Footnote 10 of the New Torture Memo

Enjoy this nugget:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 200 I).

Robert Delahunty? Where have I heard that name before? Was it when I said his legal reasoning was either incompetent or disingenous? Or maybe it was when I said I would be humiliated for my law school to be associated with him in any way, shape or form?

I wonder what Ivan, Yates, Eric, and Emily would do if the controversy arose today? Would they once again sign the Delahunty counter-petition, "oppos[ing] the attempt to block Mr. Delahunty's placement as a temporary professor"? Or would they agree with me that a man who gives advice like Delahunty's will be judged very harshly (if not by the law, then by history and by his contemporaries) and should be shunned by a school such as ours?

Let that footnote soak in for a while and get back to me. I'll be reading the rest of the memo.

Comments

[YF]

I get nervous whenever you talk about dismissing an already hired academic faculty member for professional work that may not (and I think you would concede probably didn't) violate the law or codified legal ethics.

[La Rana]

Lawyers have spent centuries cultivating the idea that they are not responsible for anything. YF is clearly more than willing to adopt this policy. Fortunately, some of us realize that enabling torture, as a purpose of anyone's actions, lawyer or otherwise, is to be condemned.

[YF]

You don't like the state of the law rana, write your fucking congressmen. But don't arbitrarily pick moral principles and use them to fire academics whose professional conduct offends your sensibilities

If Delahunty did such a piss poor job of advising his client on the state of the law on torture, then by all means, fire him. If lawyers advising the executive should be held to different ethical standards, then call the ALI. But I don't want to start firing people just because they engage in legal, professionally ethical conduct that violates your normative code.

[Nicholas Rogers]

I think I actually agree with you, YF, but you're moving the goalposts. My question to you was whether you would once again sign a counter-petition, not whether you would fire the man. Firing is neither here nor there.

I opposed Delahunty's temporary employment with our school, not because I thought there was a reasonable chance of preventing him from coming here, but because I thought it was a good way to stick it to the two-headed co-dean monster that shouldn't have made the job offer in the first place. THAT to me is the real issue. Had Charles and Morrison hired this guy knowing what they were getting, that would be one thing. But they had no fucking clue. And maybe some vague moral principle isn't grounds enough to terminate someone's employment, but surely it's a good enough reason not to make a job offer in the first place.

So, to back around to it: would you once again sign the counter-petition and publicly declare that to oppose Delahunty's hiring is to oppose a "diversity of viewpoint [sic]" and to deny the value of academic qualifications?

If the answer is still yes, then we can take it a step further: if you had been dean, would you have hired Delahunty? Would you hire John Yoo?

[YF]

My memory of the events is imperfect, and the counter-petition is vaguely worded. I believe that Delahunty's employment had been finalized, and that those seeking to block his temporary employment were in effect asking the Deans to fire him. If we start with the premise that Delahunty's employment had been agreed upon, and that "blocking his placement" is identical to terminating his employment, then I would still sign the counter-petition. My analysis changes if he was still a potential hire,and the merits of his prospective employment were being debated.

I recognize that adjunct professors are essentially at will employees, and that the Deans had every legal right to terminate his employment. I'm articulating a general policy argument that, in order to promote academic freedom, professors, even temporary professors, should only be fired for cause. Prior illegal conduct would certainly be cause, as would a breach of the professional legal ethics. Violating Rana's moral sensibilities would not.

[La Rana]

Why draw a line between "professional legal ethics" and my supposedly arbitrary moral sensibilities?

[yf]

lawyers consent to be bound by, and are subject to censure for violation of, codified legal ethics.

[La Rana]

In other words, you place value on consent as determinitive. I just see no reason why consent should be determinitive in this case. You can argue that my valuation (of a complete prohibition on torture as the only sensible way to deal with it) is fundamentally subjective, but I flatly reject the notion that "consent" is a more objective value than mine. It is more widely accepted, and is related in the sense that all lawyers are governed by consensual agreements that do not include my value, but it contains no more objective truth about how we should govern these sorts of interactions. Consent is essential in many situations, and will be determinitive in other situations, but it does not convince me that I should only make judgments in this case on the basis of those valuations he agreed to be bound by.

To put it another way, while you "don't want to start firing people just because they engage in legal, professionally ethical conduct that violates your normative code," we already are, and always will. The whole world is built on "moral sensibilities." I simply think that in this case mine is supported by a more compelling argument.

The only good rebuttal I can see - which relies on a different determinitive valuation - is that the guarantee of free speech is itself dependent on never acting on valuations like mine, but I didn't read you as making that argument.

[YF]

Not free speech, but academic freedom. Academic freedom requires that professors be allowed to discuss, proclaim and endorse unpopular ideas. Certainly you can argue that some ideas are so pernicious (say, a professor proclaiming a belief that whites are superior to blacks) that it benefits society to suppress them, I disagree.

Codified legal ethics are superior to your moral sensibilities in two ways. One, lawyers have agreed to be bound by them. Violating an agreement that you have agreed to abide by contains two misdeeds, the objectionable conduct itself, and the breach of your promise to abide by the agreement. Censure based on a violation of a consensual code has more authority than censure based on an alleged immorral action.

Second, and perhaps more importantly, determination of what the codified legal ethics are is a fairly objective process. We know what principles make up the binding professional ethics, they print them in a book and make us buy it as 2L's. How are we supposed to determine what actions are sufficiently immorral to merit censure? Should we appoint La Rana as supreme moral authority, and give him the power to issue edicts measuring the morality of an action on a case by case basis? Or perhaps popular rule; we can have a referendum on a biannual basis seeking popular determination of what actions are and are not moral (I suspect you would lose on the issue of torturing foreign nationals accused of terrorrism).

Ultimately, this is not about an academic's right to say what they want. It is about school officials, vested with legitimate authority to fire whomever they wish, voluntarily choosing to promote academic freedom by only firing professors for actions which break the law, or actions that violate a codified ethical code to which the professors consent to be bound. I think such a system is superior to dismissing officials whenever they promote ideas, or enable actions, that are labeled "immorral," and I think the cost to society in tolerating certain repugnant ideas is less than the suppressive alternative.

[La Rana]

I don't think academic freedom is something that can be meaningfully distinguished from freedom of speech. To the extent your argument that "the cost to society in tolerating certain repugnant ideas is less than the suppressive alternative" applies to the latter, it may be a superior value to mine in this case, as I previously acknowledged.

Your flailing around about "academic freedom," however, is little more than nonsense. If I might paraphrase?:

"Consensual legal obligations are superior because (a) they are consensual; (b) breach can be characterized in not one, but two ways; (c) ipso facto consentual rules have more authoritie! than other rules (whatever that means) (c) codified legal ethics are fairly objective because we have notice of them and they are in a book."

Consent does not motivate itself, notice is not objectivity, and neither consent nor objectivity is itself normative. You've put yourself in the bizarre situation wherein if we put my "arbitrary moral sensibilities" in a book that we make people consent to and buy, you would suddenly find them compelling (Cod-i-fied!!) while I would continue to insist that the best answer must have additional characteristics.

There is a weak argument to be made that a system of rules rooted in explicit consent should be determinitive in every case, to the derogation of all other values, but you've note made that case. You've only given me a few tautologies, a smattering of assertions and normativity-by-book-binding. You've got better than that, I'm sure.

[YF]

"You've got better than that, I'm sure."

Nope, if the ABA required licensed lawyers to abide by "The List of Things That Make La Rana Feel Sad," and published that list, then I would view a breach of said list a valid reason to fire a professor (assuming they had, in fact, consented, as they would if they had ever been a practicing attorney).

And dude, Freedom of Speech and Academic Freedom are two competely different ideas. They may be motivated by similar principles (although I'm not sure they are), but mentioning the two simultaneously just confuses things.

[La Rana]

You would enforce arbitrary moral sensibilities that are written in a book, to which the people subject to them have consented. I would add a few things to that book, for a few different reasons.

The pragmatic realities of enforcing rules suggest that they should be written down and (to some degree) consensual. That says nothing, however, about whether that set of arbitrary moral sensibilities, as written, is the best way to govern a society, let alone judge an individual. I, for one, think it not. What those pragmatic realities do suggest, as I alluded to before, is that enforcing unwritten, non-consensual rules is inimical to maintaining freedom of speech, which is itself a powerful value. In the interest of protecting this value, we (as an institution that benefits from freedom of speech - your unsupported assertions to the contrary) should not make these sorts of determinations on the basis of anything outside strict qualifications and those sets of rules to which the candidate consented.

This is a good, and probably compelling rebuttal to my argument. Your assertion that its either arbitrariness, or objectivity, or consent, or else notice, but always rules! there must be rules! is, well, not.

[La Rana]

We don't even have to make this determination if it turns out he's a war criminal.

http://www.salon.com/opinion/greenwald/2008/04/02/yoo/index.html

[Eric]

It appears I'm a bit late to the party -- lucky me. Nick, you know I'd sign the counter-petition again. You had to ask?

I had dinner with Prof. Delahunty a few weeks ago. He's no more immoral or crazy than any of the current faculty.