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Blame Berkeley

Yoo, Tenure, and the Academy

In response to many calls for possible dismissal (or at least investigation) of John Yoo at the Boalt (Cal Berkeley) School of Law, Dean Chris Edley yesterday issued a memorandum strongly rejecting the idea (albeit reserving some harsh words for Yoo's work in the government).

Although I have been among the most vociferous critics of both John Yoo's work in the government and his scholarship, I largely agree with most (though not quite all) of what Dean Edley says here, and I, too, am uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor. (Full disclosure, for what it's worth: I worked both with Chris Edley in the Clinton administration and with John Yoo in the Bush administration. I have not spoken to either of them about this matter.) For an alternative view, see this provocative post (and the resulting comments thread) from Henry Farrell.

Especially because I don't have any special insight on this question, I'm very interested in what my co-bloggers have to say about it and, more broadly, about whether there are other steps that members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing.

Continue reading at Balkinization ...

A guest post from Jonathan Hafetz

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at NYU Law School. His thoughts on the torture memo and Guantanamo, below:

John Yoo’s recently released March 14, 2003, OLC memo is a tour de force of legal analysis gone bad. The memo has been rightly vilified here and elsewhere for making the president a king and for contributing to a torture culture in America. But even though Yoo’s memo has been repudiated, its discredited ideas live on in the detention system he helped create. Worse, Congress has now codified many of Yoo’s ideas through the Military Commissions Act of 2006.

The prisoners condemned to legal limbo as “enemy combatants” are the first casualties of Yoo’s War on Law. Hundreds of men (many completely innocent) have spent years imprisoned at Guantanamo without habeas corpus or due process because Yoo and others sought to create a prison beyond the law. Guantanamo, in turn, has given rise to a combined system of indefinite detention (through Combatant Status Review Tribunals) and trials by military commissions that depend upon evidence gained through the very coercive interrogation tactics that Yoo sought to legitimize. Indeed, Brig. Gen. Thomas W. Hartman, the commissions’ legal adviser, maintains that military judges can even rely on evidence gained by water-boarding, a torture technique sanctioned by Yoo’s earlier (and now repudiated) Aug. 1, 2002, legal opinion. In other words, no evidence is too tainted for the Guantanamo commissions to consider.

Meanwhile, my client Ali Saleh Kahlah Almarri, a legal resident alien, is approaching his fifth year in virtual isolation at a Navy brig near Charleston, S.C., based upon Yoo’s discredited assertion that the Bill of Rights does not apply to the president’s conduct of the “war on terror” inside the United States. Remarkably, the administration continues to defend the proposition that the president can seize terrorist suspects in the country and detain them indefinitely as “enemy combatants” even though its deliberate mooting of the Jose Padilla case in the Supreme Court shows it recognizes that proposition is legally bankrupt.

Criticisms of Yoo often overlook his unthinking conflation of terrorism with war. Yoo is right that a state of war gives the president broad powers, even if he is wrong that those powers are unlimited and beyond regulation by Congress. But Yoo never critically examines the legal consequences of extending his too-robust vision of the executive’s war powers to terrorism. It is this leap that makes many of Yoo’s bolder assertions so terrifying. For example, Yoo’s assertion that the Fourth Amendment has “no application to domestic military operations” uses the rhetorical trope of the “war on terror” to mask the creation of a police state that can seize, interrogate, and indefinitely detain individuals on mere suspicion. It effectively sanctions a permanent state of emergency in which executive say-so swallows the traditional protections of criminal law upon which the Constitution’s guarantees of individual liberty were founded.

Restoring justice in America requires more than exposing and repudiating John Yoo’s legal thinking. It requires restoring the system that Yoo’s discredited ideas have helped to undermine and destroy.

Defending the Indefensible: A Correction

I appreciate Marty's effort to be conciliatory, but in the process he very seriously misrepresented my views and those of a frequent collaborator. Marty says that he is "heartened that [I am] no longer defending the idea that the Yoo/Addington theories are the better readings of the text, structure and history." And he cites a blog post by Jack Balkin, which criticizes an op-ed that we published in the Wall Street Journal almost four years ago.  However, as Balkin's post makes very clear, that op-ed did not defend the Yoo/Addington theory. It instead argued that Yoo's memos fell into OLC's tradition of pro-executive lawyering, and should be understood within the context of this tradition, whether or not the legal reasoning was correct (and we did not say that the reasoning was correct).

Jack criticized our argument, and although I don't agree with all of his criticisms (he mistakenly implies that the Bush OLC was the first OLC to fail to cite the Youngstown case in the course of making an aggressive interpretation of the president's constitutional powers, when the Clinton OLC did the same thing), I appreciate that he resisted the impulse to tar us with views that we were hoping to put into context but not to defend.

Next Time?

Seems to me that about the most useless thing any of us can do with the Yoo memo is form character judgments. Whether his work at OLC was animated by bad motives or a well-intentioned desire to avert a terror attack is beyond the scope of a legal blog. Let’s leave that to the angels. This discussion is only useful insofar as we grant that folks at OLC will always face enormous pressure, particularly in the wake of a tragedy like 9/11, to make decisions that may look really bad in hindsight. Doug has some prescriptions for checking that pressure, as does Dawn. Instead of bickering about character facts not in evidence, we should be thinking about what happens the next time.   

Yoo, Esquire, and Disgrace

The first time I met John Yoo was in the E ring of the Pentagon in 2003 or so, near Don Rumsfeld's Office. He was carrying squash gear, as were his Pentagon pals, giving the E ring something of the atmosphere of a locker room. Yoo, a young man, was obsequiously hamming it up with the Pentagon's general counsel—among the people he was meant to be controlling. Honored with laughter and respect, he seemed to be basking in the joys of being one of the gang. 

At that exact moment, unbidden, the word "sycophant" came into my head, and there it has remained. That Yoo's memo consists of highly formalized boot-licking is no surprise but a reflection of what was going on anyhow.

Esquire's interview of John Yoo provides some support for Ron Rosenbaum's theory that profiles should more often be written without the participation of the subject. We don't know much about what the profile will be like, and it may be better. But the interview is mainly a platform for Yoo's defensiveness. John Richardson is a good writer who has done great pieces in the past. But this interview shows few signs and includes the cringe-worthy "John, you’re a very engaging guy, I like you—I can’t picture you writing that phrase 'organ failure or death.' "

The memo isn't new news. But I agree with Dahlia that its blandness and boringness is part of the news. And it does confirm that whatever else happens, John Yoo is disgraced and should remain so unless he one day apologizes. His sin is well-identified by Dawn, who had his job  (Dawn, incidently, was the boss during my extremely short stay at the OLC, so if you want to say I'm being a sycophant, go ahead). He did the opposite of probably the most important thing that the OLC is supposed to do: tell the government what it can't legally do. He, instead, twisted the law to give his client, the White House, the answer they wanted. 

The lawyer is always at risk of becoming his client's lapdog. Legal boot-licking may be a constant temptation in legal practice, and it is something that happens too often, but it's obvious to any lawyer that it is wrong. And the higher the stakes, the worse the sin. Yoo, when tested, failed completely.

Finally: In the Esquire interview Yoo spends lots of time suggesting, basically, that anyone would have done what he did. Nonsense. Jack Goldsmith, among others, faced up to the enormous pressure he was placed under to deliver the "right" answers. Some might argue that there was probably more Jack could have stood up to, but he stood up to a lot, and at huge personal and (at the time) professional cost. Yoo, instead, took the easy way out. That may have led to some friendly squash games, but also something else: enduring disgrace.

Is an Objective Appraisal of John Yoo's Work Possible?

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban.  Here there is reason to believe that the administration in not opting to apply the Convention committed error.  But, of course, this is wonderfully clear hindsight.  Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors.  It is unfortunate this more balanced appraisal was not memorialized.  Recently, in Esquire, the Professor stated:  "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy."  Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done.  He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum.  Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember.  One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving.   It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right."  To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith.  Professor Goldsmith has written an important book on his very short tenure in OLC (nine months).  I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period.  He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally.  Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair."  It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent.  To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture.  He does not say what source he would have used and why it was more analogous.  The phraseology "organ failure or death," was at least specific, and had been written into law by Congress.  Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific.  Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters.  It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person.  It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all."  John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped?  As it turned out, it was not.

The Totality of the Circumstances 

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons.  Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war.  Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations.  It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well.  The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them.  What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience.  Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity.  This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that. 

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime."  But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum?  In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given.  What is remarkable is that this attitude continued right through 2003.  When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different. 

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice.  It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches.  Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of  Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

Stuck on Yoo

Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Memo, p.4 (emphasis added).

No citation to authority. No offer of any logical or factual support for the claim. No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind. Just Yoo.

Hard to say what bothers me most here. One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only "executive" expertise evident here is Yoo's own take on what might be effective in preventing future attacks. Can't particularly think of anything other than torturing captured detainees. So that must be the only way.                         

Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected—but rather in a legal memo, as part of a legal analysis of the president's powers as commander in chief—to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author "state the basis" of the claim. Or maybe it's the entirely illusory nature of the proposition. We "may be" all about to explode. Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows.

Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments (9/11 Commission Report included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack. Or in the face of the recognition of the U.S. Intelligence Science Board that "knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest." That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual.

At a minimum, there's no way this paragraph should do any legal work. Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture. And it's part of how he gets around to saying torture should be up to the executive branch alone. So maybe what scares me most is that counterterrorism is indeed serious business—and I would really, really like to think someone other than John Yoo was minding the store.

Another Stinkin' Memo

After reading the March 2003 memo (NYT and WP), I feel like the youngest kid at Passover dinner, who by tradition asks the question "How is this night different from all other nights?"  Except that in this case, I'm left with the question of "How is this torture memo different from all the others we've read so far?"

I agree with Marty that the answer has to do partly with the bureaucratic manner it which it was conceived, authored, published, and classified. It's highly unusual for such a broad statement of administration policy to be issued over the signature of a deputy assistant attorney general—and that such a low-ranking official would basically be speaking for the Justice Department and the White House on these issues through the interagency process to the Pentagon. So, this memo is different to the extent that it didn't come from Alberto Gonzales or Jay Bybee or someone else of significant rank. 

It's also different because it appears to have been conceived entirely by the super-secret-squirrel (a military doctrinal term) working group of lawyers that included David Addington, John Yoo, and a handful of others. That cloistered environment facilitated much of the legal reasoning in the memo; it also ensured it would be highly classified and kept from public view for a long time.

But what about the legal reasoning? Is this really any different from other memos we've seen (and written about) so far? It's certainly longer. And as Orin points out, it alternates between solid and shaky analysis. But in general, I think Emily's right that this reflects the same broad, sweeping rhetoric we have seen before in other torture memoranda hatched in the White House, Justice Department, and Pentagon. What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram Air Base.