In response to an on-line petition demanding that UC-Berkeley fire John Yoo from his position as a tenured professor of law, Brian Leiter posted a spirited defense of the value of tenure. Marty Lederman followed up by posting a memo from Berkeley Dean Christopher Edley. While I agree that there are insufficient grounds to dismiss Yoo, I think it is important to separate two strands of criticism of the Yoo memos on torture, executive power, wiretapping, and so on.
One strand is that torture is a grave moral evil, the establishment of a "torture culture" (David Luban's term) in the United States has been a moral catastrophe, and we have ceded the moral high ground in international affairs for the foreseeable future. Dean Edley responds to this with a version of the standard lawyer's defense -- the culpability of an advisor must be less than the culpability of the client, whether a private or a government actor. The moral opprobrium belongs to the policy-makers -- Cheney, Rumsfeld, Feith, et al. -- not the lawyers who merely provided advice. He also argues that reasonable people can disagree, not that torture is a serious wrong, but over the quality of Yoo's legal analysis:
There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle.
This leads to the second strand of criticism of Yoo's advising, which is that it represents "legal advice" only in the sense that it contains words, cites cases and statutes, and is signed by a lawyer. Although Yoo thinks these memos represent a sound view of what the law permits, they are really nothing more than his fantasy of what the law should permit, if courts and academics hadn't screwed it up.
How do I defend that conclusion? (More after the jump.}
The problem is, there's no pithy way to defend that conclusion. The only thing to do is to wade into the arguments and engage with them as we're all trained to do. I think that with enough time and care, it is possible to demonstrate the the analysis in the Yoo memos is not only shoddy (as Leiter puts it), but so egregiously shoddy that it has to be understood as something other than legal advising -- something more like providing the basis for CIA interrogators to assert an advice of counsel defense if they are ever prosecuted. Marty Lederman and Hilzoy have provided this kind of analysis, and there are countless law review articles making the same point.
I do worry, however, that the first and second strands of the criticism get run together in the following way. Defenders of Yoo will say that I'm just another liberal, latte-sipping academic who buys into the lefty human rights agenda, doesn't recognize the danger posed by "Islamofascism," wants the terrorists to win, blah blah blah. In other words, they deny that there is a non-partisan, non-ideological standpoint from which the quality of legal advice can be assessed. If I think Yoo provided shoddy advice, it must be because I disagree with him as a matter of policy preferences. To some extent, that argument is weakened by the existence of conservative lawyers like Jack Goldsmith, who stood up to a great deal of pressure to defend the ideal of the rule of law. Goldsmith is a special case, because he was a lawyer at OLC, but there is no shortage of conservative critics of the administration's attitude toward the law. So I don't think it necessarily makes one a latte-sipper to criticize Yoo on these grounds.
Still, I have been following the debate over the OLC lawyers for some time, on blogs and in the media, and it's significant how little confidence we seem to have in the notion of a non-ideological standpoint from which to assess the quality of legal advice. Anyone who suggests that Yoo is somehow deficient as a lawyer is automatically labeled intolerant of intellectual diversity. But that's to conflate these two lines of criticism. Set aside the tenure question for a minute and imagine that John Yoo was an entryy-level faculty candidate, after having served in OLC and writing the memos he wrote. My disagreement with his positions, as a substantive, ideological matter, would not be a legitimate basis for opposing his appointment to a law faculty position. But it would be legitimate to oppose his appointment because he has a bizarre idea of what sound legal advice looks like, or a wrongheaded idea of what lawyers should do when their clients demand that they produce legal advice that allows them to do whatever they want to do. This goes to a core competence of law professors, and would be a viewpoint-neutral basis for opposing his appointment. (This, by the way, was Paul Carrington's position in "Of Law and the River," and I find it interesting that some who objected vociferously to his call to kick the crits out of law schools are now up in arms about Yoo.)
Again, this has nothing to do with whether Yoo should be fired. He shouldn't be. But it does suggest a response to Marty Lederman's excellent question at the end of his post:
[W]hether there are other steps other 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.
I would think the answer to this would be obvious: Yoo should be a marginal figure in the legal academy. Someone whose arguments are so deficient, in terms of the standards of legal craft, that they can hardly be called legal arguments at all, should not expect to be taken seriously. To some extent this may be happening already. Maybe it will just take some time to digest all of these arguments and refute them carefully. After all, the 2003 memo was only recently disclosed.
Dean Edley is correct that there would be a chilling effect if universities contemplated formal sanctions against law professors who make lousy arguments. But there would be no chilling effect if other law professors didn't take lousy arguments seriously. Again, by "lousy" I don't mean "unpopular" or "controversial," even though I know some will hear me saying that. Or, if you think I mean to equate bad legal arguments with those that are not acceptable to latte-sipping liberals, we have a different argument -- one about whether there is any such thing as the rule of law.