Brad DeLong is looking for advice as to whether it makes sense to attempt to open formal proceedings at Berkeley charging John Yoo with sanctionable professional misconduct. See in Re John Yoo: In Which Brad DeLong Demonstrates That He Is an Ineffectual Procedural Liberal…
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University of Miami School of Law
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First off, it can’t be news to even a law professor that a lawyers REAL job in practice is to find the legal argument – it can be way out there, so long as it can honestly be made – to serve his clients desires. A lawyers job is NOT to find some middle ground of actual truth that his client and the other party can agree upon, unless that’s what the client wants, or is his agreed upon best option. This is Law, not Philosophy or Justice. It should be up to legal ethics boards (such as his local bar) to determine whether he has crossed some ethical line, or simply been a zealous advocate.
That said: Acedemic freedom is used to justify all kinds of wacky, offensive, even should-be-criminal behavior at times. Every university has at least one professor, and everyone always knows who, who should not be let within 100 yards of a student, but who can’t be fired. We can debate whether that is a good or bad thing, but it is the system universities choose. To back off it now, over behavior that is still arguable (and it is, whether YOU think it was the right thing to do or not), would put a major crack in that whole system. Once you can do that once for “eggregious behavior” it becomes much easier to do it whenever someone gets too uppity.
Nice to have you back, BTW. Sometime you’re going to have to fill us in with what happened.
No State bar that I am aware of permits lawyers to assist their clients in committing a crime. John Yoo was asked by his boss to give him cover to commit a crime. John Yoo complied and assisted his boss in committing a crime. Done.
That we have chosen, for political reasons, not to pursue the people responsible for the crimes is another story. But don’t kid yourself, water boarding (and other similar acts) are torture, and torture is illegal. Everyone knew it, and that is why they asked John Yoo to try to work around it.
Im not familiar with Berkleys code of conduct, and dont care to research it, but if the above is enough to get Mr. Yoo fired, then he should be fired. If not, then they should let him teach and get over it.
There are two strings to the bow: that the advice facilitated and encouraged a war crime, and that the advice was based not on a good-faith reading of the law, not on pushing things as far as they might go, but on straight-up ignoring contrary binding authority. There is no way to write a competent opinion on separation of powers and neglect to take account of Youngstown. And yet Yoo did it.
None of which tells me what Berkeley should do institutionally, although it does make an overwhelming case for shunning Yoo. (Is not condoning the torture of children reason enough?)
I’m sorry, Vic, but you’ve grievously misstated the standard applicable to that subset of lawyers who are constitutional officers.* Regardless of the policy/procedural desires of one’s immediate superiors — and, indeed, all the way up the chain of command/supervision — the oath is to “protect the Constitution against all enemies, foreign and domestic”. That is, the client IS THE CONSTITUTION, not the President who appointed one to a position of special trust and responsibility; and sometimes that requires one to say “no, sir, we can’t do that.”
This is not an adversary situation in which counsel has an obligation to “find the legal argument… to serve his client[‘]s desires,” because the Constitution doesn’t have “desires”; and, in any event, one’s supervisor’s policy preferences don’t count as “desires” that a constitutional officer is allowed to give preference to in fulfilling that officer’s duties. Even in the adversary situation, there are limits on finding that legal argument to fulfill desires, because that assumes that the desires in question are permissible (cf. Fed. R. Civ. P. 11 (“improper purpose”); Fla. R. Prof. Cond. 4-3.3 (candor to court), 4-3.4 (fairness to adversary)).
* I was a career military officer before law school, so I’ve been there.
Lots of lawyers, who don’t work in government, take an oath to support the Constitution as part of their state’s standard bad oath. (I did)
But as a former career officer, as was I, you also know that we routinely “torture” American service members in certain jobs for training purposes. And speaking for the Marine Corps, we routinely abuse beyond what any civilian should have to endure ALL current and potential Marines, for particular training purposes. (and I agree with those specific policies) And these episodes of “torture” are well beyond nearly all of the reported abuses of enemy combatants in the current war. (believe me, there were plenty of times when I wish I was just photographed being forced to do something stupid, than what was actually being done to me!) Ask a Navy SEAL sometime what happens in BUDS training. If that’s not organized torture, then there is no such thing. But it is necessary to making SEALs. I can’t go into other details of U.S. organizations which practice similar methods for real-world training purposes – but suffice it to say, they exist, and it’s a good thing which saves lives.
Yet there is ZERO outcry among the torture-concerned intelligentsia about that!
I only suggest that a good measure of the outcry over anything torture-related during the Bush years is based on anti-Bush sentiment, rather than universal principles. It’s an easy peg to hang the hat on. It’s a generational improvement on “it’s for the children.”
Such behavior is clearly NOT automatically a crime, no matter what lawmakers like to scream about it, and no matter what the laws say about it. It goes on every day, fully endorsed by the non-Bush-related government, and it’s seen as helpful, overall. We already allow torture fully under certain circumstances. And I’m sure, somewhere in the bowels of some U.S. agency, there is a memo, written by some OTHER Yoo-type that justifies it in some way.
I just don’t see how it helps anything to take a selective moral high ground on things.
And honestly, I’m torn on all this.
LMAO!!! you actually compared basic training and BUDS to torturing a captive? Seriously? Has it ever crossed your mind that those in basic training and in BUDS are there voluntarily, that they signed up for just what they are going through, and at least in the case of BUDS can simply say “enough” and the “torture” stops (they wash out of BUDS, but the “torture” stops)?
Vic, you’re flat wrong on the relationship between “torture” and anything we put American volunteers through in training. As “Just me” accurately points out, the “victim” in the latter has the power and authority to stop it at any time… and that automatically takes it out of being torture.* Further, even at advanced E&E courses and such (which go far, far beyond the kiddie stuff at BUDS), what is actually being done falls quite a way short of things like waterboarding someone over eighty times. But the key point is that what is being done to the Americans is being done BY Americans; and the “victims” know it; and the “victims” at least initially accept that its purpose is not to get information, not to break them, not to cause acts of treason, not to just inflict pain for punishment’s sake (or worse) — but to improve their capability to survive, however effective or ineffective the method.
In short, US military training is a game, and known by the participants to be a game; torture is neither. Conversely, we need not destroy the Constitution, constitutional forms of government, and in particular the preamble to the Constitution, in order to save it.
You’ve also misunderstood the point I was making about the oath. For a constitutional officer, the oath is to the client; for a regular-old lawyer, the oath is to a system distinct from the client. Perhaps that’s overly simplistic, but it’s the only way I know how to put it that some of the wilfully blind have managed to understand.
* I will leave aside whether what does get done in the name of “training” for American military personnel is wise policy, or even works; that’s not a legal question in the first place. IMNSHO, there’s a lot of room to argue about whether the “similar methods for real-world training purposes” are “a good thing which saves lives”. They are certainly an easily replicable method of demonstration that does not depend very much upon instructor skill, but — and I was cross-attached to one of those “other organizations” for most of my active-duty time — I haven’t seen a lot of verifiable evidence that those “similar methods” work, let alone that they represent best practices. Like I mentioned, though, that’s a policy, and not a legal, question… which further points out where Yoo went so profoundly wrong, because he did/could not distinguish between the two.
Law professors who do not know the law embarrass themselves all the time, see e.g. 09-23256-Civ-Cooke, and Dean’s and faculties never do anything about it. Disciplining Coo has nothing to do with his qualifications as a Lawyer and everything to do with his politics. This is precisely why we have the concept of “Academic Freedom” in the first place.
In Florida, I won’t speak to elsewhere, the first line (as I recall) of the Oath of Attorney is to defend the Constitution. Just because someone works for Government, vs. regular people, makes no difference in the meaning of that term. The intent of it in both cases is to do nothing which is contrary to its provisions.
The client, for every lawyer is a person. It may be the head of an agency, it may be the president, it may be “the people” it may be an individual or group of individuals, but it is always a person. The reason for this is obvious when you think about this for longer than 1 second. The client is not, and cannot be a piece of parchment. (Does the Constitution have standing to sue? Can it be sued? Can it assert its rights? Is its text defended on grounds of free speech? Can a lawyer influence its text directly? Nobody sues the Constitution in rem.)