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"Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.
Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo—memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate, respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.
Check out this exchange:
Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."
He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."
Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.
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Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning
to convene a conference to plan the prosecution, trial, and punishment
for senior Bush administration officials. The effort is reportedly
being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:
"This is not intended to be a mere discussion of violations of law
that have occurred," said convener Lawrence Velvel, dean and cofounder
of the school. "It is, rather, intended to be a planning
conference at which plans will be laid and necessary organizational
structures set up, to pursue the guilty as long as necessary and, if
need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in
courts of justice," Velvel said. "And we must insist on appropriate
punishments, including, if guilt is found, the hangings visited upon
top German and Japanese war-criminals in the 1940s."
... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to
spend years in jail or go to the gallows for their crimes would be a
powerful lesson to future American leaders," Velvel said.
Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...
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I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly: Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?
The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no." That seems to be the answer Senator Obama wisely supplied.
Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture. In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.
Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position. Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks. And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.
The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."
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With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think
Edley's position on John Yoo gets it exactly wrong
—and epitomizes why people deride the "Ivory Tower" as insulated from reality.
Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the
consequences of their counsel. I also think that law schools ought to model behavior for their students and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous
policy, to say nothing of the suffering of
those on the receiving end of Yoo's ideas.
And I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong
—or when their counsel produces terrible outcomes. As my colleague Deborah Pearlstein
points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines. I don't think we should accept it in the law, either
—not in practice and not in law school, either. Academic freedom should not be a dodge for personal or professional responsibility.
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continue reading at Balkinization ...
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I agree with Marty that the questions raised about Yoo's position at Berkeley are complex. I do not hesitate to hold Yoo ethically and morally culpable for what he did as a government lawyer. I am skeptical but I suppose open to specific persuasion that there is a clear case under existing law for his criminal culpability as well. Every employer has its standards for measuring its employees against these matters. And while I suspect Berkeley was mistaken to take him back for a variety of reasons, it seems to me inesapably the employer's decision about whether Yoo's behavior in these regards violated the standards they have.
What I find perhaps most troubling for a deep believer in academic freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly wrong under the law.
I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology. Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false? Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World?
Law, of course, is not science—as much as it might pain some of us to admit. It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality. But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life. Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it. Would I pay for my kid to attend this law school? Not in a million years.
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In addressing whether Professor Yoo should be open to revocation of tenure or other academic status inquiry, Dean Edley and Marty Lederman have thoughtfully defended academic freedom and the rule of law. I concur. That does not free us from the lessons to be learned and taught, including pondering for contemporary purpose the meaning of Aeschylus, who wrote, "In the lack of judgment great harm arises, but one vote cast can set right a house."
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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 ...
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