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A Response to Dean Edley

By Jack M. Balkin

Were I in the position in which Dean Edley finds himself, besieged with calls for the head of an unpopular faculty member, I think my instinctive reaction would be the same as his. I would be inclined to intervene to protect the target. I would be very concerned that the calls and demands would chill the free expression of ideas which are essential to the academic world. Above all, I would be concerned about process and would insist that the target not be railroaded. Lawyers, alumni and the community more broadly have every right to express indignation and outrage about the views articulated in some of the torture memoranda that John Yoo crafted during his tenure at the Office of Legal Counsel, and concern about some of the memoranda he wrote on other subjects which have not yet become public but which suggest equally disturbing conclusions.

I agree with Dean Edley on two key points. First, John Yoo is entitled to his legal views, however eccentric, radical and harmful to our democracy. The academic community benefits from the presence of the philosophical outlier. It sharpens debate, and can furnish us with a reminder of the fundamental values which the outlier disparages. And often enough it is the outlier who is proven right against the weight of accepted opinion. The leaders of the academic community have a duty to protect those who profess unpopular views from the crowd that menaces and seeks to silence them. And this, properly viewed, is Dean Edley?s duty.

Second, it would not be proper to fire John Yoo on the basis of his views alone, nor would it be proper to terminate him without following formal process in which the charges against him are proved up and he is given a full opportunity to prove his defenses. Dean Edley is correct to hold rigorously to process. And those who crusade for Yoo's firing must recognize the legitimacy of process and accept that even if Yoo is ultimately fired it should only be by proper process. Much of the rage against John Yoo comes from his strained legal efforts to craft a space beyond the reach of law into which the Administration?s targets could be disappeared, a legal black hole into which their rights as human beings would be collapsed. It would be hypocritical of his critics to strip Yoo of his proper rights in accusing him of denying the rights of others.

But well into his memorandum, Dean Edley rolls embarrassingly off the tracks.

Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. . . [N]o argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Dean Edley concludes that as a ?mere advisor,? Yoo?s ethical and legal culpability cannot be compared with that of the ?deciders,? that is, those who actually fix and implement policy.

This is astonishingly fallacious legal and ethical reasoning, doubly so because it flows from the pen of the highly respected dean of one of the nation?s premier law schools.

Is a lawyer ?merely an advisor?? Sometimes perhaps. Dean Edley jumps to this conclusion through a number of implicit factual conclusions. Of course, the full record of this sad tale is not yet established. Much remains purposefully obscured by the perpetrators. But my own reading, based on published accounts and dozens of interviews of participants, tells me that Edley's understanding of the facts is dead wrong.

In theory, the Office of Legal Counsel issues its best analysis of a legal issue for the benefit of its client, which is to say in the first instance the Attorney General, then the President. Edley assumes that Yoo was approached, as he has stated repeatedly, and asked to advise as to the full legal range of authority of the president with respect to intelligence interrogations.

That description can't be squared with the facts. A broad array of highly coercive techniques had already been implemented in rules of engagement issued to special operations teams long before Yoo was approached. Yoo was fully aware of this fact. He was commissioned to craft memoranda, twice, for purposes of a ?cramdown.? Lawyers and senior figures within both the CIA and DOD had objected to the new techniques very pointedly, noting that they violated criminal statutes and that both policy makers and personnel using them could be subject to prosecution.

In response to this ?legal uprising,? David Addington and Alberto Gonzales decided to task John Yoo to prepare memoranda. These memoranda were commissioned with two purposes in mind. First, to protect the policymakers who had authorized torture techniques from future criminal liability (something which Gonzales had identified as early as January 2002 as a serious prospect). And second, to wield the Attorney General?s opinion powers to silence lawyers who had correctly evaluated the legal framework.

Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General?s opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

I base my conclusions about the facts behind the Yoo memoranda largely on my own investigation including not only the public record, but interviews with a number of figures who dealt with Yoo in the course of delivery of his torture opinions. Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be ?clean.? He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution. Indeed, the March 2003 memorandum reflects that he had consulted and secured non-prosecution assurances from the Criminal Division headed by Michael Chertoff. This reassurances did not have their intended affect, however. A good part of his audience believed, correctly, that his attitudes and conduct actually undermined the validity of the opinion and would render it useless in the face of future prosecutions.

Dean Edley says he is convinced that John Yoo ?continues to believe his legal reasoning was sound.? I have no way of knowing the subjective state of mind of John Yoo, but the history of his dealings in connection with the issuance of the opinions suggests just the opposite. It suggests that he believed that an OLC opinion had a talismanic power and could be used as a tool to accomplish whatever ends he sought. That is very far from a sincerely grounded good faith belief in mistaken legal concepts.

So the facts establish that the torture policies were settled upon and had in fact been implemented. The principal authors were facing severe blow back from career lawyers inside the government. And John Yoo was carted in to use the powers of OLC to silence lawyers protesting the illegality of what was done. I believe that an objective examination of the facts will show that this is precisely how John Yoo understood his role. In essence, he was not an independent legal advisor. He had become a facilitator, an implementor of the torture policies. His role had shifted from passive advisor to actor, pushing a process forward.

Dean Edley then states that the ethical accountability and legal liability of the legal advisor cannot be compared to those of the policy maker. This statement rests on a false understanding of the facts. But it also reflects a misconception of the established law. Indeed, Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is ?yes.? The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance.

This principle was established by the United States in one of the most dramatic of the post-World War II proceedings, United States v. Altstoetter, the ?lawyers? case.? Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo. There are three major principles relevant to John Yoo?s case that appear from the charge, accepted by the Tribunal. First, the case dealt with persons under detention in wartime (not POWs, in fact most of the cases in question addressed persons not entitled to POW or comparable protections). Second, it had to be reasonably foreseeable that the advice dispensed would result in serious physical or mental harm or death to a number of the persons under detention. Third, the advice given was erroneous. In fact several of the lawyers in Altstoetter were able to articulate far better defenses for their erroneous legal advice that John Yoo had, but the standard did not require it to be ?outrageously? false, just incorrect.

Each of these criteria is satisfied with respect to Yoo?s advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. In his defense Yoo will certainly rest almost entirely on notions of immunity crafted in derogation of non-derogable international law. These arguments will work with courts in the ideological thrall of the Bush Administration, but not elsewhere.

However, my point here is not to make the prosecutor?s case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability. Edley's failure to appreciate that is very troubling. Yoo is protected by the political umbrella of the Bush Administration for the moment, which is to say, he is protected by his actual fellow conspirators, including those who continue to run the Department of Justice. That protection will expire soon enough, and it is highly unlikely that the Government which follows in its wake will be prepared to act quite so strenuously as this one in Yoo?s behalf.

But it is also unlikely that a U.S. prosecutor will in the current political environment, take up the criminal issues that exist here. That will more likely occur abroad. So Professor Yoo will want to think twice before boarding a jet for one of those stays on Lake Como of which he is so fond.

A final aspect of Dean Edley?s memorandum troubles me. He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. They can make great sums of money. They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis? Does he believe that they are free to follow their careers like legal pipefitters, dispensing the advice that their clients want to hear?and if it goes astray, well then, the problem is all the client's? Does he want a generation of Berkeley grads to think that writing up CYA memos for political friends is an honorable and proper thing--or at least something you can get away with, suffering no negative repercussions? This is exactly what some of the more unfortunate and ill-considered language in his memo suggests.

Much of the nobility of this profession lies in the duty of a lawyer to exercise independent professional judgment and to warn a client from an enterprise which is not merely foolish but at times actually immoral and criminal. Elihu Root famously termed this the lawyer's first calling. When confronted with a trying circumstance, John Yoo not only failed to give proper warning -- He became an active part of an enterprise bent on overriding the most fundamental legal and ethical prohibitions. Perhaps a criminal enterprise. And that is and will likely be seen by future generations as a far more troublesome matter than Dean Edley recognizes.

Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. His decisions are not wrong. But the words he chose to express them do little credit to the students and faculty at Boalt Hall.

Full post as published by Balkinization on April 12, 2008 (boomark / email).