Via How Appealing comes news that Jose Padilla is suing John Yoo. A press release announcing the suit declares:
John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States.
The Chicago Tribune provides this additional background on the suit, and How Appealing has posted the complaint here. The complaint only seeks nominal damages and a declaration that Yoo authorized illegal and/or unconstitutional detention policies. Even so, I would be surprised were this suit to get all that far.
As much as I would like to see Yoo tried criminally for war crimes, this is a good start.
Who is paying for this lawsuit? Does anyone know?
I haven't yet read the complaint, but according to the post, Padilla is suing Yoo over the legal advice Yoo gave his superiors at the DOJ. He's not claiming Yoo tortured anyone. Nor is he claiming Yoo advocated or advised the use of torture. He's arguing that Yoo provided faulty legal advice. Immunity should certainly attach to giving legal advice within the executive branch. (Again, I have not read the complaint, so my analysis depends upon the assumptions stated above. If, in fact, Padilla alleges that Yoo was the torturer, that allegation would change my views substantially).
Yoo has no power to authorize any policies. He was a lawyer giving a written legal opinion. How is it possible for him to be sued for something he had no power over?
Didn't work for the Nazi lawyers, don't see why it should work for Yoo -- unless we're now going to dismiss Nuremberg as "victors' justice."
The complaint is even better than you imagine. Of the four documents cited as Yoo violating Padilla's rights, only ONE appeared under Yoo's own signature; the rest were signed by Bybee.
Was Yoo's advice wrong in the law or was it wrong in your opinion?
Was there something wrong with Yoo's reasoning, etc or is it you just don't like his conclusion?
A lawsuit is not the proper place for disagreements over what the law is. Unless the lawsuit is about how Yoo was negalgent(sp) in his work, almost impossible to show.
Wrong in law. He ignored the existing statutory definition of torture and the International Convention against Torture. And once the memos were leaked the administration quickly repudiated them.
Of course Rumsfeld and Stephen Cambone should also be sued.
Forgetting to discuss Youngstown in a treatment of executive war powers &their limitation by legislative enactment?
You say "almost impossible," I say "childishly easy." In fact, why settle for "negligent"? Willful, wanton, or intentional ...
ALS does have a good point -- Yoo is believed to have penned the Bybee memos, but Bybee should be a named defendant.
Well, of course. Padilla winning the suit would be victor's justice too, given that in our legal system the terrorists have clearly been the victors (which shouldn't be surprising since they have lots of high priced legal talent helping them win).
On a separate note, I would hate to have a system where giving legal advice is a crime or even a tort (other than being sued by your client for being negligent in the advice you gave).
War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property.
Mutatis mutandis, that's close enough for gov't work.
(N.b. also that the Wiki article is far from a detailed treatment of the Judges' Trial cases -- it's just handy.)
Bad Legal Advice
and
OLC Ethics
Also, nobody denies that Yoo wrote the memos signed by Bybee. Otherwise Bybee never would have been confirmed to the Ninth Circuit.
given that in our legal system the terrorists have clearly been the victors
Um, in what alternate universe is that a true statement? Who are these legally-victorious terrorists?
I want to make sure I understand your reasoning. Let's say a small county in the south wants to add a franchise obstacle. Because it is covered by the VRA, it petitions the DOJ for approval. The DOJ attorney tasked with the legal research gets the law wrong. Relying on his research, his superiors approve the change, and some voters are thereby turned away from the polls on election day. Should the lawyer be subject to civil liability?
The totality of the past several hundred years of Anglo-American jurisprudence would seem to stand for the opposite proposition.
However, the very importance of the OLC's opinions makes it particularly undesirable, as a matter of public policy, that *absolute* immunity be granted. If the legal advice offered is demonstrably not in good faith -- and I might even entertain a "clear and convincing" burden of proof here -- then the public certainly has an interest in seeing such lawyers punished, and OLC lawyers certainly need to be aware of such possible sanctions when they're drafting their memos.
As anyone who's read the memos can attest, the utter lack of lawyerly CYA -- the disregard of contrary authority -- the sheer amateurism, in the product of a man who's supposedly a top-notch scholar -- clearly bespeak a desire to affirm a particular conclusion without any concession to the lawyer's duty to fully advise his client.
First the definition of torture
18 U.S.C. § 2340A (2000).
10
Section 2340 provides in full:
As used in this chapter—
(1) "torture" means an act committed by a person acting under color of law specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting
from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical
pain or suffering, or the administration or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" means the several States of the United States, die District of Columbia,
and the commonwealths, territories, and possessions of the United States,
Anyone who thinks the word severe above is well defined needs more experience on this blog. You was attempting to define it. You may disagree with his choice. But it is clear that his choice is within the compass of the word and not outside of it.
Anderson: Sorry that is not close enough for government work, certainly not for the judicial process. Yoo's action were not within the judicial process at all. His were advice on the law. He filed no suit. He came before no judge. He only wrote a memo to his boss. Nope, I would think even the worst of lawyers would have a hard time pushing that charge to apply to Yoo's work. If you disagree, please describe how what he did was "abuse of the judicial and penal process".
Remind me, once more, of Youngstown majority's holding?
While I agree that a diligent lawyer would likely drop a footnote to the commonly cited passages from Jackson's concurrence, an attorney could reasonably neglect to cite a case as fragmented, aged, and fact-specific as Youngstown.
There clearly is no immunity- should a attorney be immune for assisting in an illegal act? Attorneys get burned for creating illegal tax shelters for their clients.
Should that lawyer be subject to civil liability? Why the heck not?
Pooh. Look in any con-law textbook. Youngstown is a problematic precedent, but it's what we've got, and it's where you go to discuss these issues. Distinguish it, limit it, whatever, but you can't *ignore* it. Certainly, the Supreme Court hasn't. And that certainly includes Jackson's concurrence.
So if any lawyer gives advice that a liberal doesn't like, because the liberal is harmed by that advice, he can sue. Right?
Lawyers usually support making everything actionable. Would you also hate a system where giving medical advice is a tort? What about engineering advice? Certainly giving reasonable advice is not a tort, even if there may be disagreement about the "true" state of affairs. Reasonable doctors may disagree on the prognosis or best treatment of a patient, and the one who turned out to be wrong shouldn't be sued for it (but tell the lawyers!). On the other hand, giving clearly wrong legal advice to a client should make you at least somewhat culpable for their resulting conduct.
As others noticed, it's odd to sue Yoo for giving bad advice without filing suit against the people who acted on his advice. Can he argue that essential parties have not been joined?
The difference is one of duty. If you hire a doctor, or engineer, or lawyer to render advice to you, you are paying for his expertise, and he is liable to you for damages. It's much more problematic to grant a third party standing to sue any of the above. Off the cuff, where standing is found in those cases, it tends to be either (i) standing-in-the-shoes of the person to whom a duty was owed, e.g. wrongful death, or (ii) a known third party beneficiary, e.g. engineering of a building. I do realize that their are counterarguments, but I find it highly problematic for a citizen to have standing to sue over advice rendered to the President. Moreover, as Anderson pointed out, the caselaw in this area - the power of Congress to regulate the conduct of the President as such - is fairly thin; I would also point out the still-unresolved legality of the War Powers Resolution 30 years after its passage. On the merits, one would have a hard time asserting that ANY advice was negligent.
I started mentally drafting a response to Lior's question and you did it for me. Thank you. You did a better job than I could have.
The problem for plaintiffs, I have just decided on Prof. Kerr's parallel thread, is that the "essential parties" are difficult to get past the qualified-immunity stage with.
If they can depose Yoo and get him to say "basically, I was told to justify torturing these people", then it might become a whole lot easier to add whoever told him that.
Tony's otherwise excellent suggestion, which I take to be for a Bivens action, perhaps founders on the causation issue that Prof. Kerr identifies. That's why I suspect this suit is about getting to Yoo's superiors.
I think that argument would probably garner 5 votes on the high Court, which is not quite the same as saying I agree with it.
For the policy reasons I've cited, I think an OLC lawyer *should* be subject to sanction for grossly negligent legal advice. I am open to the argument that a civil action isn't the proper sanction, but what else is there?
wm13, you are too smart to believe anything that dumb. 9-0 cases get decided all the time in the Supreme Court - that does not make them frivolous, or their lawyers incompetent.
If you're going to call a resolved lawsuit "frivolous," then please point to the court order deeming it such and imposing sanctions on the frivolous party. Otherwise, please don't debase a term of art.
The second part of the memo discusses whether the ICC, to which the US is not a party, would have jurisdiction and be able to impose it's own definition of torture on the US. I'd say it is a non-controversial position that the ICC does not have jurisdiction because Presidents Clinton, Bush and the collective wisdom of the US Senate insured that would be the case.
Yes, I'm sure that's exactly what's going on. Just one step beyond what tripped up Tom DeLay, "the criminalization of politics," no?
He or she can be fired.
Beat me to it. If someone does bad work, he can be warned, written up, demoted, or even fired. His employer can refuse to recommend him to prospective employers.
Furthermore, urging the President to violate the Supreme Law of the Land (Convention Against Torture, Art VI) is fundamentally contrary to the Constitution and the entire basis of our polity.
So is buttfucking.
As silly as the whole thing was, I don't think there was an epic crisis of Farsi/Arabic Translator ejections.
For some reader followup.
http://www.opinionjournal.com/best/?id=110010466#tongues
http://www.opinionjournal.com/best/?id=110010471
Though payday lending is primarily regulated at the state level, the United States Congress passed a law in October 2006 that caps lending to military personnel at 36% APR. The Defense Department called payday lending practices "predatory", and military officers cited concerns that payday lending exacerbated soldiers' financial challenges, jeopardized security clearances, and even interfered with deployment schedules to Iraq.
Some federal banking regulators and legislators seek to restrict or prohibit the [url=http://paydayloan.fatfreehost.com]loans[/url] not just for military personnel, but for all borrowers, because the high costs are viewed as an unnecessary financial drain on the lower and lower-middle class populations who are the primary borrowers.
Lenders say these loans are often the only option available to consumers with [url=http://paydayloan4me.fatfreehost.com]bad credit[/url] or who cannot get a bank loan, credit card, or other lower-interest alternatives. Critics counter most borrowers find themselves in a worse position when the loan is due than they were when they took the loan, with many getting trapped in a cycle of debt.
The industry's fast-paced growth indicates a highly profitable business model. Statistics compiled by the Center for Responsible Lending show that the majority of the industry's profit comes from repeat borrowers who are unable to repay loans on the due date and instead repeatedly renew their loans, paying fees each time.
http://gickr.biz
http://venasite.org/
http://zaycev.biz/
http://pokazuha.biz/
http://pivaivodki.net
http://moikrug.org/
http://aircanadaman.org
http://thevena.org
http://ivenator.org
http://potaskushkam.net
http://yourbmwcar.org
http://nameininternet.com
http://magnatt.com
You obviously are not familiar with Rule 11 and other bases for the federal courts to impose sanctions. Losing on a 12b6 does not itself justify sanctions in any way. I believe the Supreme Court got it dead on in the Solomon Amendment case, but the case was by no means frivolous. Indeed, it commanded a majority in the 3rd Circuit, which itself is compelling evidence that it was certainly a "nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law" (FRCP 11(b)). Specifically, it was a reasonably argument for an expansion of the Supreme Court's ruling in the Boy Scouts case (another case I think the Court got wrong). Certainly, the Boys Scouts case did not compel the 3rd Circuit's result -- as evidenced (in part) by the unanimous reversal of the Supreme Court. Nevertheless, there was a nonfrivolous argument for expanding on the principles established in that case to the situation of the Solomon Amendment.
And as to the poster who says that a unanimous reversal in the Supreme Court is evidence of frivolousness, you obviously know zilch about the Supreme Court. The Supreme Court has often unanimously reversed positions that were long adopted by a majority of the federal circuit courts and/or state high courts. In fact, I can think of a case where there was a unanimous reversal of long-standing law, where I think all the circuits agreed on an issue. That you contend that advocating such a position would be "frivolous" shows that you should review your understanding of the English language, and then maybe move on to your understanding of the Federal Rules of Civil Procedure.
An analogy. You're building a bridge, it's a daring design, you hire a P.E. to perform structural analysis. You do due diligence to make sure your P.E. has minimum competence. Your PE performs the analysis, says it's jake. Like most everything in life, the person who most understands the limits and quality of the analysis is the PE. The rest of us have no choice but to trust the PE. He did his job, we do ours, the bridge gets built. Later on, the bridge collapses. The survivors sue the PE for negligence.
The reason you hired one PE is that he/she comes with an understood floor of competence and certainty, so you don't have to hire another unless the first answer is "I don't know".
By its very nature, building new things with existing tools, processes, and analyses, brings risk. Yet the world always changes, so we must keep building new things if we are to survive. We are locked into this path since we climbed down from the trees and started using our brains to reason and make tools, instead of tooth, muscle, and claw.
We never would have had an airplane industry if every time an airplane crashed in the 1940's, the engineers were successfully sued for negligence, for not using 21st-century analysis methods. Especially since all that 21Cen knowledge is based on the accumulation of countless test article failures, and a few tragic in-flight ones.
Knowledge gained is cumulative and iterative, significantly driven by analysis of failures caused by unavoidable lack of knowledge and limits of tooling.
Yet some claim that they know that Yoo was crimminally negligent because he didn't cite X or Y. If that holds, then lawyering is irrational.
You do the best you can with the tools you have right now, within the constraints of time and space. Provided no malingering or deception is involved, trying, failing, and trying again is not negligence, in a rational world.
Yoo is the PE, the daring bridge is fighting terrorism. The changed world is lethally effective non-state actor unlawful combatants motivated by irrational memes. Yoo analyzed whether a type of fastener (interrogation methods) built for a different bridge and world could be successfully used on this one.
If Yoo was so negligent, how did he ever get to OLC? How come those who are so sure now that Yoo was wrong didn't apply and come out ahead in the talent search of a new administration?
Yoo's analysis worked for a while. But over time, evidence accumulated that it was less that complete, less than satisfactory. New opinions have been prepared that improve the situation.
If we also must then punish Yoo for not being as smart in 2001 as VC commenters are in 2008, then lawyering is irrational. Are you sure that's the pyrrhic victory you want?
To make the bridge analogy more accurate, you should say that you hire a someone who has theorized about bridge building but never actually designed or even seen a bridge. His theories should be considered bizarre by experienced bridge designers, all of whom should say the bridge will collapse. You should then give the theorist 24 hours to design his bridge and then build it according to his specifications.
As for how John Yoo got the job, you seem to assume that hiring for political positions is based on legal abilities. It is not.
I'm not sure that Yoo is all that anxious to risk being arrested for war crimes. My guess is that he feels much safer here in the loving arms of the Bush Justice Department.
If you read carefully, it is clear that Yoo would only need to start travelling once the prospect of a deposition was real. That would mean a MTD had failed, which my first sentence strongly suggests I find unlikely.
But no one knows if Yoo's lawyering was crimminally negligent. IANAL, but I think Padilla would first have to demonstrate harm to him (standing?), before he can subpoena all sorts of Yoo OLC work products to fish for possible evidence of crimminal negligence. Provided standing was granted, it would still be hard to distinguish between an incomplete analysis due to limitations of time, staff, talent, training, and expertise, and a willfully negligent or bad faith analysis. My point is: presupposing crimminal negligence, then mounting a fishing expedition to find it, is irrational, backward looking, and a waste of everyone's time. Presuppose honest mistakes, learn how the mistakes were made, modify the processes to avoid them in the future, recognizing that in the future you'll make new mistakes, and some caused by the changes you just made. Padilla and his useful idiots are still trying to fight a war against the USA, by trying to turn our strengths into weaknesses. Let's not let them.
Orin:
You do the best you can with the tools you have available. I'm under no illusion that White House appointees are consistently the best legal minds available. You can't hire them if they don't apply. And who would want such a job: low pay, thankless, long hours, vindictive partisans threatening and trying to ruin your life through subpoenas. That's why I call it pyrrhic. Punishing Yoo to make an example only insures that fools or incompetents will want an OLC job, and the legal advice produced will be useless "on the other hand" pap. The only people who want the job now are career climbers, a White House or Justice job is just a step to somewhere else. I just gotta believe that Yoo made it to OLC based on recommendations of law profs and others who knew him. He wasn't a complete cipher. And the White House isn't going to hire naysayers. We all of us hire lawyers to help us get useful things done, not to obstruct our efforts. Naysayers in any organization are deadly to its efforts.
So where were all these experienced bridge designers when the White House needed them? How come the OLC couldn't tap their expertise? Is the Justice Dept and OLC too insular? Does it need a method to bring in outside, good faith review of difficult legal opinions that won't be perverted by partisanship? Good engineering practices often include bringing in an independent review team for a deep dive on a difficult design problem. Both performing and reviewing engineers just love these deep dives, because they all get smarter and the product is better. Can outside lawyers even be trusted to provide expert legal advice without attempting to influence policy? And if we're now going to sue lawyers for performing legal analysis in an imperfect world, wouldn't competent, experienced lawyers refuse to get involved? Just asking.
And if Yoo's theories were bizarre, that's not sufficient that they are wrong. Bizarre means they are difficult for others to determine if they are correct. So either OLC doesn't have sufficient oversight, or Yoo formed and made it through Law School with his bizarre theories unrecognized and/or uncorrected, or he made them up on the spot. That's still not sufficient to even suggest crimminal negligence. Never attribute to malice what first can be explained by incompetence. And the Federal government, excepting our Armed Forces, is about the most inept organization in our country. Inept governance is not a crime. It's corrected by elections, not prosecution.
More broadly, if press reports are correct, Yoo was given the job and extraordinary power within DOJ because he was willing to tell the White House what the White House wanted to hear. It was no accident that he provided the advice he did: He was there precisely to give that advice, because the White House wanted to do what he said they could do. To use your engineering analogy, powerful individuals within the White House wanted to build a bridge that would fail. So they picked Yoo to design the bridge.
Of course, that doesn't mean that anyone committed "criminal negligence", whatever that means. Providing bad legal advice isn't a crime. But your efforts to compare this to bridge design are based on a deep misunderstanding of the Justice Department and the law.
Say I am a victim of extortion, where the mobster was advised by a lawyer that the racketeering was legal. It would be perverse to allow me to sue the mobster (who ought to have some kind of defence of the type "I relied on the advice of a licensed professional") but not the lawyer.
Addington pushed him out - there was no shortage of good advice in the OLC, only an unwillingness to listen.
Part of being a competent lawyer is telling your boss the bad news when the law does not permit what he has asked for. If you have the intellectual honesty to do that, you have nothing to fear.
No, we hire to lawyer to learn what we are and are not permitted to do by law. If I ask my lawyer if I can drink and drive, he will tell me this is a bad idea and attempt to obstruct my effort. On the other hand, if I hire a "yes man" to simply tell me what I want, I will get arrested or sued and his advice will have been no help.
Fixed it for you.
I didn't know Yoo was still working for the government.
Is there no recognition within the legal community for those who write or talk about supporting the US?
On the merits, it seems to me that this is Yoo's best defense. It's pretty plausible that, if Yoo had given other advice than he did, the White House would have ignored it and done what they wanted to do anyway. That's been the Buah Administration's MO anyway.
A similar, but not exactly parallel situation, I think, is the Agent Orange cases. The defense was basically a government contractor defense. The argument was that the chemical companies could not be held liable for delivering what the government ordered. The case could go forward only on the theory that the chemical companies knew stuff about dioxin in Agent Orange, and that they kept it from the government so they could keep the contract.
Similarly, here, I would think that a government attorney could be held liable for his advise only if it was both clearly wrong (and the lawyer either knew or should have known that it was wrong), and if the government relied on the advice in good faith. I think it would be really tough to establish the second part of that test.
On the other hand, I think the clinic would probably be pretty satisfied if they could get some sort of ruling about the advice being clearly wrong, regardless of causation issues. And I doubt they would seriously dislike a ruling that the Administration was hell bent on torturing no matter what Yoo advised, even though that would mean losing the case.
When I sue Barry Sabin under the ADA, he will not be able to claim immunity. I can't say anything about the theories of Padilla.
Wouldn't a strategy of saying that you don't recall things that you actually do remember rise to the level of perjury?
Punishing Yoo to make an example only insures that fools or incompetents will want an OLC job
Why wouldn't it ensure that qualified and right-thinking, principled people will want the job? False dichotomy, in other words.
Huh? Venue in the NDCA is not "nominal", it's where venue actually is under 1391 (b)(1). Whatever the merits of the case, filing in the NDCA is not "shopping" for venue.
I agree that "proper venue" isn't "venue shopping." The plantiffs allege that they had the option of filing for the SF Division or the Oakland Division, and they went for SF.
The time stamped complaint, avaiable at Opinio Juris, shows that they drew Magistrate Judge Maria-Elena James. Normally, a party can decline the assignment of a magistrate judge and insist upon an Article III judge for the substantive stuff. It'll be interesting to see how it's played out. A profile of her is here.
Where is there any evidence that Padilla has been either?
Davod: "How many US citizens have died because of the strict adherance to international law?"
I don't know. How many US citizens have had their lives saved because of strict adherence to international law?
Or better yet, why don't we just chuck the entire US constitution because, hey, all those rights people have just get in the way of executing people we don't like.
Of course the only possible interpretation is your interpretation.
How silly of me.
I like to think of myself as a "qualified and right-thinking, principled" person. But I would not take a job giving legal advice in a political branch of government if I knew ideologues who disagree with my reasoning or conclusions could sue me over my work in federal court. If I do bad work, I expect that some consequences might naturally follow: I could get reprimanded, demoted, or fired. I would never expect to be subject to civil liability, however.
Actually, getting demoted, fired or reprimanded by your boss for not giving in to his blatantly illegal requests (read: Comey) ends up getting you more respect than being a yes-man anyway.
Padilla is a convicted terrorist; a jury of his putative peers found him guilty. Legal questions and the merits of this case aside I don't give a damn about what happens to him. With the recent challenge to lethal injection being raised before the nine, it's time for states to simply to bring back the firing squad, which I believe the Sup. Ct. has already ruled is constitutional. Enough of this constant braying and cud chewing.
I don't understand, however, why the moral rectitude of terrorists ever gets into the discussion. Padilla is clearly scum. Unfortunately the founders, in their infinite blunder, wrote us a Constitution that gives rights to all citizens, scum included. So when Yoo steps all over the Constitution to get at scum like Padilla, I have to conclude that they are both threats to America.
Likewise, you'll have to agree that our founders really screwed the pooch by dictating that all treaties duly passed become supreme law of the land. Whether or not Int'l Law saves lives is irrelevant - the Constitution clearly requires that we respect the treaties that we sign &ratify and that's that.
Of course, if you don't like the dictates of the US Constitution you are free to move elsewhere. Don't let the door hit you on the way out.
PS. What is the serious hang up with sodomy in this crowd? I thought liberal arts majors were supposed to get plenty of action and yet folks get so uptight you could tune a violin by 'em.
As indicated elsewhere in this thread, the job was a highly sought job, available only to highly qualified people. The fact that Yoo's opinions were so completely wrong and that they were almost immediately withdrawn by the next chief is probably the best proof that (a) Yoo issued intentionally wrong opinions, and (b) everyone knew that Yoo was intentionally giving wrong advice. The arguments are: Given his qualifications, Yoo could not have been so wrong except intentionally. The actions of the next chief (and the guilt-laden book he subsequently wrote) are the proof of this pudding.
Yoo took the job at Boalt in Berkeley after he didn't succeed in replacing his boss (it has been reported that everyone agreed Yoo shouldn't be exposed to confirmation hearings, probably because everyone wanted to avoid any public exploration of Yoo's advice, which would inevitably focus on whether Yoo knew his advice was wrong). The real miracle here is that there have been no public protests directed at Yoo at Boalt Hall, no picketing of his courses, etc. Another miracle is that no one has moved to disbar Yoo on the grounds of his failure to support and defend the Constitution (as outlined elsewhere in the thread). We can only hope that things at Boalt and the bar associations will change soon.