Last week, the WSJ ran an op-ed by University of Chicago law professors Eric Posner and Adrian Vermeule that could best be described as anti-anti-torture memos. Although not defending the specific conclusions of the individual OLC memos on torture, the applicability of the Geneva Conventions to enemy combatants, and so on, the op-ed strongly challenged the memos’ critics, who they claim “have puffed up an intramural methodological disagreement among constitutional lawyers into a test of professional competence.” I wholeheartedly agree. In my experience there is a disturbing tendency — on all sides of the ideological spectrum — to accuse those with whom one disagrees of ignorance, bad faith, or both. After all, why debate an opponent when you can diminish or demonize him?
Some further excerpts from Posner and Vermeule’s thoughtful and persuasive piece:
the memorandum’s arguments are standard lawyerly fare, routine stuff. The definition of torture is narrow simply because, the memorandum claims, the relevant statutory texts and their drafting histories themselves build in a series of narrowing limitations, including a requirement of “specific intent.” The academic critics disagree, but there is no foul play here. . . .
As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy’s plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president’s commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president’s power, as the memo concludes. That conclusion may be right or wrong — and we, too, would have preferred more analysis of this point — but it falls well within the bounds of professionally respectable argument. . . .
whatever one’s views on the use of torture on the battlefield, the memorandum is not “incompetent” or “abominable” or any more “one-sided” than anything else that the Justice Department has produced for its political masters.
As Glenn would say, read the whole thing. [Of note, Berkeley law professor John Yoo, author of one of the controversial memos (discussed in several prior posts, the most recent of which is here), made similar arguments in his own defense in the July 6 LA Times.]
Posner and Vermeule also suggest an interesting intellectual undercurrent to the controversy.
An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars [including John Yoo] who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress. . . . From this perspective, the academic critics’ complaints have a distinct methodological valence, one with intellectually partisan overtones. . . .
Given the op-ed’s authors — two prominent and prolific University of Chicago law professors — I expected the op-ed would get more comment in the blogosphere. Perhaps it was overlooked because the WSJ did not place the article on-line. Now that it’s posted on Chicago’s site here, perhaps it will receive more discussion. [NOTE: Link is down, but Google cache is here.]
Update:Neither Jack Balkin nor Michael Froomkin is persuaded by the Posner-Vermeule op-ed.
(By the way, what does it mean that I “often write[] as if [I] were a government lawyer”?)
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