UMN Law Blog Roundup on Delahunty
Friday, December 8, 2006 at 10:44AM There's quite a diversity of opinion.
jmag thinks opposition to Delahunty is hateful intolerance because he knows Delahunty personally and "he's a good man."
Ivan thinks that "the key point" is that Delahunty "seems to think he was right and there appears to be a decent basis for that belief, since there is support in the scholarly community (e.g., Michael Paulsen) and the judicial community (e.g., the four Hamdan dissenters) for that view."
La Rana says that "[t]he ethical charges against Robert Delahunty are very weak. The complicity charges are stronger, but still relatively weak. The charge of questionable personal ethics is very strong, and legitimate."
Emily is angered by the opposition to Delahunty and ashamed by the "efforts by the other side to maintain Delahunty's employment."
Law Revue is torn over the issue and mostly doesn't care who teaches 1Ls.
Eric thinks that it "goes beyond any deserved criticism" to characterize the Delahunty/Yoo memo as "legally baseless".
I continue to maintain that the arguments made in the Delahunty/Yoo memo, on close examination, could not have been made in good faith by anyone familiar with the Geneva Conventions and are legally baseless. I further resent the attempt to characterize opposition to Delahunty's hiring as opposition to academic freedom. His work, in my judgment, "reveal[s] an instrumental attitude toward the law that is at odds with the attitudes and dispositions toward the law that we presumably seek to inculcate in our students."
Many who reject the ethical arguments against Delahunty hang their hat on the split decision in Hamdan. This is due, at least in part, to the letter distributed by the law school faculty members in opposition to Mr. Delahunty that cited the Hamdan decision as evidence of Mr. Delahunty's unethical behavior.[1] However, the fact that the Hamdan Court was split does not mean that the dissenters endorsed the Delahunty-Yoo memo. In fact, quite the opposite is true. The faculty members should have pointed out that, in Hamdan, the Solicitor General's brief conceded that the President rejected the conclusions of the Yoo-Delahunty memo.[2] As this view of the memo was undisputed by the parties in Hamdan, it seems inconceivable to think that any member of the Court took a different position (and if they did feel free to leave me pincite in comments).
[1] "We note also that in Hamdan v. Rumsfeld, the U.S. Supreme Court rejected the conclusions of the Yoo-Delahunty memo . . . ." (Faculty Letter of November 29th)
[2] " Because the United States and Afghanistan are both 'High Contracting Parties,' the President determined that the Convention could potentially apply to Afghanistan's Taliban regime. " (If you have access to WestLaw, this can be found at 2006 WL 460875, *40).
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Reader Comments (5)
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I wrote this shit earlier today on my intl HR final...now after reading this article there is NO way I'm not getting an A+ from Weissbrodt. Unless he doesn't like the Chosen People, which would be ironic, and would fuck me.
And now, back to stu...incessantly checking the internet for AI to the Wolves rumors.
What I want to know is why no one's taken a look at this piece by one of the Nine Faculty: 112 Yale L. J. 1011. If Delahunty's a war criminal, at least he'll be in good company!
U. Minn
As much as I'd love to take a break from studying for finals and pour over a 117 page long article that you CLAIM is somehow relevant to this discussion, why don't you save me the time and summarize the salient points? Or direct me to a particular page at least?
A cursory glance at that article by Professor Gross reveals no obvious support for your implicit assertion that he and Delahunty share some view of the world that makes them both war criminals.
I've been careful NOT to call Delahunty a war criminal on this blog, but even so it's important to note that an OLC memo and a law review article are not equals. One is an authoritative statement of what the executive branch, all 817 agencies, considers "the law". The other is scholarship intended to influence scholars and policymakers, but its authoritative value is marginal. Even if Gross had said the exact same thing as Delahunty in that article (which doesn't seem to be the case) -- SO WHAT?
First and foremost, it seems that at least some of the legal advice offered to the DoD General Counsel in the Delahunty/Yoo memo was given as a result of either bad faith or incompetence. The dispositive evidence here is the conclusion reached by Delahunty and Yoo, in January of 2002, that there was no genuine question of fact or law as to (athe status of the Taliban as the de facto government of Afghanistan, and the status of Afghanistan as a failed state. These are both very dubious assertions (indeed, later OLC memos seem to acknowledge such doubt). The reason that they are important is because the plain text of Article 5 of Geneva III requires that "[s]hould any doubt arise as to whether persons...[are protected under this Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." It is telling that Article 5 is not cited anywhere in the Delahunty/Yoo memo, and in fact no such tribunal was set up until July 2004. Delahunty and Yoo do cite to Article 1 of Geneva III, which obligates parties to "undertake to respect and to ensure respect for the present Convention in all circumstances." They get around this language by arguing that "[t]here is no textual provision of the Geneva Conventions that clearly prohibits temporary suspension."
I'm sorry, but you can't be familiar with the Geneva Conventions and think that this is a good faith analysis. Remember, the entire analysis is framed in terms of avoiding criminal liability for American military personnel under the War Crimes Act while conducting "long-term detention[s]" at Guantanamo Bay. In this light, the flawed analysis I've highlighted above seems to be advice to a client about how to break the law and get away with it. This is the very definition of unethical lawyering. (NOTE: I do not address here the other conclusion reached in the Delahunty/Yoo memo, namely that the Geneva Conventions don't apply to al-Qaeda. This is a much different question that reasonable people may disagree over.)
The second argument against Delahunty is that he has poor personal (as opposed to professional) ethics, as evidenced by his complicity in providing a legal framework that ultimately allowed torture to be implemented as a matter of policy (what I've referred to elsewhere as his being the "midwife" to the torture memo). Admittedly, this is a much weaker claim, but, for me, it would be a sufficient reason to not hire an individual. The article by Professor Gross that you keep citing to (albeit rather imprecisely) might be relevant to this argument, but only if (1) it actually says what you claim it does (doubtful), and (2) if you could establish that Gross, if given the chance, would implement such policies. If not, I don't see the relevance: it isn't what Delahunty THINKS that makes him unfit to teach at my law school. It's what he's DONE.