Brad DeLong Writes a Letter About a Suspected War Criminal on His Campus

My friend Brad DeLong has written a clever letter:





TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the “Torture Memo” of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo–the matter that Boalt Hall Dean Chris Edley has named “The Torture Memo and Academic Freedom”—the role played by John Yoo in the Bush administration”s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo”s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo’s “Torture Memo” and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo”s recently-released “Torture Memo,” and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the “Torture Memo” I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer’s maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which–under the pressure of bewildering economic coercion–he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar…

In Professor Kantorowicz’s view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state–even if it is that the government of the United States should be overthrown by force and violence–and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics–misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, “while outside legal work isn’t formally scholarship, it has its own ethical obligations.” The absence of relevant Supreme Court precedent from the Torture Memo is a “failure to meet the standards of practice required by the legal profession [that] appears… close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct.”

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the “deciders”–George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld–his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible “ticking bomb.” Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework–and so cramdown the torture policy by issuing what was essentially a “get out of jail free” card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture–that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot–a true ticking bomb. But, William Blackstone proudly stated, this rack had always been “an engine of state, and not of law.” Some inform me that John Yoo’s role in making the strappado and the water torture–which Bush administration members of the twenty-first century speak of in euphemisms as “severe interrogation methods,” just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace “the Duke of Exeter’s daughter”–routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues–and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong
Professor of Economics

This is a smart letter. It may seem knavish to quibble, but I’m going to anyway.

First, a minor point: I personally don’t believe that the standards of care or competence should be any different in a professional school than in the sciences or in economics. So I’m puzzled about the first point — would we make such arguments about physicists or engineers who messed up calculations on the space shuttle? I’d make a similar argument about the second point: if Yoo was on leave when he did what he’s accused of, tenure protects him from official repercussions at Berkeley, even if it was supremely shoddy work (which it was: see Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo) and Were the Torture Memos Just Normal Lawyering?).

The key point for me is the third one. I believe the case against Berkeley’s retention of Yoo is actually stronger than the “third consideration” above suggests. The worst case is not that Yoo went along with a policy already made, but rather that he was a necessary and willing participant in the commission of war crimes.

I repeat: the case against Yoo isn’t about some article he published, or some view he took on some issue, or that he gave an abstract opinion in government. It’s a claim that he materially participated in a war crime. Not some misdemeanor or felony. A war crime.

Under international law, any act that materially contributes to the perpetration of a war crime can make the actor an accomplice if the act is performed with the requisite intent.75 Yoo and Bybee may not have intended for acts of torture and cruel, inhuman, or degrading treatment to take place, but they were at minimum reckless as to the commission of such acts.76 Yoo and Bybee’s recklessness in this regard appears to meet the intent requirement for aiding and abetting war crimes under international law.77 As the International Criminal Tribunal for Yugoslavia (“ICTY”) expressed in Prosecutor v. Kvocka,78 “[t] he aider and abettor must. . . at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct…. [I]t is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed.

— Milan Markovic, Georgetown Journal of Legal Ethics (2007), Can Lawyers Be War Criminals?

If Yoo’s actions met this standard then he’s a war criminal. And if he’s ever adjudged a war criminal by a competent tribunal, I presume most sensible people would agree that he has no business being a professor of anything.

But at present Yoo is only an alleged war criminal (even though the evidence seems substantial), and that makes a big difference. What Berkeley’s rules allow them to do about an alleged war criminal in their midst — and what process and proof they should require in the absence of a finding of war crimes by a competent tribunal — are not easy questions. Tenure is important; it shouldn’t be removed for anything but the extreme case. I agree with the near-absolutists who say that it shouldn’t be revoked even for advocating vile ideas, although I think the actual commission of a war crime — even one committed by issuing a legal opinion while in government rather then wielding the electrodes or dunking the victim — is different from simple advocacy of torture or worse.

In the ordinary course, if there were any grounds to expect that a competent prosecutor or tribunal would at some reasonably proximate time become seized of this issue and make a reasoned judgment, I’d be inclined to say it is acceptable for Berkeley let it go until then. (That seems to be what Christopher Edley, Jr. both says Berkeley’s rules require and what he personally advocates.) But for obvious political reasons I suspect that there is little realistic chance of a serious investigation in the USA as to whether war crimes were committed by the Bush administration, and if so who is responsible. That’s a pity, but it seems the most likely state of affairs, and one has to reason and plan based on what seems likely. Prosecutions abroad are less unlikely, but if the alleged perpetrators don’t travel to the jurisdictions most likely to act, that too will not come to pass. One certainly cannot reasonably rely on them.

What, then, is a great University like Berkeley to do if it comes to fear it may be harboring a war criminal in its midst? It cannot rely on external forces to solve the problem for it. Mob rule — firing someone because people are baying for their job — is not the answer, although collective shunning might be a good first move. Universities are not well set up to adjudicate a dispute as to whether a professor committed a war crime. Yet the difficulty of the task (and, one hopes, the rarity of the need to face it) is not in my opinion an excuse for doing nothing. This appears to be a minority view: for what seems to be the majority view see Leiter, or the various posts at Balkanization — although most proponents of the “drop it now” view don’t address what I see to be the key issue: the ground for discharging Yoo, if there is one, is the all-too-plausible allegation that he took part in a war crime. Not just advocated one from the ivory tower, but committed or aided and abetted the commission of actions prohibited by our law, by jus cogens, and by any standard of decency. The countervailing problem is that this claim is extremely difficult to adjudicate in a University setting, and his tenure demands no less than some initial test for substantial cause, followed by a full and fair proceeding. That is asking a lot of a University, which after all is in the education business, not the war crimes adjudication business.

Brad’s letter is smart because it asks the University to frame the problem and examine how it might be solved. Perhaps that will be a first step to a resolution. Perhaps Berkeley’s rules do not create an avenue for one.

Perhaps we will learn something.

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6 Responses to Brad DeLong Writes a Letter About a Suspected War Criminal on His Campus

  1. bruce lee says:

    Please stop your racist attacks on a fine Asian-American. If Yoo were African-American or a woman, he would not be attacked in this manner. Truly disgusting.

  2. Virginia Simson says:

    Perhaps if the U of C had taken up the matter with the California Attorney General, people wouldn’t be having this discussion. Perhaps THEY should have taken GOOD legal counsel and found out how to file war crimes complaints themselves.

    Too simplistic?

    No, I think the appointment of a special prosecutor in the US is around the corner. Too many lawyers are ASHAMED at Addington, Miers, Yoo and others dragging down the rating of their profession.

    WAY WAY WAY too many Presidential/Constitutional scholars have had their careers highjacked under Bush, no less than Louis Fisher. Why should John Yoo be teaching BAD LAW anywhere?

  3. LACJ says:

    Certainly he represents a ticking time bomb on the public-relations front.

    Virginia may well have a point. The (in my opinion righteous) anger felt by many toward Yoo and all the rest of the Bushies will not dissipate quickly by any stretch of the imagination.

    The analysis is right on of course, aiding and abetting. The criminal conspiracy had already instituted and implemented illegal policies, and needed ammunition against dissenters as well as something to show dubious accomplices, i.e. the CIA knew they would be left holding the bag and needed reassurance. Yoo provided that in order to further the entire plan.

    Assuming the game ain’t fixed, first we will have to wade through all of the executive orders used to try and slow the eventual investigations, to cover one’s tracks so to speak. So consistent political pressure needs to be maintained through the institutions created over the past 5 years.

    I would say 5-10 years from now there would still be a great deal of political energy to initiate investigations. I would be up for it. And I can’t see how some kind of advance pardon or whatever they come up with will be able to tie our hands at this later time.

    Gonzo is already shunned, we will get there with Yoo, too. Just might take longer.

  4. PHB says:

    Over the course of time Yoo will either be a pardoned war criminal or a criminal defendant. Neither is likely to prove compatible with remaining on the faculty of a law school in the long term.

    He may not be indicted under the next President. But there is no statute of limitations for war crimes. It took 30 years to bring prosecutions against many of the Klansmen who committed murders in the civil rights era. It will likely be the same with Yoo et. al.

    What is rather more important than prosecuting Yoo however is to repudiate the policies he helped to promote. Like the British Conservative government, the Bush administration’s first reaction to terrorism was to apply internment and torture. Those tactics entirely failed. In fact you have amoral opportunists like Giuliani giving peace prizes to the likes of Gerry Adams as a direct result. You cannot defeat a terrorist campaign with terrorist tactics. The whole point of the terrorist tactics are to cause the state to de-legitimize itself.

    The British government defeated the IRA by refusing to give it the dignity of applying extra-legal methods and in particular refusing to grant political status to imprisoned terrorists. Bobby Sands and others starved themselves to death fighting for the status that Bush granted Al Qaeda prisoners without any fight whatsoever in Guantanamo.

  5. LACJ says:

    Yes exactly PHB. How that process works is fascinating and complex. But your assertions I believe are true.

  6. 14 amendment privileges
    5 amendment

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