international customary and treaty law should play in domestic constitutional and statutory interpretation, is troubling indeed.

UPDATE: Note that Delahunty is not being attacked for the "torture memos," but for one particular memo he co-authored with John Yoo, arguing about whether the U.S. is obligated to give not state actors like Al Qaeda the same protections as members of a foreign state's military. The memo can be found here. I think anyone who reads this memo and concludes that the Yoo-Delahunty position is so clearly mistaken that it's facial proof of bad faith or incompetence (as some commenters have suggested) is reading it with a jaundiced eye. I tend to be skeptical of OLC opinions myself, because the Office seems to me to generally be trying to present the best legal arguments for what the president wants to do, rather than giving fully objective legal advice (and so I've been told by OLC alums). But (a) I don't expect career civil servants asked to help out on a case to follow that philosophy; (b) arguing that this is unethical would mean that law schools should never hire any OLC alums, at least if they worked on opinions related to foreign policy (what exactly was the LEGAL justification for attacking Serbia and killing hundreds of Serbians?, or for invading Haiti? or Panama?--all more serious, IMHO, than, e.g., the precise form of tribunal facing Al Qaeda detainees); and (c) the Yoo-Delahunty position received substantial support in the D.C. Circuit and the Supreme Court, suggesting that these were indeed serious arguments. And, as a commenter on another thread notes, the memorandum at issue states: "We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that these treaties do not apply to the Ta1ian militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners."

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OLC Alum Hullabaloo (Continued):

UMinn law student Ivan Ludmer has two follow-up posts (here and here) on the controversy over whether Robert Delahunty should teach Constitutional Law at Minnesota next year. Among other things, Ludmer notes that, according to this story in the St. Paul Pioneer Press, UMinn officials were completely unaware of Delahunty's role in the "torture memos" -- and presumably equally unaware about the controversy sparked by his hiring at St. Thomas several years earlier.

Brad Wendel also has a lengthy post at Legal Ethics Forum examining whether one could oppose hiring Delahunty without threatening academic freedom. The answer is yes, Wendel concludes, at least in principle. Among other things, Wendel notes, one could oppose Delahunty's hire on non-ideological grounds insofar as one believes his work "was results-driven to an extent that crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." [Aside: I don't know Delahunty, buy given his apparent success as a career civil servant at OLC during the Clinton Administration, I wonder whether this would be a fair characterization of his work.]

If this is the proper standard, I wonder about its implications. I have seen many legal documents prepared by federal agency attorneys that clearly "crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." Granted, these legal opinions rarely, if ever, concern something as sensitive (or morally weighty) as torture and the treatment of detainees, and we may justifiably apply uniquely demanding standards to OLC that we would not apply, say, to the FDA or EPA. Nonetheless, some agency legal work is simply gawd-awful, transparently result-oriented and undertaken with little regard for the relevant legal requirements. Should those who willingly worked on such matters also be excluded from the academy? Or does the seriousness of the subject matter make this a special case? (And, if so, then is not the opposition to Delahunty in some sense "ideological"?)

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Powerline on the Delahunty Controversy:

Scott Johnson of Powerline has an interesting post on the controversy; his views are generally consistent with the ones I expressed, though he emphasizes some different points (and is rather harsher on the UM professors who signed the protest leter than I was).

OLC Alums Support Delahunty:

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

Dear Deans Charles and Morrison:

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

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

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

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

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

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

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

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

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

John E. Barry
Partner
Wiley, Rein and Fielding

Douglas R. Cox
Partner
Gibson Dunn

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

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

John O. McGinnis
Professor of Law
Northwestern University Law School

H. Jefferson Powell
Professor of Law
Duke University Law School

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

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

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

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

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

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

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