The San Francisco Chronicle reports the National Lawyers Guild and several Berkeley student organizations are pressuring a state government attorney to drop plans to co-teach a class on “Constitutional Design and the California Constitution” with former OLC attorney John Yoo.
“By instructing a class with Mr. Yoo, you are helping to legitimize his illegal and unethical actions,” organizations led by the National Lawyers Guild said Tuesday in an open letter to Deputy Attorney General David Carrillo, a doctoral candidate and instructor at the university’s Boalt Hall law school.
They asked Carrillo either to teach the course by himself, if the school will allow it, or to leave it to Yoo. Signers included the law school’s chapter of La Raza Law Students Association and the Boalt Alliance to Abolish Torture.
The class is scheduled to begin January 11, and 23 of 24 spots are filled. (LvHA)
Nate says:
What was the point of posting this story? Naturally, as a legal matter, these groups are entitled to pressure Carrillo into dropping his plans to co-teach the class with Yoo. Of course, it’s morally reprehensible that Boalt continues to employ Yoo, but I’d expect private parties to do whatever it takes to insure that is no longer the case.
December 16, 2009, 11:09 pmArthurKirkland says:
It is unfortunate that Boalt continues to employ John Yoo, but I would not call it morally reprehensible. I would reserve that term to describe John Yoo’s failure to resign.
December 16, 2009, 11:21 pmCornellian says:
It’s the free market working as intended.
December 16, 2009, 11:33 pmCornellian says:
It’s the free market working as intended.
December 16, 2009, 11:33 pmCornellian says:
It’s the double posting working as not intended.
December 16, 2009, 11:33 pmjosh bornstein says:
Actually, I like learning of these types of stories. Yoo still teaches there, and students are acting (in a peaceful manner, as far as I can tell) to create pressure to segregate Yoo as much as possible. Hopefully, he is teaching elective classes (or, at least, classes where students are not forced into his class, as we had during our first year of law school), where students who want him as a teacher can seek out his classes, and vice versa.
I think the calls for Yoo to resign are silly. That would require some sort of awareness by Yoo that his past behavior was seriously flawed, and I’ve seen no evidence that Yoo thinks he behaved in any way poorly in the past, nor that his legal advice was not based on solid legal principles and precedent. One can hope that he has an afflatus. But let’s not hold our collective breath.
December 16, 2009, 11:39 pmJagermeister says:
It would seem that “illegal” and “unethical” are specific charges, posited as a violation of the written code of law or specific ethics standards of the bar. Given that, it would also appear to me that Mr. Yoo has an actionable case of slander against the authors of the “open letter”, should they be unable to prove the violation.
As of this moment, I haven’t heard of any legal or ethics charges against Mr. Yoo. I also thought that discipline for “moral turpitude” wasn’t something that was regularly embraced in this day and age.
December 16, 2009, 11:40 pmAJK says:
Maybe I’m missing something, but why is it morally reprehensible for John Yoo to not quit his job? What jobs do you think John Yoo should be allowed to work at? Or has he disgraced himself so much that honor requires him to kill himself?
December 16, 2009, 11:49 pmuh_clem says:
Pretty much anything that doesn’t involve giving opinions on legal issues. Butcher, baker, candlestick maker. That kind or career.
December 16, 2009, 11:55 pmCase3L says:
I certainly have no problem with students organizing a boycott of a professor. I’ve had thoughts of doing the same thing in the past (although not for political reasons). I just don’t know why they think that somebody co-teaching a class with Yoo on a topic unrelated to what he is notorious for legitimizes what made him notorious.
Call me masochistic, but if I felt as strongly about Yoo as some of these people do, I’d welcome the opportunity to take a class with him in order to “learn about the enemy” so to speak. This is school – we’re supposed to be confronted with points of view we’ve never had before.
December 17, 2009, 12:01 amConstantin says:
I think the same thing about Eric Holder.
And Barack Obama.
War criminals both, already.
December 17, 2009, 12:09 amNate says:
For shame, my good man. Has your head been in the sand? DOJ’s OPR report on Yoo, Bybee et al. will be released soon. Padilla v. Yoo is pending before the Ninth Circuit. And here’s one legal ethics expert’s opinion on Yoo’s actions. And this is just the tip of the iceberg.
December 17, 2009, 12:11 amJohn Cunningham says:
Most charming to see little stormtroopers strutting around puffing up their narrow little Commie chests.
December 17, 2009, 12:15 amTK75 says:
Unless I missed something, didn’t Yoo simply give a legal opinion in good faith that may or may not have been incorrect?
Why the witch hunt from all the wackjob liberals trying to punish anyone associated with Bush? You idiots defend people like Lynn Stewart but try to shame men like Yoo into virtual suicide.
I respect Yoo more as a lawyer than our Dear Leader Obama or his incompetent sidekick Holder…
December 17, 2009, 12:16 amCornellian says:
Unless I missed something, didn’t Yoo simply give a legal opinion in good faith that may or may not have been incorrect?
You’ve missed something. It wasn’t correct and the “good faith” part is in serious dispute.
December 17, 2009, 12:31 amrpt says:
A little mixed metaphor?
December 17, 2009, 12:46 amArthurKirkland says:
John Yoo’s legal work was repudiated by the Department of Justice; additional reproach may follow. Recognizing his moral failings does not require a microscope. Whatever the appropriate standard for a teacher of law students, John Yoo does not meet it.
His presence discredits Boalt, for reasons related solely to his conduct but unknown to his employer when he was hired. A good man would resign. Yoo, however, does not.
I still hope he gets a chance to defend his positions in court.
December 17, 2009, 1:02 amNatalie Wellman says:
You’d think the National Lawyers Guild would know that Yoo is not guilty of any illegal actions unless convicted of such in court, which has not happened. As for unethical, that’s a matter of opinion. But, as we know, differing opinions are not tolerated by open-minded liberals. It was like that when I attended Berkeley in 1966 and it hasn’t changed much.
December 17, 2009, 1:17 amRicardo says:
In addition to the above mentioned civil lawsuit and the inquiry by DoJ, is it really the case in any jurisdiction within the U.S. that you need to show a negative jury verdict or negative finding by an official ethics panel to support an allegation of “illegal” or “unethical” conduct by a public official?
Since the allegation against Yoo is that his opinions were rendered in bad faith and since the only person in the world who can know whether that is true to a certainty or not is Yoo himself, I don’t see how any American court could establish the “actual malice” showing needed for a public official to sue for slander. If people are free under the First Amendment (and they most certainly are) to argue that Obama is a secret Muslim Kenyan Communist they ought to be able to freely speculate on whether or not Yoo is a lousy lawyer, a sycophant and a water-carrier for the Bush Administration.
Maybe he could follow the path of certain foreign despots and disreputable Hollywood celebrities (like Roman Polanski) by suing them in a British court instead where standards are looser.
December 17, 2009, 1:18 amPerseus says:
I, too, am puzzled by the post–or at least allowing comments–as it brings out the usual sanctimonious suspects and leads to the rehashing of old arguments.
December 17, 2009, 1:27 amVolokh Groupie says:
This line of argument about Yoo’s ethical duty to stop teaching law school classes is an interesting one if generalized. Let’s take as a fact that Yoo:
1. Gave bad advice or made poor arguments repudiated by the justice dept. (in the following administration) and by the majority of academia.
2. Did not make those arguments in good faith and instead as a means to achieve the administration’s goals.
The latter would simply make Yoo political and the first doesn’t seem to be much different from the types of things other academics argue in countless articles in law reviews every year (and that’s not even beginning to look at books they publish or speeches they give or the fact that many of these same arguments are viewed as ‘provocative’). So the only difference between all the tenured academics who have committed the same ethical breaches as Yoo is that Yoo did it in a very high federal position where he likely influenced policy. Is that the criteria the other commentators are suggesting then as a personal ethical recusal from teaching in a law school? And should self serving and/or embarrassingly weak arguments simply be limited to issues related to terrorism? If other OLC members author or participate in memos which similarly violate these boundaries in other areas (say corporate law issues or civil liberties issues) I’m assuming that the same commentators would then go after them with respect to their teaching in academia? If so, the list of current professors or teachers at law schools who should have ethical qualms with continuing to teach is a much longer list than just Yoo, and will probably be met with objections from those who don’t think Yoo should even teach a law school class.
December 17, 2009, 1:45 amKazinski says:
Hard to argue with that:
23 of 24 spots are filled.
December 17, 2009, 2:15 amBruce Hayden says:
Ho, and we are supposed to believe that Eric Holder’s Justice Department is going to be somehow unbiased here? My view is that this is the most politicized Justice Department of our lifetimes. Somehow, by magic, prosecutions of Democrats get dropped, even after having plead guilty, while concentrating on Republicans. Amazingly, within the first year in office, Holder, et al., have made highly political charging and prosecution decisions in any number of cases – likely more already than during the entirely of the Bush Administration’s eight years.
So, no, I don’t take seriously anything coming out of the DoJ concerning Bush era people, not with the President still blaming every ill in the country on his predecessor (most lately in his Nobel speech).
December 17, 2009, 2:48 amSteve says:
Somehow, by magic, prosecutions of Democrats get dropped, even after having plead guilty, while concentrating on Republicans.
If the Don Siegelman and Ted Stevens cases don’t convince you that the Holder DoJ is the most biased department in history, I can’t imagine what would.
If other OLC members author or participate in memos which similarly violate these boundaries in other areas (say corporate law issues or civil liberties issues) I’m assuming that the same commentators would then go after them with respect to their teaching in academia?
I think it makes a big difference to Yoo’s critics that his arguments were a justification of torture as opposed to some random governmental act.
December 17, 2009, 2:59 amRicardo says:
DOJ up until recently was providing John Yoo with lawyers at public expense to defend him against Jose Padilla’s lawsuit. Now, they have switched — at Yoo’s request — to simply reimbursing Yoo for all the legal expenses incurred through his private attorney. DOJ has continued to file amicus briefs taking John Yoo’s side of the case in the lawsuit. Additionally, DOJ has been delaying the release of the OPR report without any real explanation to the public of why it is doing so. It may have to do with the inherent conflict of one part of the DOJ bureaucracy defending Yoo while another attempts to censure him.
Clearly, the most politicized Department of Justice in history will stop at nothing to nail John Yoo to the wall. Do you have any first-hand inside knowledge about whether or not OPR is considered more partisan than the divisions that would be defending Yoo and filing amicus briefs on his behalf?
December 17, 2009, 3:39 amRobert Brylawski says:
Hold on here, everyone is missing the issue that this article raises.
The issue here is not what you think of John Yoo’s legal decisions or his suitability to be a law professor – or calls for him to resign. These have been discussed in many fora for months, but are not the central issue here.
Rather, this article talks about efforts by people and organizations to put pressure on David Carillos for him to not associate professionally (in this case, by teaching a class) with John Yoo – and assert that such association make him complicit in John Yoo’s alleged “illegal and unethical actions.
In other words, we are dealing essentially with an campaign designed to pressure John Yoo’s professional associates to cut off contact with him – lest they be viewed as also culpable by that contact and be subject themselves to public reprobation.
And how far will this go. Will his colleagues be pressured to not speak or e-mail him, to not return his letters or e-mails, to refuse to review his writings? Will they be asked to restrict Yoo’s participation in professional associations or perhaps faculty meetings – lest they be judged as complicit by such association?
The goal, of course, is to make John Yoo such a “leper” as to effectively make it impossible for him to continue in his career as a law professor.
Now it is one matter for individuals on their own accord to decide to what extent they wish to associate with John Yoo. Quite another to pressure others to cut off said contacts using a guilt-by-association argument to subject the latter to public calumny should they not accede.
How is this latter tactic in essence different from guilt-by-association methodology behind blacklisting, as was done during the HUAC era.
Or does political ideology and partisan allegiance trump intellectual consistency?
December 17, 2009, 4:20 amSarcastro says:
And then you have to read them! Allowing comments is awful!
December 17, 2009, 4:21 amRicardo says:
You are right that this is a serious issue. There are two ways to address it.
One is to say that there is a distinction between being wrong and committing intellectual fraud. Without getting into the factual allegations, I believe most of John Yoo’s detractors think intellectual fraud rather than a reasonable different of opinion characterizes his work at OLC. If you think Yoo’s detractors are acting in good faith, the more appropriate comparison might be Ward Churchill or a scientist who deliberately falsifies data in published research. People who may be sympathetic to Communist or socialist ideas but who have not committed overt intellectual fraud in their published, professional work would be in a different category. Intellectual frauds are, and ought to be, ostracized by the academic community. Naturally, accusations of fraud should be treated very, very carefully since it is still too easy to conflate fraud with legitimate difference of opinion. Which brings us to…
Second, there is a distinction between potentially illegal and unethical conduct and holding offensive or dubious beliefs. To run with the Communist analogy, suppose a former Soviet official was teaching law at an American university. Wouldn’t you want to know a little more about what that person did in his prior career before deciding whether it is appropriate for him to hold a professorship? If he was in the KGB and was implicated in murder, torture or kidnapping, for instance, I imagine you might have reservations. On the other hand, if he was some harmless mid-level bureaucrat, you might not really care even if he was active in various leftist movements.
December 17, 2009, 4:47 amjosh bornstein says:
Ricardo,
December 17, 2009, 5:08 amNicely (and objectively) put.
Perseus says:
You must be channeling Sarcastro because that’s risible.
December 17, 2009, 5:55 amleo marvin says:
Once you imagine an equivalence between urging a boycott and killing a hundred million people more or less, the dissonance of intermingling “Nazi” and “Communist” hardly seems worth mentioning.
December 17, 2009, 6:07 amleo marvin says:
OJ was never convicted of murder. In fact he was acquitted. Would it bother you if I said I think he did it anyway, and encouraged people not to associate with him?
December 17, 2009, 6:11 amTweets that mention The Volokh Conspiracy » Blog Archive » Boycotting Yoo -- Topsy.com says:
[...] This post was mentioned on Twitter by PostRank – Law, Eugene Volokh. Eugene Volokh said: Boycotting Yoo: The San Francisco Chronicle reports the National Lawyers Guild and several Berkeley student or.. http://bit.ly/7DGp67 [...]
December 17, 2009, 6:28 amraoul says:
Looks like an easy A. The easiest way tor faculty member to ingriate himself with the student body is to be an easy grader. This course will be filled for the next 5 years.
December 17, 2009, 8:23 amRodger Lodger says:
Anybody out there recall one Fred Fisher? Just askin’
December 17, 2009, 8:43 amKevin P. says:
The answer is Yes. Politics is personal for the left.
December 17, 2009, 8:59 amJoe T. Guest says:
This is the same National Lawyer’s Guild that has historically functioned as the litigating arm of the Communist Party USA, right? The folks sworn to overthrow the U.S. Government?
I just want to make sure it’s the right group I’m thinking of so I know what level of credence to give their charges of unethical, illegal and immoral behavior.
December 17, 2009, 9:15 amEric Rasmusen says:
The post does raise a good question. To think about it, it’s helpful to keep a balancing hypo in your mind. Suppose the state government attorney were going to co-teach a course with Bill Clinton. I know that I myself would think badly of Bush elder for making non-official public appearances with Clinton). What kind of social pressure is appropriate?
A petition asking him not to co-teach is pretty mild. I can’t see any objection. It’s the logical corollary of all the bad things (ridiculous though they are) the same people say about Professor Yoo.
If the groups were to threaten not to hire any student who has taken the course, that would be a tougher policy to evaluate.
It’s interesting,though, that conservative groups don’t seem to do this kind of thing. Our own Dawn Johnsen here IU Law School would never be boycotted like that.
December 17, 2009, 9:18 amgeokstr says:
That’s because the Church of Leftism is what has replaced religion in the lives of the far left. That’s where the foaming pathological hatred of all things Bush/Cheney/Rove/Palin/Yoo et al, comes from. It is believed with the kind of zeal that would make KSM approve.
There is no such thing as simply disagreeing with such fervently held beliefs for leftists. It is akin to heresy, and their reaction closely mirrors that of the radical Muslims when they are “offended” by pretty much everything that doesn’t fawn to Allah. If the left wasn’t in control right now, I think you’d see roving bands of radical “youths” burning the cars of Yoo and other opponents.
If you look at Yoo’s “crimes” as analagous to printing a few cartoons of Allah, it all makes so much more sense.
December 17, 2009, 9:28 amJames T. Carrington says:
He’s covering the broad spectrum of strawmen.
December 17, 2009, 9:29 amtherut says:
The National Lawyers Guild(HA!!). Didn’t one of their well known commie lawyers end up in jail for helping a terrorist????
December 17, 2009, 9:59 amJames T. Carrington says:
I just wanted to thank you again for all of the hysterics over the years. They have provided a wonderful sense of perspective where students protesting a controversial professor and fundamentalists chopping off heads or youths rioting in the streets can all share the same tiny space in this world.
I feel now that my narrow mind is almost closed to the bleatings of your Goldstein-isms and I can love my big bro with all of my bleeding heart. Again, I thank you.
December 17, 2009, 10:11 amkrs says:
This is ridiculous. I don’t know whether Yoo deserves to be punished, but if every class he teaches is a stick in the eye to the whiny hippies who write these sorts of things, so much the better.
I’m inclined to think that Yoo gave his best advice in good faith and that it’s a thankless but necessary job to do that when the president wants to know where the line is. As others have documented, that advice was probably wrong, and there were some issues with the process leading up to the memos, but the people behind this protest campaign don’t seem to be interested in any of that.
I understand that this is not much different from the standard form of protest where people who don’t like what a television station does try to pressure its sponsors. But I don’t have a lot of respect for the people who seem determined to harass Yoo to his grave.
December 17, 2009, 10:29 amPatHMV says:
Outcast unclean! Outcast unclean! Shun him, shun him!
December 17, 2009, 10:32 amWidmerpool says:
“Goldstein-isms”–nice touch, that. Let me help you with another code-term neologism. Next time, instead of referring to the dreaded “neo-cons,” call them instead the “neo-kahns.”
December 17, 2009, 10:32 amwws says:
And in that light, Widmerpool, it would make the process so much easier if everyone who wasn’t part of the left was forced to wear a big yellow star of David pinned to their clothes, so that the ideologically pure people would know which sub-humans they should avoid associating with.
December 17, 2009, 10:37 amBlue says:
So to the left:
Doing anything to free an obviously guilty criminal is fine, laudable actually (e.g., Shapiro and OJ) while simply giving legal advice–on request–to a President is reason for ostracism?
Please.
December 17, 2009, 10:40 amJames T. Carrington says:
I prefer McCarthyist myself, but I like the Mongolian / Trekkie angle there! “Podhoretzzzzzzz!!!”
December 17, 2009, 10:41 amMark Field says:
No, there’s a very important distinction here: if Yoo did as you presumed, he’d be guilty of a crime. A very serious crime.
December 17, 2009, 10:45 amSteve P. says:
a) Who is lauding “doing anything to free an obviously guilty person”?
December 17, 2009, 11:03 amb) If you give legal advice, are you culpable if that legal advice is wrong, and arguably given in bad faith?
PatHMV says:
Mr. Carrillo, are you now teaching, or have you ever taught, a seminar with John Yoo?
If George W. Bush wants to sue John Yoo for malpractice, fine. But it was the President who asked for the advice, and it was the President who decided to act on that advice. But the whackjobs who are hounding Yoo know that they can’t actually reach President Bush because the nation would not generally stand for that, so they are instead cowardly trying to attack somebody else, as a proxy for President Bush.
December 17, 2009, 11:35 amDotar Sojat says:
Maybe the KSM defense can put Yoo on trial when they put Bush and Cheney on trial.
December 17, 2009, 12:00 pmfishbane says:
The goal, of course, is to make John Yoo such a “leper” as to effectively make it impossible for him to continue in his career as a law professor.
Well, yes. This is a normal, customary thing to do with craven, dishonest people. If you don’t believe that Yoo is craven and dishonest you are, of course, entirely free to continue to associate with him. And other people are entirely free to make up their own minds about what that says about your judgement. That’s the way things work.
PatHMV: If George W. Bush wants to sue John Yoo for malpractice, fine. But it was the President who asked for the advice, and it was the President who decided to act on that advice. But the whackjobs who are hounding Yoo know that they can’t actually reach President Bush because the nation would not generally stand for that, so they are instead cowardly trying to attack somebody else, as a proxy for President Bush.
If I’m not mistaken, the president is not actually the client in this relationship, and you’re using that incorrect notion to launch a bad-faith argument to distract from the fact that Yoo offered terrifically bad advice that ended up resulting in people being tortured. Perhaps that is fine with you, and you’re free to go teach a class with him. To my eye, Yoo, Bush and Cheney are all just as culpable as England is; that some people are sufficiently powerful to evade justice doesn’t reduce that culpability. Again: perhaps you are fine living in a country where Obama has the power to order the torture of people not convicted of any crime; others such as myself differ, and do pass judgement on those who associate with people who support such a notion.
And random, but
“Podhoretzzzzzzz!!!”
That was really funny.
December 17, 2009, 12:03 pmMark Field says:
The president is not OLC’s client, any more than he is the White House counsel’s (ask Bill Clinton).
Now, if your point is that the president is the captain of the ship and therefore responsible for what his minions do, I agree. But just as in the case of any business organization, the ultimate responsibility of the Board doesn’t remove that of those who commit crimes under them.
December 17, 2009, 12:06 pmMichelle Dulak Thomson says:
Am I the only one whose first reaction to this news item was that a course on “Constitutional Design and the California Constitution” is something I would sign up for in a heartbeat pretty much whoever was teaching it? Talk about an urgently necessary discussion . . .
December 17, 2009, 12:38 pmArthurKirkland says:
)
If I recall correctly, the Department of Justice began to withdraw the memoranda with which John Yoo was associated more than five years ago. So much for blaming the “following administration” — Yoo’s legal product didn’t even survive until the second Bush term.
Yoo’s failure to acknowledge his misconduct intensifies the case against fitness
to teach law students. He should resign. He also should have a chance to defend his positions in court, in a bar proceeding and any other relevant forum. Those who claim he is being persecuted ignore the point that, unless I am missing something, he has never been held accountable for his conduct, and has never volunteered to be held to account.
Yoo strikes me as a coward As do most torturers.
December 17, 2009, 1:00 pmConnecticut Lawyer says:
I’d like to know the names of the law students who signed the petition so I can make sure they never work for me or my company or any law firm that I employ.
December 17, 2009, 1:01 pmThe Watcher says:
The Watcher recalls La Raza’s motto. “For those in the Race, everything. For those outside the Race, nothing.”
Perhaps Yoo is not in the Race?
December 17, 2009, 1:02 pmRealistLiberal says:
Steve~
Not to nitpick but you do realize that Stevens was prosecuted by the Bush justice department right? And it was the US Attorney appointed by Bush and retained by Obama that eventually dropped the case (it appears that Obama had little if any role in that so I’m not saying he came in and did the right thing, rather that this example as NOTHING to do with Obama, good or bad.)
December 17, 2009, 1:23 pmSarcastro says:
Sarcastro recalls Hitler: “I am all about blonde Germans.”
Perhaps Yoo isn’t Aryan?
December 17, 2009, 1:33 pmlgm says:
The Watcher needs more a more nuanced understanding of Spanish, particularly regarding false cognates.
December 17, 2009, 1:57 pmArthurKirkland says:
Boycotting students for expressing disapproval concerning a discredited professor.
Priceless.
December 17, 2009, 2:03 pmParatrooperJJ says:
That’s actually an accurate translation of the motto. Both in words and in spirit.
December 17, 2009, 2:08 pmleo marvin says:
All said without a hint of irony.
December 17, 2009, 2:14 pmleo marvin says:
Straw men aside (i.e., defense lawyers can’t do “anything,” and Yoo isn’t being accused of “simply giving legal advice”), but yes, what would be permissible for a defense lawyer is not for one at OLC.
December 17, 2009, 2:15 pmDotar Sojat says:
One might consider the students who signed the petition to be boorish jerks, and not want them in the office next door or around every day. So?
December 17, 2009, 2:16 pmleo marvin says:
As was Siegelman. I assume Steve’s comment was sarcastic.
December 17, 2009, 2:18 pmKevin P. says:
What crime exactly? Can you point to a statute?
December 17, 2009, 2:29 pmjiffy says:
I’m amazed that someone less than a year old is able to negotiate the Internet so well.
December 17, 2009, 2:35 pmConnecticut Lawyer says:
AK,
What’s sauce for the goose, etc. etc.
December 17, 2009, 2:49 pmrb1971 says:
My view is that this is the most politicized Justice Department of our lifetimes.
You were born after the middle of January 2009?
December 17, 2009, 2:59 pmRyan Waxx says:
The primary complaint the left has with McCarthyite tactics is that McCarthy was using them against their people. This is evidenced by the fact that such tactics are normal and accepted nowadays when applied to the “correct” groups and people.
December 17, 2009, 3:39 pmConnecticut Lawyer says:
I wouldn’t say this is most politicized DOJ of recent decades. Rather, it’s quite typical. Esentially all AGs are political and for the most part, the DOJ dances to their tune. (The only completely non-political AG of the past 100 years was Ford’s AG, Dean Levi.) The primary job of the AG is to protect the president and his secondary job is to use the limited resources of the department to promote the president’s political objectives. Holder is no worse and certainly no better than most in this regard, about on a par with Reno, Meese, Gonzales. Mukasey was a step up, but wasn’t typical by any stretch.
December 17, 2009, 4:01 pmMark Field says:
Let’s start with the assumptions VG made:
“Let’s take as a fact that Yoo:
1. Gave bad advice or made poor arguments repudiated by the justice dept. (in the following administration) and by the majority of academia.
2. Did not make those arguments in good faith and instead as a means to achieve the administration’s goals.”
In context, the “administration’s goals” were to torture prisoners and/or to treat them cruelly and inhumanely. If Yoo made bad faith arguments for the purpose of enabling this conduct, he’s part of a conspiracy to commit a war crime (18 USC 2441).
December 17, 2009, 4:08 pmConnecticut Lawyer says:
To clarify, what I mean by promoting the president’s political objectives is that the AG uses the departments resources to pursue causes that the president (and his supporters) thinks is important versus causes that the president doesn’t care so much about. I don’t mean that the DOJ is used to put the president’s enemies in jail. No president has done that, despite a lot of hyperventilating on the left about claims that Bush did. What happened is that Bush’s AG went after child pornographers, and not so much after claims that minority voters were “diluted.” Similarly, Obama’s AG is ignoring child pornographers and forcing cities to adopt proportional representation. It’s all politics.
December 17, 2009, 4:10 pmJoe T. Guest says:
So Mark – when OLC reverses its position on something, as it has been known to do, it’s evidence that the earlier opinions were given in bad faith, or constitute evidence of a crime?
Interesting. You learn a new thing about lawyering every day I guess.
December 17, 2009, 4:41 pmRyan Waxx says:
Given that the AG is part of the president’s administration, I don’t find Obama’s AG’s concentrating on certain cases but not others objectionable. I do think that their dropping some cases where there appeared to be clear wrongdoing involved can be criticized, however. And it’s certainly legitimate for Obama’s critics to try and shame him into taking up certain cases where someone who contributed to his election appears to have committed a crime.
December 17, 2009, 4:45 pmArrowSmith says:
1. BOOOOOOOOOOOOOSH
2. 23/24 spots filled
3. Free market is working – libtards GOT PUNKED
Any questions?
BOOOOOOOOOOOOOOOOOOOSH
JEB IN 2012!!!
December 17, 2009, 5:29 pmVolokh Groupie says:
From the perspective of the administrations most virulent detractors. This argument has been hashed over and over again but the goals were not to torture or treat prisoners ‘cruelly and inhumanely’ and its embarrassing to frame it that way. The argument over whether such interrogative techniques ever rose to that level and specifically violate 18 USC 2441 is more germane and been beaten into the ground here with respect to arguments for and against. Additionally finding Yoo guilty of ‘conspiracy’ considering his role as a legal advisor drafting those memos is another leap in logic over what is in fact a very debatable argument.
There’s a fundamental disconnect between those who seem to intent on vilifying Yoo in academia and those who don’t agree with the position. The point isn’t which administration disagreed with his arguments. Clearly there were elements within both the Bush admin and Obama admin who did and do. The relevant issue isn’t that his ideas may have eventually been very unpopular, but how such unpopularity is automatically equated with ‘misconduct’ by those who disagree with him. With respect to his advice crossing the line into illegal, that position is at best arguable. With that in mind, the idea that proffering unpopular advice should suddenly be equated with ‘misconduct’ will inevitably extend to many more academics than I suspect you and others who disagree with Yoo are uncomfortable with.
And of course, the two parts that I held as facts in that hypothetical aren’t facts. Indeed, whether Yoo made those arguments in good faith or not is impossible to determine.
December 17, 2009, 5:48 pmRyan Waxx says:
The fundamental disconnect is that one side has lost the ability to reason without a truly incredible amount of question-begging. As such, discussion with them is pointless – you can’t argue with a person weather something constitutes misconduct when they’ve already progressed past that point and are discussing why you’re trying to excuse the misconduct they’re assuming.
It’s not an honest conversation, and you shouldn’t treat them as if they want one.
December 17, 2009, 6:01 pmSarcastro says:
Ryan Waxx makes a good point. Unlike most arguments over the internet, you will not convince these people. Therefore, you should assume them bad people and liars!
December 17, 2009, 6:40 pmRyan Waxx says:
Fine, Strawmano. Educate us on how you are supposed to have a conversation when neither of the parties are discussing the same question?
December 17, 2009, 6:49 pmMark Field says:
Nobody said this and AFAIK nobody thinks it’s true. The facts posited by VG included the assumption of bad faith.
If you start with the assumption that Yoo’s conclusions — that the planned treatment was not torture or inhumane — were reached in bad faith, and add the assumption that he was trying to carry out Administration goals in reaching that conclusion, it’s hard to see how else to frame it.
The fact is, the Administration did want to treat the detainees badly, as badly as it legally could, in order to get information from them. If — and this is all hypothetical based on your own post — Yoo gave bad faith advice in denying that the treatment was torture or inhumane, and did so for the purpose of achieving the Administration’s goals, then the only conclusion possible is that the Administration wanted him to reach that conclusion.
If you mean that all the evidence isn’t public yet, then I agree. If you mean we can never have metaphysical certainty about another’s intent, I agree on that too.
But if you mean the legal system doesn’t make judgments about intent, then that’s certainly wrong. It does so all the time, every day in fact.
December 17, 2009, 6:55 pmMichelle Dulak Thomson says:
lgm,
The Watcher needs more a more nuanced understanding of Spanish, particularly regarding false cognates.
Granted that “Raza” isn’t equivalent to “race.” But it means something, surely, and it’s difficult to “nuance” away the “todo” and the “nada.” “To those inside [black box], everything; to those outside [black box], nothing.”
I am open to correction; but I confess that that looks a tad exclusionary, whatever’s in the box.
December 17, 2009, 7:22 pmSteve P says:
Before you get to misconduct, you have to determine whether or not Yoo’s memos were correct on the law. Prof Kerr has had a number of posts on how surprisingly poorly reasoned, from a legal perspective, the memos are.
So is that the point you want to argue? That he was either
December 17, 2009, 8:10 pma) correct as a matter of law,
b) incorrect, but not intentionally, or
c) intentionally incorrect, but that doesn’t constitute misconduct?
Ryan Waxx says:
Psst.
Not agreeing with you doesn’t constitute misconduct. Nor does having Orin Kerr call your work “poorly reasoned”.
Pass it on.
December 17, 2009, 8:17 pmJagermeister says:
Do you have some evidence for that accusation – that the administration wanted to treat the detainees as “badly as it legally could”? Some proof that if OLC had said they could stick pins in their eyeballs, for example, that the administration would have replied, “Great, get the needles!”. Your assumption of facts betrays your prior decision to assume the worst of your opponents.
The actual facts were that the Administration wanted to get information from the detainees, and asked OLC what techniques could, and just as importantly, could NOT, be used to obtain the information. AFAIK, the techniques in question were suggested by the CIA (with Bill Clinton’s boy Tenet in charge). What Yoo tried to do was come up with a legal definition of “torture” that clearly said where the line was, with the DUAL goal of ruling out techniques that violated the law, as well as safeguarding those who applied techniques that did not violate the law.
December 17, 2009, 8:28 pmMark Field says:
You left out the conditional from my sentence: “in order to get information from them”. The public record on this point is pretty clear. The Administration wanted to get information and was prepared to use whatever it could in order to accomplish that. The fact that it left out pins in the eyeballs is merely the tribute vice pays to virtue — they couldn’t argue that wasn’t torture and keep a straight face.
1. I wasn’t the one making assumptions. I just took the assumptions from someone else and pointed out the consequences. In doing so I wasn’t getting to the merits at all (since it was based on assumptions, not established facts), but noting that the particular attempted defense of Yoo wasn’t very good.
2. I don’t need to assume the worst about the Bush Administration on this issue. Their own behavior condemned them far beyond my poor power to add or detract.
December 17, 2009, 10:03 pmMark Field says:
This may or may not be true factually. I personally doubt that it is true, but all the information isn’t public yet. However, it’s contrary to the facts VG offered to assume. As I said, I was following the logic of that assumption, not writing an indictment.
December 17, 2009, 10:06 pmrpt says:
You have the sequence of events backwards. It was torture first, legal rationalization after.
December 17, 2009, 10:27 pmJagermeister says:
Actually, Mark, that’s not the case. From your post:
VG’s assumptions which you listed were(a) bad advice, and (b) bad faith. You were the one who introduced the entirely spurious assumption that ““administration’s goals” were to torture prisoners and/or to treat them cruelly and inhumanely”, noticibly without any qualifying conditional of “obtaining information”. In this instance, I think you unintentionally betray a good part of your animus.
Even if Yoo was arguing in “bad faith” to enable the administration’s goals, it is you who have substituted the goal of “obtaining information” with your own interpretation of “torturing detainees”.
I have to ask at this point, to what end should Mr. Yoo wish to enable “tourturing detainees” as an end in itself? Unless Mr. Yoo held some personal grudge against the detainees (which seems unlikely), what would he gain by enabling torture? Which leads to the conclusion that Mr. Yoo was seeking to enable the goal of “obtaining information”, not enabling torture.
Both the IRC and the UN convention rely on language against “severe” pain or suffering (mental and/or physical), without any definition of what constitutes “severe”. To prove that Yoo enagaged in a bad faith effort would mean that he substituted his own (incorrect) definition of “severe” for the proper definition of severe. But the whole essence of the issue is that no defintion of “severe” existed.
Yoo’s detractors are alike to Justice Stewart: torture may be “hard to define”, but “I know it when I see it.”
The argument against Yoo flounders on two points: (a) inability to articulate a malicious motive for Yoo, and (b) lack of distinct standard for Yoo to have violated. An argument against Yoo only succeeds if one assume a priori that he is guilty.
December 17, 2009, 10:41 pmrpt says:
I think Steve’s point is that Holder has not (but should) act to release democrat Siegelman (and Richard Scrushy), victims of the worst USA’s around (Martin & Canary), but did drop the case against republican Stevens based on the prosecutorial misconduct. These are nonpartisan decisions.
December 17, 2009, 10:41 pmArthurKirkland says:
What . . . you’re suggesting the victims get a chance to torture Professor Yoo?
If you want to take it that far, you’ll make the trip without me.
December 17, 2009, 11:21 pmMark Field says:
You’re right, I did leave out the condition the first time. That was unintentional; I don’t believe the Bush Administration tortured for the fun of it. I do believe they did so to obtain information. I hereby correct my post to so state.
He enabled torture as a means to obtain information.
I should add that his ultimate goal is irrelevant. If someone is proved to have tortured, the reason for doing so doesn’t matter — there are no defenses to the crime. If Yoo enabled torture in bad faith — which was the assumption — then he’s part of the crime as well.
That’s exactly what he did.
This is false in any meaningful sense. There are many definitions of “severe”. Yoo picked the most preposterous one (from an unrelated health care benefits statute). He failed to consider prior cases holding specific techniques such as waterboarding to constitute torture. He failed to discuss cases which interpreted the word “torture” even though he listed those cases in an appendix. He failed to cite State Department regulations which implement the statutory definition of torture (22 CFR 95.1), nor any other State Department practices or policies regarding torture. He failed to cite any medical studies in support of his claims that the pain associated with, say, forced standing was not “severe”. He failed to consider the impact of the tortures taking place in tandem. He arbitrarily ruled out mental suffering by considering only the infliction of pain, despite the fact that the statue refers to both pain and “suffering”, and by arbitrarily interpreting the word “prolonged”. He ignored the “cruel and inhumane” standard, and failed to consider whether the acts violated laws other than torture. He argued for affirmative defenses to torture despite the fact that the US has officially taken the position that such defenses do not exist. He argued that the President has power to order torture without even citing the limits of presidential power under Youngstown.
As shown above, the evidence is very strong that Yoo’s memo was a sham. My personal opinion is that it was. That said, my opinion is NOT that Berkeley should fire Yoo. It is my opinion that the available evidence supports an investigation of Yoo by Berkeley, by the PA Bar, and by the relevant US attorneys.
December 18, 2009, 12:17 amRicardo says:
They were suggested by the CIA but originated from SERE instructors in the military. In turn, SERE learned and developed these techniques based on the accounts of American soldiers who were captured and tortured by various fascist and communist regimes the U.S. has previously been at war with. During the Bush Administration, SERE changed from being a purely instructional facility that trained American soldiers on how to survive torture while in the hands of the country’s enemies to also being a kind of torture consultancy to the intelligence community.
December 18, 2009, 1:14 amSarcastro says:
[Ryan Waxx, all I am saying is that just because someone thinks you are wrong and they are right doesn't mean you get to say they are arguing in bad faith.
Just as you are not going to be swayed from your position, yet argue in good faith, so too do they. Such is the internet.
Accusing the other side of bad faith is the usual "my view is not just right but virtuous so the other side must be evil" writ small. It adds nothing but vitriol.]
December 18, 2009, 1:42 amLeo Marvin says:
Aren’t you and I saying the same thing? Here what Steve said:
December 18, 2009, 7:18 amjukeboxgrad says:
mark:
I don’t believe they did so to obtain information (if by “information” we mean ‘intelligence that might be helpful in preventing future attacks’). I believe they did so in the hope of obtaining false confessions that would be used to sell the war. As pointed out by the Cato Institute:
False confessions (produced under torture) were indeed used to sell the war. See here, here, here and here. This has been summarized as follows:
And torturing KSM led to this: “total fucking bullshit:”
According to Soufani, Zubaydah was singing until the CIA started torturing. (See also pdf, p. 111 in Adobe Reader.) But if what we really wanted was false confessions to sell the war, rather than solid intel to stop the next attack, then switching from FBI interrogation to CIA torture was actually a rational strategy.
=================
rpt:
Indeed:
Doug Kmiec makes reference to this same idea: that the memos were “crafted in order to support preexisting policies and acts.” Kmiec also talks about how “within the administration the Iraq WMD claim was coming under serious challenge and the opinion was needed to help the President obtain coerced statements that would establish a link between Saddam and Al Qaeda.” In other words, the purpose of the torture was not to prevent the next attack. It was to produce false confessions that would help Bush sell the war.
Kmiec made the same point elsewhere:
Kmiec “himself was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush.” So his statements should carry some weight.
December 18, 2009, 2:10 pmBleh says:
Look in a mirror, troll.
December 18, 2009, 2:58 pmjukeboxgrad says:
Also worth noticing: the torture ended before the war began. This is something else that tends to create the impression that the purpose of the torture was to elicit false confessions for the purpose of selling the war.
December 18, 2009, 3:25 pmMark Field says:
jbg, there’s evidence that you’re right. I don’t want to believe it, so I’ve adopted an alternative which is, IMO, also consistent with the facts: that they tortured to obtain information, but when they got “information” instead, they weren’t discriminating in their use of that “information” and did, as you noted, use it dishonestly.
I haven’t ruled out your theory, though.
December 18, 2009, 3:39 pmjukeboxgrad says:
I don’t mean to oversimplify things. There wasn’t necessarily a single, monolithic motivation. There were multiple participants, and the motivations probably varied quite a bit.
I think it’s also possible that someone could have intentionally decided to torture specifically for the purpose of eliciting false confessions for the purpose of selling the war while also believing that this course was heroic, noble and patriotic. Such a person would just have to zealously believe in the overarching importance of having the war (i.e., the end justifies the means). It would also help a lot if they zealously believed in their own moral, cultural and religious superiority over the person they were torturing.
These kinds of zealotry were not hard to find, and are still not hard to find.
December 18, 2009, 4:13 pmJagermeister says:
Thank you to Mark and jbg for the reasoned and substantive replies. I especially appreciate the references.
Mark: I checked the USC reference you supplied and it seems to suffer from the same circular reasoning involving the undefined use of “severe”. Your other points regarding the narrowness of Yoo’s reasoning are more telling, and well taken. I should note at this point that I do not mean to argue that Yoo’s opinion was correct or well reasoned (I don’t think it was), but only that in the absence of Congressional clarification (which was requested, and never supplied) it was offered in what amounted to a legal vaccuum, and thus not self-evidently contradictory with established standards.
JBG: The accusations of Maj. Paul Burney, if true, are certainly damning. I searched for more on the accusations, but unfortunately most of the references are self-referential in the left-leaning blogosphere. I’m reluctant to accept such damning testimony without at least reading some rebuttal, but there doesn’t seem to be any rebuttal on the web, either because his accusations are true, and being avoided, or because he is too fringe for the “other side” to engage. Monolitic narratives make for poor sources, but it seems that’s all that is available regarding Maj. Burney’s claims at this time.
I will grant you that should such information as Maj. Burney claims proove true, that it goes a good ways towards providing the “mallicious motive” needed for a “bad faith” case against Yoo.
Anyway, I just wanted to acknowlege your (plural) cited and reasoned responses as a way of encouraging more of them on VC. Thanks.
December 18, 2009, 8:17 pmjukeboxgrad says:
jagermeister:
Thank you for this gracious feedback.
As Mark has already explained, that vacuum exists only in the imagination of Yoo and his defenders. For example, there’s a long history (pdf) of US courts treating waterboarding as a form of torture. We called it torture when the Japanese did it. We prosecuted them for doing so. Even when they used the same procedure we used.
Did you notice how many words Yoo spent reviewing that history and taking it into account? Here’s the exact tally: zero. There is no benign explanation for that omission. Likewise for a variety of other omissions.
I appreciate that you have at least attempted to review some of the evidence. I think that puts you ahead of a lot of people who share some of your views.
Burney’s statement appears in a report that was issued by the Senate Armed Services Committee. 25 Senators put their names on that report. If we tally Lieberman properly (i.e., as a Republican), 13 of the 25 were R. They had ample opportunity to condemn or reject what Burney said, but they didn’t. Instead, they agreed on this conclusion:
And I don’t think the “too fringe” explanation adds up. No one is “too fringe” to become a target for Limbaugh, O’Reilly, Hannity, Beck and the rest of the usual suspects. In fact, the more “fringe,” the better. They thrive on having a target to attack, someone who is “fringe” (either actually or allegedly). Is Burney (link, link), an Army Major, more “fringe” than Cindy Sheehan? Michael Moore? Ward Churchill? Bill Ayers? I don’t think so. Rush et al love to boost their ratings by attacking people like that.
Here’s why Rush et el have ignored Burney: because our corporate-owned media has ignored Burney (those darn liberals). If the press ever covered Burney, so would Rush et al. Malkin would be running a lengthy series based on her discovery that Burney’s third cousin was once seen wearing a Che Guevara t-shirt.
If you want to find a major newspaper giving Burney’s statement the coverage it deserves, you have to go to Australia.
There was one excellent review of this subject in WP (“Torturing for Propaganda Purposes”). That kind of work is why Froomkin was ultimately fired. And I think Burney has been mentioned in NYT once.
There is also a detailed review in Salon:
Other than that, Burney, and the report which quoted him (along with lots of related evidence), have been largely ignored.
December 18, 2009, 10:29 pm