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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Well, at least the perpetrator of this quote won't be accused of being post-modern, since academics and ideology are, it would appear, unrelated in his mind.
Remember when great law schools used to teach critical thinking skills?
So there's an idelogical litmus test? And the most radical 10% of the students will set the standard? If so our educational system needs an enema.
We're paying for liberal teachers, dammit!
My further view is this: We, as lawyers are not obligated to live near the ethical floor of what our ethics rules allow; just because we can do something doesn't mean that we should. Mr. Delahunty has likely been handsomely rewarded by his employers for his "legally untenable" memos; let him now pay the price for his legally falacious advocacy of the mistreatment of other human beings.
This isn't on the same level as conservatives being rejected by ideological faculty--this is revulsion by the populace. I doubt you could get 100 signatures on a petition to hire him.
I wonder why the students went after his ideology instead. Of especial note is the fact that the students (and some commenters) seem to think it's entirely appropriate to deny employment based on ideology. I'm sure there's a cogent remark about blacklisting and McCarthyist intimidation in here somewhere, but Democrats are better at that type of claim, so I'll leave it to them.
These protesters forget that taking prisoners is a massive excercise of generosity. Anyone captured under arms and out of uniform can be summarily executed as an illegal combatant. The US should be quickly interrogating people and then giving them their Geneva Convention approved punishment.
Of course these are the same people that used the execution of a Communist spy as evidence of the cruelty and immorality of the United States and the Republic of South Vietnam. They are nothing but traitors and should be given nothing but a traitors reward. End the Fifth Column, NOW!
I apologize that this became so long but here goes:
Being that I am three weeks away from exams, I should not be commenting on Delahunty’s memo, but I will… I should start off my saying that I have worked directly for an International Human Rights Scholar/Advocate and personally think it, at the very least, awful policy not to provide Geneva Protection to AQ/Taliban. However, I also respect the need for fair evaluation of the memo. The memo did not say that the president ought to torture AQ/Taliban combatants, it did not say that the combatants ought to be treated inhumanly, nor did the memo even state that the combatants should be treated contrary to the Geneva Conventions. The memo merely stated:
Now as much as I hate to agree with Yoo/Delahunty, I think their interpretation correct. I think as a matter of policy the president must extend these protections to the combatants; however, I am not sure that they are, as a matter of law, entitled to these protections. I think as a matter of law they ought to be entitled to protections—but, this is a defect in the treaty, not in the application of it.
Looking at the historical context of the Geneva Conventions, I think the memo is correct in stating that the Conventions were meant to protect (1)those engaged in international conflict between contracting states and (2) those engaged in a Civil War within a Contracting state.
It is true that no one in 1949 imagined the type of conflict that which we are now engaged; however, this does not rationalize the view that the protections of the Conventions apply. I disagree with the memo in that I believe Customary International Law ought to apply—however, I do not believe that a treaty ratified in order to protect contracting states applies to a non-state actor engaged in hostilities. It is true that the Convention may apply to non-contracting parties; however, this provision is applicable only in specific outlined instances: specifically, when the non-contracting party agrees to follow the stipulations of the Conventions. That is to say that if the Taliban were to say we accept and agree to follow the requirements of one or all of the Conventions, then the United States would be required, as a matter of law, to extend the same protections. The Geneva Conventions were not set up to limit the actions of certain states whilst allowing others the right to exercise these actions. The Conventions were set up so as to “level the playing field” in order to protect life.
That is to say the purpose of the Conventions was not to say Party X you ratified the Conventions; there fore you cannot do A,B, or C. However, Party Y you did not ratify the Conventions; therefore you can do A,B and C. Rather the purpose was an agreement Between party X that they would not exercise action A if party Y agreed not to exercise action A, and vice-versa. This was a Hobbesian social contract of sorts. To claim that the United States, as a matter of law, was required to grant the Geneva protections, whilst at the same time forcing the US to suffer the harm caused by the opposition’s complete disregard for, (if not purposeful violation of) the Conventions is an absurd interpretation of the Treaties.
That being said, I believe it equally absurd that the US in an effort to bring “freedom, justice, liberty, etc.” to the Middle East would do so in a matter exhibiting none of these principles. I cannot fathom how one can in effect bring freedom and justice to people without exhibiting the highest regard for any International standard of Human Rights protection. We cannot say we are going to root out these anti-freedom fundamentalists and install a just government when we deny people any of the fundamental rights endowed in all. The president should have, as a matter of policy, followed the Geneva Conventions.
I think the major point of contention with the memo should not be the memo’s views towards the Conventions; but, the issue should be with the memo’s view of Customary International Law. The CIL should apply blindly to everyone, without regard to nationality, state/non-state actor, etc. Furthermore, many of the “violations” of the Conventions were Constitutional Violations. Though the Conventions do not apply to these actors, the wording of the relevant amendments apply to people: not citizens, not residents; but to all people.
The memo’s complete lack of attention to this I believe is also a fair indicator that the memos are very troubling. The fact that people are ignoring these latter points in order to jump on the Geneva point I think is debilitating to the arguments put forth by the detractors. The Geneva point I think easily explained away—the others are not as easy for supporters to defend against. Why rest your argument on the weakest of all arguments?
As an aside, I think my statements regarding the Conventions are evidence that something may need to be done in order to change the formulation of International Humanitarian Law in order to outline the correct course of action in dealing with transnational non-state actors. Merely wanting the Conventions to apply does not magically make them apply.
The memo can be found here:
Sorry this was so long…
This constitutes being implicated in a war crime apparently. Good grief.
You mean the legally falacious argument that four Supreme Court Justices approved of? That legally falacious argument?
I don't think the math department of a famous university should hire this "renowned" mathematician, nor should Mich hire this guy.
Of course, math has a right and wrong. So did this guy get it wrong (in the way of a 1L who doesn't understand what he's reading) or did he push a theory that was unpopular. If it's the 2nd, I must agree with Malor above me.
It's up to the school to make that choice.
I am testing that idea that there might be a point indeed where uncoerced *actions* (though doubtless made in connection with beliefs and ideas) might legitimately factor in to an individual academic employer's decision to hire. I am sorry that I wrote ambiguously--I meant to put the focus on voluntary actions, not just ideas, with my example of Heidegger. Heidegger's life is in fact an example of actively bringing into being ugly and deeply illiberal positions (indeed extending to helping remove other university professors for their beliefs that contradicted the orthodoxy of the Third Reich). Even said actions would have to be odious in the extreme for me to entertain this idea (I'm a strong supporter of the ACLU), but is it so crazy? What if the professor in question had not just written legally dubious memos, but actively participated in interrogation techniques/torture that the memos authorize? What then?
(Expecting a "if the comparison fits" comment in three... two... one...)
(Expecting a "if the comparison fits" comment in three... two... one...)"
My point, at any rate, was that the comparison does *not* fit this case, but that Heidegger's life illustrates that there *might* be a point where an academics's (nonacademic/political) actions could make legitimate the refusal to hire. To be clear(er), I do not think John Yoo, David Addington, etc. are Nazis. I do wonder whether the people that supported the investigation and discipline of Ward Churchill (for what was genuine academic dishonesty, but only triggered by his ridiculous statements) would also support, in principle, bringing up OLC members' conduct (if not speech) in making hiring, tenure, etc. decisions. If not, are their views intellectually honest?
I also seem to recall that this interpretation was challenged by people who favored "asymmetric" warfare in places that were trying to fight off various colonial powers. People who idealized guerillas and insurgents wanted to provide the same protections for these people that were provided for armies that fought according to the established rules of war. This is about where my international law runs out, so I'll leave this as a question -- is human rights protection for guerillas and insurgents who do not follow the laws of war themselves now a part of customary internation law? I know it isn't part of the treaties themselves.
That said, the thing that bothers me about the whole situation is not that something vile (up to and including secret execution) might happen to known al Qaeda members in US custody. I truly don't care if it does. What bothers me is that there is no transparent way of sorting out who falls into this "I don't care" category and who does not. That's the best argument I can see for extending protection to people who are not entitled to it and do not deserve it.
I will put that to the test tomorrow during lunch.
At some point Humanitarian Law and Human Rights Law has to converge. Now, whether we want to use (new) treaties, custom, or rely on our Constitutional mandates, I don't think matters. But, I think we can all agree that there is some point at which the government goes too far--whether Geneva applies or not.
I would be inclined to be nicer to the rank-and-file, though. At least some of them may be participating due to fear, coercion, or a misinterpretation of the situation, and benevolence there might actually do some good. But the idea is that it IS benevolence, and something people should appreciate rather than demanding as a right.
Arguably, Justice Thomas agreed with these arguments. You're going to have a great deal of trouble counting to four, though. The dissent in Hamdan was premised upon the jurisdiction-stripping provision of the Detainee Treatment Act, which didn't even exist at the time the memo was written.
The memo is so one-sided and such poor legal analysis that Professors Yoo and Delahunty are either incompetent or authored it in bad faith, the result of which was legal justification for torture and actual torture -- either way, given their status as OLC attorneys, that arguably makes them war criminals (and this argument would be stronger than the one put forth in the memo).
http://www.mndaily.com/articles/2006/11/28/70055
Correction
This article incorrectly quoted Jon Taylor. He said "it doesn’t have anything to do with ideology." Taylor said he questioned Delahunty’s ethics.
The reporter actually had a recording of his statement, went back and listened to it, and realized she had misquoted him. It is interesting that people may hear what they want to hear.
A willingness to make excuses for torture is a sign of moral bankruptcy.
But the lawyer didn't stop there. The lawyer advised the client that exercising that right would be morally wrong and that the client should not discriminate.
If Delahunty worked to justify torture and took no steps to try to stop it, he should be shunned.
Remember, part of why Republicans lost Congress is that they lost their moral compass. Anything that increased their power was accepted. Delahunty's supporters should remember that.
I agree that the lack of comment on these issues was troubling (see my first post. But, I am not convinced that he worked to "justify torture." The question was not "can we torture guys on the battle field."
As an aside, why is everyone suggesting he doesn't know the purpose of a memo? He didn't write a predictive memo--how do we know he wasn't asked to provide a persuasive memo? Are we sure that no one in OLC wrote a memo arguing the opposite side, a memo that was just kept "more secret" because of it leaked it'd cause major problems to the president? I'm not sure that it is likely--most likely it is not likely-- but isn't it at least plausible that someone in OLC wrote a memo saying the Conventions apply and someone else wrote the opposing view? Sure the question is obvious: If that is the case, why didn't the other memo see the light of day.
I think the tone expressed in the Department of State's response memo suggests that there wasn't a thought-out plan in advance that one group was going to marshall all the arguments for one side and then another group would come up with all the arguments for the other side.
If that were the plan, it would be rather strange, wouldn't it? Why would OLC (DOJ) rely on DOS to present the other side? And why would the DOS memo be so sharply worded if the assumption going in was that it was going to be a "paper debate"?
This makes me think about the Detainee Treatment Act in Pub. L. 109-148, section 1004(a), to be codified at 42 U.S.C. 2000dd-1
So perhaps separating the arguments from the counterarguments into separate memos, and only providing the one-sided arguments to the officers responsible for implementing the executive's orders, was a means of providing them with legal cover?
As I said, I thought that view unlikely. But, it was perhaps worth mentioning in passing?
My point was that even if it was a "paper debate" planned out in advance, that doesn't necessarily excuse the content of the memo if the entire exercise was designed to create a document that could later be relied upon in a defense of "good faith reliance on the advice of legal counsel" -- the memo doesn't clearly spell out that it is only marshalling the arguments for one side and that for a full understanding of the legal issue, a person should consider, for example, the arguments presented by the DOS. So even if an official reasonably believes in good faith that the document is a predictive memorandum, the context in which that memorandum was created and subsequently shared with those officials is suspect.
The Primary purpose of the GC as I see it was to put in place a set of legal structures that encourage warring parties to so the things like wear uniforms, carry weapons openly, separate military emplacements from civilians, avoid targeting civilians, obey a formal chain of command etc. The benefit of these acts would be that their soldiers, when captured, would be treated IAW the GC.
Secondary result was I treat your guys under the GC, you treat mine the same way.
As AC rightly said, under the historical common laws of war, we would be within our rights to conduct summary courts and executions of AQ or other illegal combatants found under arms on the battlefield.
It is the impact on public opinion that prevents us from doing that, not the GC. we don't get much credit for our humane behavior.
I think the ethics issue is mere pretext, and I would like some evidence that this opposition action is driven by something more.
I am a lowly 3L and I have not yet been convinced of any ethical breach. Have any bar associations responded to Amnesty's call for investigation?
Any petition that I sign will not state any conclusions about Delahunty's ethics. It will merely state that viewpoint diversity is important and that we express confidence in our Deans' qualifications and ability to make this temporary placement.