Legal Commentary

Thoughts on the Reverse Yoo Hypothetical

By Orin Kerr

The comments on the Reverse Yoo hypothetical are fascinating, and I wanted to try to draw some tentative conclusions from them. The most interesting result to me is that for a lot of Yoo?s critics, whether Yoo followed the law or not is mostly beside the point. The primary objection is that Yoo?s conduct permitted an act that they see as immoral. This is an interesting result because Yoo?s harshest critics generally frame their criticisms of Yoo using legalisms: He ?defied the law,? is a ?criminal,? is a ?war criminal,? must be ?disbarred,? etc. These are all legal terms and legal concepts. And yet the answers to the Reverse Yoo post suggests that to a lot of these critics, their primary objection is not to the law, but rather to morality. Yoo must be punished because he is morally blameworthy, quite apart from whether he violated the formal ?law.?

The rub is that there are two competing conceptions of morality here. To the harshest Yoo critics, the moral evil is waterboarding. Waterboarding is evil, so stopping it is a moral good and facilitating it is a moral evil. But to Yoo?s strongest supporters, the moral evil is terrorism. Sitting by and letting innocent Americans die from attacks when you could stop them is a moral evil, while stopping the attacks is a moral good. Further, each side denies the legitimacy of the other by making factual assumptions that undercut the other?s premises. To Yoo?s opponents, it is gospel that waterboarding doesn?t work, so waterboarding does not really further a moral good. To Yoo?s supporters, it is gospel that every person waterboarded is an evil terrorist, so waterboarding does not really inflict a moral wrong.

If I?m right about this, then I think it helps explain why we?re doomed to run around in circles with the John Yoo/torture question. To a lot of people this isn?t a legal issue, even if it?s framed in legal terms. Rather, it?s a moral question presented as a legal question. And it?s a moral question on which public opinion appears almost exactly evenly divided: According to a 2009 poll, 50% of the public approved of how the Bush Administration interrogated terrorist suspects and 46% disappproved. With each side resting its views on one moral conception and denying the legitimacy of the other side?s view, we?re destined to run in circles presenting competing moral arguments as legal arguments.

Full post as published by The Volokh Conspiracy on March 01, 2010 (boomark / email).