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Tuesday, June 06, 2006

Kahan on Goldsmith and Yoo

Thanks to Orin, I see that my former evidence prawf and mentor, Dan Kahan, has posted his spicy commencement address up on the Yale  Law website.  Kahan, in seven snappy pages about chick-sexing, moral responsibility, and torture, comes down hard on Torture-Memo author John Yoo, though he doesn't name Yoo in the speech.  Yoo, according to Kahan's analysis, was a "bad lawyer" in part because he failed to accept moral responsibility for the content of his Torture Memo.  Specifically:

Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

In contrast to Yoo, Jack Goldsmith earns Kahan's plaudits.  Why? Because Goldsmith, when assuming the mantle of OLC, repudiated the Torture Memo as well as temporarily suspended the NSA warrantless wiretapping program.  Thus, despite the undeserved rough handling Goldsmith received at Harvard Law School upon his arrival from some faculty, Kahan thinks things are looking up at HLS:

Now that Goldsmith is there, I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it's much less likely any of you ever will either.

Notwithstanding my prior disagreements with him, I love Dan K.  But I can't say with the same confidence he does that Yoo's statement, by which he decoupled law and policy, is itself an evasion of moral responsiblity.  When I clerked, I often had to advise the judge about what the law permitted or restricted even though I had disagreements with the law's underlying policy choices.  No one would say it was "cowardly" to both register those disagreements (either in conversation or urging a special concurrence) or in being clear about what the law was and just recognizing the institutional role one occupies. 

So what is it about the context Yoo was in that removed him from that occupational safe harbor?  To Kahan, it seems as if the problem was that Yoo's role was going to have the effect of interstitially creating law that Kahan disagrees with fervently -- something judges often do also.  But the interstitial nature of the law propounded by the Yoo Memo is, like other law, subject to revision and repudiation in a democratic society.  And indeed, torture has been subsequently, and at least officially, more or less proscribed.  So it might be the case that if Yoo had to write the Memo again from scratch today, the Memo would come out differently.  (My very raw understanding of Yoo's thinking is that POTUS' Art II powers are plenary in the field of national security, and so perhaps Yoo wouldn't actually change his mind on the issue of torture, but I'm not sure.)  Here's my naive question: is the problem with Yoo that he failed to accept moral responsibility for the law he "created" or that his memo "created" a law that most people find repugnant?

Posted by Dan Markel on June 6, 2006 at 08:46 AM in Deliberation and voices, Law and Politics, Life of Law Schools | Permalink

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I'm copying below the comment I just submitted (awaiting moderation) at OrinKerr.com in relation to the subject matter. Coincidentally, I believe I address the question posed by Prof. Markel at the end of his own post.

With all due respect, I have to disagree with Prof. Kahan’s allocation of John Yoo’s performance in the Torture Memo in the category of acts committed by *bad lawyers*, if we follow Prof. Kahan’s definition of such, i.e., a lawyer who “[…] refuse[s] to take moral responsibility when he found himself in a position where his individual actions as a lawyer were likely to have a decisive role in shaping our profession’s situation sense, and thus in shaping the law itself. […]” (penultimate paragraph in page 6 of the PDF).

After reading the Torture Memo, many reviews of it by well-established specialists in the relevant field of Law, news reports, and John Yoo’s own reasoning of it, it seems clear to me that what we’re talking about here isn’t about morality, it’s about lawfulness. As a lawyer licensed to practice in a democratic state, you cannot advise your client to act against each and every precedent, each and every written norm in effect. And if you do so, you (the lawyer) should be judged as an outlaw, whenever it can be established (as I believe it can be in this case) that you deliberately ignored (or frivolously brushed aside) such norms and precedents.

Another completely different thing is when you write scholarly articles, where digressions about alternative interpretations of consolidated legal theories are not only a common practice, but a very welcome one, as long as the conclusion they reach are based on logic, consistent premises. But in the Torture Memo, everything was shaky, from top to bottom, and the resulting conclusions, when implemented by the recipient, had very clear, direct and tragic consequences. This Newsweek article (which you, Prof. Kerr, cited in the corresponding Volokh Conspiracy web post) establishes the timeline: http://www.msnbc.msn.com/id/11079547/site/newsweek/

Posted by: transatlanticlawyer | Jun 6, 2006 10:00:12 AM

and so perhaps Yoo wouldn't actually change his mind on the issue of torture, but I'm not sure

Ya think? Because he's had plenty of opportunities to retract his reasoning, and he's done no such thing. Quite the contrary.

Agreed, however, that Kahan's mischaracterized the nature of Yoo's failures. Would it not fit with his "legal realism" to make the simple point that the omission of *any* discussion of Youngstown Steel was, right there, grounds to question the validity of the entire memo?

Posted by: Anderson | Jun 6, 2006 10:40:47 AM

The problem is not that Yoo failed to take moral responsibility, but that he failed to take *legal* responsibility. The relevant norms that both guide Yoo's action and provide the standard for ex post moral appraisal are legal norms -- domestic criminal law, military law, international humanitarian law, and so on. That doesn't mean there is no moral content to the law. In fact, the law proscribing torture is highly moralized. International humanitarian law, for example, is intentionally structured in a seamless way, to avoid gaps in coverage (and made-up categories like "unlawful combatants"). It also explicitly recognizes the prohibition on torture as non-derogable, even in cases of national emergencies. Why? Because for moral reasons, the creators of this body of law have placed torture beyond the pale, as a crime that cannot be justified even in exceptional circumstances.

As suggested in the post by transatlanticlawyer, there is a difference between arguing for reasonable interpretations of legal norms to permit your client to do what it wants, and the style of interpretation engaged in by Yoo and Bybee. The Yoo/Bybee style is unconcerned with what a reasonable lawyer or judge would believe the law to mean; their only concern is to find some barely non-frivolous basis for unlimited latitude in the treatment of detainees. Here's where many lawyers respond, what's wrong with that? The answer is that it may be permissible (if not a very good idea, tatically speaking) to urge barely non-frivolous arguments in litigation, where there is an adversary and an impartial referee, but transactional and counseling practice is very different. Without adversarial checking, a lawyer in a counseling setting is in effect a private law-giver with respect to the client. Thus, it is completely disingenuous to claim to be justified with respect to litigation standards when one is acting in a counseling role. The role of any lawyer in a counseling role -- not just a government lawyer in a policymaking office like OLC -- is to tell the client what the law is, not what it might be in cloud-cuckoo-land if a judge accepted a whole string of highly implausible textual arguments, completely ignoring the substantive meaning of those texts.

As for Yoo's moral responsibility, that is a function of his role as a lawyer. A lawyer's moral responsibility is to respect the law, and interpret it in accordance with its meaning. I'm a positivist about both law and legal ethics: If a reasonable, good faith interpretation of the law permitted some of the torture techniques used by U.S. officials, then Yoo would be morally permitted to advise the government that it may use them. But that "if" clause is not satisfied here, so Yoo should be criticized on moral grounds, for failing to respect the law.

Shameless plug: I've written about this case and the moral/legal responsibility question in "Legal Ethics and the Separation of Law and Morals," 91 Cornell L. Rev. 67 (2005).

Posted by: Brad Wendel | Jun 6, 2006 10:53:29 AM

Brad argues, as David Luban did in a Slate article, that Yoo-the-counselor cannot justify his OLC conduct by citing the ethics rules that are uniquely pertinent to the litigator's role (MR 3.x and especially 3.1).

I agree completely. But, I've never heard Yoo raise that argument and I can't imagine he would. (Did he, does anyone know?) For that matter, I'm not sure that anyone has raised it in his defense. Certainly, no competent discipline defense specialist would ever cite the litigator's rules in defense of the memos. So I fear that the argument, while sound, is attacking a straw man.

The real action falls under 2.1, which is a short rule that captures several concepts. The lawyer shall render independent judgment, offer candid advice, express the lawyer's honest opinion, and so on. If Yoo really believed the advice he was giving, it's very hard to hang him on those aspects of that rule. To prove up a violation of that rule, we'd need to prove up a gap between what Yoo believed and what he said. My sense, and the sense of many commentators I've read, is that Yoo really believes what he wrote and that he wasn't of two minds (one undisclosed to the client).

But one of the comments to MR 2.1 is potentially relevant:

"Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost of effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied."

When considering how to apply those comments to the so-called torture memo, it's useful to recall that the Yoo-Delahunty memorandum on the applicability of the Geneva Convention to persons detained in Afghanistan was chock-full of policy considerations (pp. 26-30), even though the memo stressed that the lawyers weren't really tasked with analyzing policy. By partiy of reasoning, wouldn't a lawyer want to include those considerations when discussing torture? Wouldn't a complete silence on the obvious policy implications be, as the comments say, "inadequate"?

Note that all this analysis assumes that the OLC role was a traditional counseling role. But in fact, the OLC has a very odd and perhaps unique role as a sort of "law-speaker" for the Executive Branch. There's probably a good argument that the propriety of OLC lawyers offeing policy advice stands on a different footing than private lawyers offering their clients policy advice. Finally, I'm not addressing MR 1.1, the rule on competence, because I'm not an expert in the international law field. But it's worth noting that some commentators put primary focus on technical competence when anlayzing the OLC memos. For example, as Brad suggests, if the law itself incorporates moral norms, then leaving MR 2.1 aside the competent lawyer still needs to address those aspects of the law.

Posted by: John Steele | Jun 6, 2006 12:46:00 PM

The post-speech chatter is disappointing. It's not complicated. Kahan had it dead on. Geneva III and IV prohibit torture, period. No one is outside of Geneva. It is illegal and shameful to duck Geneva under a standing argument. Is our Executive obliged to carry out the supreme law of the land or not?

When your client, be it a government or a corporation, looks for gray area in an effort to prosper shame, stupidity, and contempt for what is obvious, first, you tell it no, in plain English words, and if it doesn't take the advice, you quit.

It is no accident that Yoo's legal ineptitude went hand in glove with stupendous practical uselessness. No one but a dandled and coddled academic like Yoo could imagine that beating people up gives you good information.

And so what do you have? Five years later, chicken farmers, sold for bounties, who havent been charged with anything, who will never be charged with anything, who havent been interrogated for three years, bein force fed at gitmo, while the inept crowd Yoo serve hope and pray for 2008, so that some adults can arrive to clean the mess they made.

John Yoo wouldnt last a single day in Camp One. And he has more to answer for than some of the men in their fifth year there.

Posted by: Sabin Willett | Jun 6, 2006 10:02:39 PM

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