E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Several legal academics, including Cass Sunstein and myself, are quoted in this New York Times article by Adam Liptak on the OLC and Defense Department torture memos. Cass, by nature a gentle soul, does not mince words here: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless." John Yoo, who worked at the OLC when the memos were written, dismisses the criticisms, saying they were mostly "political rather than legal."
Beyond the simple incompetence of these memos, however, is their misunderstanding of the duties of Justice Department lawyers. The Justice Department does not represent the President. It represents the nation. The Justice Department, and particularly the OLC, is not supposed to tell the President how he can get away with whatever he wants to get away with. Rather, its job is to explain to the President how to ensure that the laws be faithfully executed, as the U.S. Constitution puts it. These memos fail that test. Indeed, they go out of their way to make questionable claims about the scope of the President's power, arguing at one point that far from having a duty to faithfully execute the laws, the President is not bound by them at all. These memos do not read as if the authors were acting as counsel for the nation. They read as if someone in the White House told them to write a memo that stretched the law as much as possible in order to conclude that the President can do whatever he wants.
These memos make bad legal arguments. But quite apart from their incompetence, they are also bad lawyering; they misunderstand the ethical role of the government lawyer.
I wonder if the torture memos have prompted any second thoughts from Mark Tushnet, who argued in Taking the Constitution Away from the Courts that the constitutional interpretation from the executive and legislative branches should be given more weight.
On the one hand, it strengthens his argument that conceiving constitutional interpretation as the sole province of the judiciary weakens the perceived responsibilities of the other branches to defend the constitution.
On the other hand, do we really want to give any credit to institutions that are capable of acting this badly? Of course, given the quality of opinions coming from the Supreme Court lately (Cheney), it might not be much better.
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