Friday, February 20, 2009

Yes, Fire John Yoo

I agree with Brad DeLong: John Yoo should be fired. I am not a constitutional lawyer. I think most non-lawyers would be surprised to find that a vast majority of U.S. constitutional law is mind-numbingly boring. But a good friend from law school who is a bona fide constitutional law expert has repeatedly assured me that Yoo's so-called "Torture Memo" is undeniably false, and that Yoo is effectively guilty of professional misconduct. Had the Torture Memo been submitted to a court, Yoo's failure to even address Youngstown Sheet & Tube Co. v. Sawyer (1952) would have violated Rule 3.3(a)(2) of the Model Rules of Professional Conduct, which prohibits lawyers from "knowingly . . . fail[ing] to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." On grounds of professional misconduct alone, Yoo could—and should—be fired from Berkeley Law. DeLong's reasoning is solid, but the arguments about academic freedom are extraneous. Repeat after me: OLC memos are not academic scholarship. "Academic freedom" is not the same thing as "immunity for academics." Yoo is guilty of professional misconduct, and is probably criminally liable as well. Giving arguments about "academic freedom" the time of day is far too generous, in my opinion.

3 comments:

AC said...

That's a pretty strong opinion to be second-hand.

Anonymous said...

It seems that the lawyers are trying to decide whether or not John Yoo violated any laws which could justify his dismissal. Of course we live and abide by the rule of law, so this is natural, but in the parsing of subtle legal distinctions we seem to be losing sight of the wider and deeper moral/ethical as well as historical issues. The truth is this: that the actions of John Yoo and others are on the same continuum as the actions of Adolf Eichmann or Dr. Mengele and other enablers of the holocaust. Of course 6 million were not killed here, but that’s not the point at all—rather it is that these men used their positions of authority to write cold yet rational legal briefs/memos which would permit/enable barbarian acts against other humans—yes, in violation federal and international laws to be sure, but beyond that they helped to reiterate a political culture in which the ends justifies the means, and the United States government could be transformed into a semblance of the Third Reich. The totalitarian nature of the Bush administration has been written in various places….and it’s this that Professor Yoo must be held accountable for, no less than a Nazi war criminal. If his actions are on the same plane as enablers of the holocaust, then I am wrong, but I would argue that they bear a striking resemblance.

Cynthia P. said...

You might be interested to know that a weekly Witness Against Torture is starting tomorrow, 5/31, at John Yoo's house, 1241 Grizzley Peak, Berkeley, 2-5 pm. I would be very interested in knowing your opinion of this action as I appreciate what you wrote on firing John Yoo. Your piece takes many twists and turns, but I think I was able to follow your arguments. I'm not a lawyer, I'm a former law librarian and peace activist who is extremely disturbed by John Yoo's actions. I have a commentary in this week's Berkeley Daily Planet:
http://www.berkeleydailyplanet.com/issue/2009-05-28/article/32987?headline=Neighborhood-Alert-Berkeley-Home-to-Possible-War-Criminal