Now a group of students and alumni of Boalt Hall have organized a counter-petition to defend free speech, open inquiry, and academic freedom at Berkeley’s law school. The petition is here.
Meanwhile, the organizer of the petition against Professor Yoo appears to be backpedaling. He now tacitly acknowledges the legal basis for claiming Professor Yoo “aided and abetted” the commisison of war crimes is rather weak: Yoo’s legal argument is wholly defensible; the memo does not advocate immoral, let alone illegal, acts; there is no evidence Yoo intended that the U.S. violate the Geneva Conventions, let alone torture prisoners; and even if there were such evidence, there are “conflicting cases” as to whether this would even be enough.
In another post, he claims Yoo should be held responsible because “He must have or should have known that in the real world, his client would end up imprisoning completely innocent civilians, . . .” This is a non sequitur, as whether the U.S. detined the right people is a separate issue from the legal obligations the U.S. has toward the dtetainees. Any policy involving detention or imprisonment will result in the detention of some number of innocents.
In the end, we learn that the real objection is that Professor Yoo dared to work for an unpopular client (the U.S. government) in support of an unpopular cause (the war on terror). Yoo’s work for the Justice Department is compared to legal work for a mafia don:
Suppose a moonlighting law professor takes on a mafia family as a client. He provides them with legal advice that, while accurate, he knows will be used to cause great harm to innocent persons. Is that protected by academic freedom? If students are so repulsed by his immoral actions, is it inappropriate to ask him to resign?
The short answer is: Yes. A defense attorney has the obligation to zealously defend his client and to force the government to prove its case beyond a reasonable doubt even if that means that a guilty man will go free and may proceed to harm further innocent victims. Should Harvard law students ask Professor Alan Dershowitz to resign because of his unsavory client list? I would hope not.
A lawyer should not counsel or facilitate illegal acts, but there is nothing wrong with outlining which acts are illegal or could result in prosecution (the sum and substance of Professor Yoo’s memo). A lawyer has an obligation to be honest and scrupulous in his representation, and to uphold the law. Articulating a defensible legal interpretation of U.S. treaty obligations and the application of relevant laws to alleged terrorists does not contravene this responsibility in the least. However much Professor Yoo’s critics may detest his legal position or his opinions, there is no evidence that he did anything but faithfully discharge his obligations. By suggesting otherwise, and calling upon Professor Yoo to repudiate his position or resign, the petitioners adopt a strained view of a lawyer’s professional responsibility and challenge the idea that all individuals and entities should have access to zealous legal representation.
As I commented before, the petition and the ideas expressed therein are an attack on both academic freedom and the ability of lawyers to take unpopular positions on behalf of unpopular clients. The petitioners should not pretend otherwise.
Update:Eric Muller thinks the anti-Yoo petition is “silly” and “a big waste of time.” He also outlines the questions about DOJ’s role in interrogation methods that might actually be worth asking.
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