Sunday, April 13, 2008

Impeachment and tenure

Sandy Levinson

As I continue to try to think through where I stand on the John Yoo question, I find myself thinking of the standards for impeaching the only other people in contemporary American society who have lifetime tenure--i.e., federal judges. I take it that we all agree that it is illegitimate to advocate impeachment because we disagree with a judge's opinions and, indeed, believe they adopt a pernicious view of the law. If there is an exception to this rule, it is presumably if (and only if) we believe the judge's decision was truly "corrupt" in the sense of self-consciously rejecting what he/she believed, in all sincerity, the law requires in favor of a position that will help his/her political party or worse (such as responding to a bribe). Thus the controversy, for some, about Bush v. Gore, a decision I will loathe until my dying day. But how many of us would impeach the "Bush five," rather than settle for denouncing them? So, to bring this to the central matter under discussion:

Let's stipulate that there are all sorts of problems in the quality of the analysis offered by John Yoo in the two torture memoranda. Do we have satisfactory criteria for saying that they are worse than, among others, the following opinions of the U.S Supreme Court:

John Marshall's opinion in Marbury v. Madison (with regard to his interpretation of Section 13 of the Judiciary Act of 1789 and then Article III, both of which he misquotes);
Joseph Story's opinion in Prigg v. Pennsylvania (which truly establishes that the US is a "slaveholder's republic");
Roger Taney's opinion in Dred Scott (especially after reading Mark Graber's wonderful book on the case);
Joseph Bradley's opinion in The Civil Rights Cases (which returns African-Americans to the tender mercies of the white ruling class in the ostensibly defeated Confederate states);
the per curiam opinion in Bush v. Gore (nothing need be said);
John Roberts's opinion in Parents Involved (or, for some of you, Justice Breyer's opinion in same)(each of which basically accuses the "other side" of basic incompetence in their ability to understand and interpret the Fourteenth Amendment and prior cases involving same)?

No doubt others would offer other examples (perhaps Holmes's opinion in Debs v. US or Miller's in The Slaughterhouse Cases, for some people who actively participate in Balkinization discussions, Blackmun in Roe v. Wade, etc.).

The point is that very few, if any, of us, counsel that the authors of these these "performative utterances" (i.e., they actually established the law and were not merely opinions about what the law might be, at least for most members of the community that recognizes some form of judicial supremacy) be impeached. Why precisely not? And, more to the point, if we are so tolerant of truly egregious decisions by federal judges, then what, precisely, makes us less tolerant of John Yoo? It would be easy if we thought he was on the take or even being motivated by what would best help the Republican Party. But I think there is no reason to believe this and every reason to believe that he genuinely, if for many of us wrongly, believed that the highest security interests of the United States were involved. Compare, for example, the dissenting opinion of Chief Justice Vinson in the Steel Seizure Case, which viewed the Korean War as the first battle in World War II.

One might respond, of course, that all of these judicial decisions were public and Yoo's memo was decidedly not designed to see the light of day, but how does this affect the argument about impeachability/loss of tenure? Why is the author of a terrible, perhaps even evil, judicial opinion protected merely because his/her handiwork is public?

A side question: If John Yoo is vulnerable, then why aren't there calls for impeaching Jay Bybee, who obviously signed the first torture memo? And, for that matter, isn't there at least as much reason to view Bybee as being "improperly motivated" (by the desire to get his judicial apponitment) as John Yoo? Again, I emphasize that none of these questions is meant to be "rhetorical"?


1. Impeachment is a different standard. Professional dishonesty (faking research, plagiarism) is not a "high crime or misdemeanor" that gets a judge removed, but it gets a tenured professor removed, for instance.

2. A bad decision of a judge is protected by absolute judicial immunity. A lawyer who participates in a conspiracy to commit war crimes is not protected by absolute immunity.

3. The right analogy would be a judge that is part of the conspiracy, say, by taking bribes or agreeing to decide cases a certain way to benefit organized crime. And such judges certainly would be impeachable.

Why aren't we talking about the Impeachment of those who we know perpetrated these crimes? You dance around it, but war crimes is war crimes, and conspiracy is conspiracy.

If what most of us believe is true, is true, then these people must answer for their crimes against humanity.

Our first step would be Impeachment, which would then leave all the perpetrators of these crimes vulnerable to criminal and civil prosecution.

Why aren't we talking about this? What is wrong with America that we are allowing this treason against the U.S. Constitution, and us all, to go unchallenged?

These people took oaths to us, and they betrayed their oaths to us. Am I the only one this infuriates and saddens?

Bring on prosecutions! These people must pay!

Yeah, Sandy you keep doing the moral equivocation thing. And it's an easy game to make come out the way you want.

You're not making a list of other cases involving war crimes and alleged war crimes and comparing Yoo to that. And then saying: should we follow those examples?

You're finding other cases where the only similarity is potential removal. In fact, you're only listing cases where action wasn't taken and then saying: why should we take action about this?

I'm afraid you're in a bit of a logical fallacy.

You could just as easily make a list of cases where judges have been removed and say: why not do that?

One really has nothing to do with the other.

This is a case potentially about war crimes and, not surprisingly, these cases have had many parameters and results which are very rare in our history, particularly in international and global law and politics.

With the exception of the question about Bybee, the questions you ask are completely beside the point. The relevant questions are these:

Should we live up to our treaty obligations?

Should war criminals be prosecuted?

Do you believe in the rule of law?

Do you believe that the President of the United States of America has the right to secretly and unilaterally declare that I am an enemy combatant, kidnap me and my family, detain us indefinitely, torture me, my wife, and our children, and then illegally transfer us to the custody of a foreign government to be tortured, raped, and murdered?

John Yoo's answers to those questions were no, no, no, and yes. A U.S. government based on those principles is a far greater threat to the world than al Qaeda will ever be. Yoo and his compatriots have laid the foundation for a reign of terror like nothing that has gone before. I can do nothing about Justices Taney or Story, but I have a moral duty to oppose the evil that John Yoo represents.

Oh, and yes, Bybee should be impeached and then prosecuted for his part in the war crimes perpetrated by Bush, et. al.

Bybee is on my short list...which, by the way,keeps getting longer.

John Yoo did not believe himself to be writing opinion at the OLC, he described his memos as "statute". In other words, he was writing laws on behalf of the Bush administration, and one of those was requested in order to make torture legal.

Had any judge used his position to create law in order to make torture legal, that judge would rightfully face impeachment.

The Bush administration was well aware that internationally such 'statute' was illegal, that is why they were simultaneously unsigning the Rome Statute. John Yoo has made quite a point that he was not engaged in a theoretical exercise. They were even more aware later when John Paul Stevens wrote that their obligations to international humanitarian law precluded the lawlessness they were trying to push with their military commissions.

The only impeachments that need to be contemplated right now, are those of the President and his remaining "Principals".

Prof. Levinson,

I have been following the debate about John Yoo on some legal and academic/legal blogs (mostly Obsidian Wings and here at Balkinization) and it seems as if the consensus view of academics is that the great principle of lifetime tenure trumps all others. I strongly disagree. Setting to one side the broader question of the merits of lifetime tenure, I am curious how you would reconcile the limits which you place on removing tenured professors with the limits on professional activities established in the Nazi Judges Cases at The Nuremberg Trials.

The various reasons for refusing to remove Yoo from his tenured position at Bolt Hall (or to impeach strike me as highly artificial and quite similar to the various excuses offered by defense counsel in United States of America v. Alstötter et al. ("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)

Just as Yoo’s academic defenders point to the “principle” of lifetime tenure, the defenders of the Nazi Judges spoke (correctly, I believe) about legal positivism and the correct role of judicial review in German society. Many highly respected German scholars were very clear that in the German legal system, the responsibility of the judge is to carry out the laws of his country when those laws were adopted by competent authorities, even if the judge disagrees with the law. In short, they behaved “correctly” in judging in much the same way as you imply that John Yoo acted within acceptable limits in the giving of legal advise. Yet the German judges were removed from their positions and stood trial for crimes against humanity. Why can’t Yoo be removed?

So, why is this principle (lifetime tenure) so much more important than any other principle such as,say, the duty of judges and lawyers not to facilitate war crimes and crimes against humanity?

Moreover, does not the UC Academic Senate have the moral obligation to determine for itself whether one of its members was instrumental in facilitating the commission of war crimes and crimes against humanity?

If he did it we both think he did, he really ought to be bounced right out of the UC system. Right is right, wrong is wrong and tenure be dammed.

There is a large and very vocal segment of the population who would add Roe v Wade to your list of bad decisions. Then they would get just as incensed about "killing innocent babies" as you are about "war crimes". Then they would want to dismiss or impeach most of the faculty at most of the law schools.

The problem is that they are just as sincere in their believe that this decision and its consequences are indefensible as you are. If you accept their starting premise, the rest of their argument makes perfect sense.

This is why it is a really bad idea to confuse a political position, no matter how deeply felt and no matter how morally obvious you think it is, with an objective basis for private action by a university or professional organization. What some see with absolute moral certainty is not accepted by everyone, and government action should be reviewed only the government and the voters. You can't go shopping for a professional venue that creates a like minded subset of the population to punish such action simply because you are so damn certain of yourself.

Perhaps racism would explain why everyone is so eager to enforce all sorts of existing ethical/criminal/honor code laws on Yoo.

I'm not saying he doesn't deserve the book (very heavy treatise) thrown at him. But I agree that others have done as egregious legal analysis and just gotten off with criticisms in legal annals.

The man is a war criminal.

He deserves trial, disgrace, imprisonment-- not tenure.

Justice, in the formal sense, is unlikely ever to be done to the members of the Bush regime. Stripping him of tenure is a sort of emotional proxy for what we'd actually like to see done.

Probably it's not legitimate-- tenure is, after all, intended to protect even fringe viewpoints within one's field of academic endeavor-- but it's so much less than the prosecution he deserves.

Just a fast observation.

John Yoo is a professor teaching at a STATE university. Consequently, he had to swear a loyalty oath to uphold and defend BOTH the US and California constitutions.

Looks to me like he failed on point one.

It would be ironic if a legacy of anti-Commie hysteria actually was able to bite him....

Being neither American nor a lawyer, I still dare to comment on the ongoing debate:
(1) As much as I hate to say it, I do not think that Bush/Cheney should be compared however implicitely to Hitler and the Nazis.
(2) Rather, I see their grieveous transgressions in line of many presidential actions from early on, just to name FDR, RFK, LBJ, shining Ronnie and, yes, Clinton. But they seem to have pushed the envelope considerably more.
(3) During the War of the Balkans - an action, incidentally, I agreed upon - elder statesmen in my country like Chancellor Helmut Schmidt and Foreign Minister Hans-Dietrich Genscher thought the actions of NATO violated international law.
(4) But I do think that Professor Yoo's action should be prosecuted in court, (only) whereafter the University should take appropriate action.
(5) I am extremely wary of institutions other than the courts taking it upon them to double or substitute the courts' action.
(6) You might want to doubt the courts' impartiality in the current political climate but how about the impartiality of university institutions acting in a politically charged-up atmosphere?
(7) I think Glenn Greenwald hit it in his Salon blog right on point: Yoo is not the principal in this whole affair. It goes a lot deeper - and don't get me wrong, I am far from crowing about the necessity for soul-searching GG is advocating. But there is some element of vicarious lynching in this Yoo-business. As we will never get the principals, let's at least get the Lyndie Englands of Bush/Cheney's America.
(8) Having observed all this, I would like to commend all sides of this thoughtful and stimulating discussion for honestly searching the truth. Thank You all!

Howard, you are in the same logical fallacy as Sandy.

You are in essence saying: Hey, if you do that, then we'll try it too for other decisions.

And... what does that have to do with whether or not Yoo might be convicted of war crimes? Abso-lute-ly nothing. People are free to pursue any legal remedies they wish for any decision.

You will find, though, that society at large presently puts war crimes at top of the list as a greater violation than almost any crime against humanity.

What you're really saying is some people we'll say "no fair we want to pursue this also." As I said, they're free to try and do that. But ultimately, I believe you're saying if they can't have what they want, why should we pursue other cases like war crimes?

You're arguing for legal paralysis as a solution to making everyone satisfied. Unfortunately, a legal system where everyone gets their personal views worked out... does not work.

Yikes. I don't know if you read this far down in the comments, but to actually respond to your question:

I think the real difference between judging and the memo is that we think of judging as retrospective, passing judgment on things that have already happened. If Yoo have been writing his memo to justify the decision not to prosecute agents who had engaged in torture ("Well, looking into it, we've decided they didn't break the law after all..."), we might not feel as we do. He'd at most be an accessory after the fact, ratifying otherwise faits accomplis.

But Yoo's memo was prospective. While certain practices were already being performed, Yoo's memo was designed to immunize those prosecutions that happen in the future. He is therefore a but-for cause of these actions.

Now, it's true that judging is not always retrospective. Even formally retrospective opinions can create precedent with prospective effect. But it doesn't involve the judge quite the same way in the specific acts. The more troubling case is this: imagine the opinion were of a judge lifting an injunction forbidding torture.

I don't know if this is ultimately a defensible position, but I think it best describes my intuitive reasons for distinguishing those cases.

PS: With Bybee--can you be impeached for something you did while holding a different office?

Having Prof. Yoo teach a full schedule, and participate in all of the usual duties of a law school faculty member at Boalt Hall, would seem to be, if not fitting punishment, nonetheless, a measure of punishment for his misdeeds.

41 years old.... 24 years till retirement. Nine months a year, five days a week, eight hours a day....that will be a difficult tour.

Yoo should have his tenure revoked for participating in a conspiacy to commit war crimes and for his specific role in providing legal cover for that conspiracy.

I think Dilan got the basic points in the first post. I'll just add that even if I accepted the validity of all your examples (I don't), the existence of multiple other wrongs would not justify Yoo.

Many of your examples depend on the application of modern standards to previous eras. That's fine for moral judgments, but it doesn't work for laws. Slavery certainly should have been a crime in 1857, but it wasn't. Torture certainly is a crime today and has been for hundreds of years.

If we had applied your suggested standard, the Nuremberg Trials would have been impossible. Albert Speer spent years in prison for using slave labor, yet the US, of all nations, was in no position to judge that conduct if it had been bound by past wrongs.

I also agree with others that John Yoo is a target, but should not be the only one. He's a good start, though.

I am reluctant to opine on the requirements for removing a tenured professor as this is hardly my area.

However, I would ask our professors if they know of any example of a school of law removing a tenured professor of law merely for drafting an opinion of law with which the school disagreed?

In short, is there any precedent at all for removing Professor Yoo from his position at Berkeley?

Thanks in advance.

Somewhat further to Bart DePalma's comment, but do any of the proponents of depriving Prof. Yoo of his tenured position really believe that such an action would be upheld in court? And if not, what does that say about the ethical standards of those who urge a public institution to violate its legal obligations? And if so, what does that say about the professional competence of those who cannot predict the rather obvious outcome to the resulting litigation?

Bart, that's a strange construction of words since you're putting your own opinion into the question ("merely drafting an opinion of law").

I know you believe that Yoo was "merely drafting an opionion of law". And there are others that believe he actively engaged in war crimes.

In my opinion, I think you're asking questions to get the answer you'd like - clearly if you asked almost anyone "If someone was merely drafting an opinion of law, should they be removed?" you're always going to get the answer "no."

But first, if the university did begin an inquiry, they would need to investigate and decide what Mr. Yoo did or not do.

Instead of asking questions to get answers you want, I think it's better to ask questions to reveal something new.

Some, I think, better questions:

Have other tenured professors ever been investigated at a law school? Are there any notable examples of a tenured professor in a university setting being removed for non-criminal behavior?

I think the answers to these questions would probably add credibility to those who might feel it is uncharted territory. Personally, I don't think that's relevant, but I think you would find it helpful.


Those who have slandered Professor Yoo with accusations of criminal conspiracy and war crimes have yet to offer even prima facie evidence of the elements of those crimes. Thus, I could care less what they think.

The only evidence we have if any crime or malfeasance is the fact that Yoo drafted legal opinions with which many disagree with as a matter of policy and against which very little contrary legal authority has been offered.

Thus, I believe the form of my question was correct.

As I said, you're essentially asking: If someone is innocent, should their tenure be revoked?

It's a fallacious question. I'm not even sure why you want to hear the answer to it. In fact, why do you want to hear the answer to it?

I know you don't care what they think. That's kind of the problem. You think only what you think matters. And we have a form of democracy where things don't work that way.

Regardless, if the university did an inquiry, they will not be starting will a question that already has conclusions in it. That is unethical. If the university did begin an inquiry, they will need to investigate and decide what Mr. Yoo did or not do... before deciding on any action to take.


I am not arguing a position at all as to whether Berkeley can or should remove Yoo. I am simply asking those with far better knowledge than I whether a school of law has removed a tenured professor under facts even remotely similar to this, regardless of how one might characterize those facts.

". . . . I think there is . . . reason to believe that [Yoo] genuinely, if for many of us wrongly, believed that the highest security interests of the United States were involved."

I find it impossible to believe that intellectual honesty is instead good faith. And I find it impossible to believe that good faith, and actual concern for the security of the United States, were the reasons for suppressing the Yoo memo instead of releasing it with suitable caveats as to "necessity".

We have a thoughly dishonest -- and criminal -- "administration, motivated before all else by a drive to establish its anti-American idiological view as the "norm" for the US and the world. The claims for the illegal wiretapping are premised upon 9/11 and "necessity," though in fact the illegal wirtapping began in Februrary, 2001, at least 6 months prior to 9/11.

Nope: Bart notwithstanding, there are no excuses to be had by the Bushit criminal enterprise and its activists in the bowels of the gov't.

"PS: With Bybee--can you be impeached for something you did while holding a different office?

"# posted by Andrew"

Why not? Suppose Bybee had worked in the Gonzales/Yoo DOJ and as consequences was in part directly responsible for the flatly illegal torture, maiming, and death of a hundred of so persons not legally adjudicated of anything whatsoever including guilt?

Um -- I rest my case.

"Those who have slandered Professor Yoo with accusations of criminal conspiracy and war crimes . . . ."

Yoo hasn't been slandered by those making the allegations based upon the abundant evidence, which includes Yoo's own near-boastful statements on the issue. He has simply been accused based upon the abundant evidence, which includes Yoo's own near-boastful statements on the issue.

"have yet to offer even prima facie evidence of the elements of those crimes. Thus, I could care less what they think."

In fact, that prima facie case has been repeatedly made, often in direct response to and refuting of your constant lying against the facts and law.

And you have as often rejected and lied about that fact precisely because you "don't care" not only what "they think," but also don't care what the law is when one of your ilk voluntarily puts his balls into the legal meat grinder of actual law and puts himself at risk of being prosecuted for being the war criminal that Yoo is.

"The only evidence we have if any crime or malfeasance is the fact that Yoo drafted legal opinions with which many disagree with as a matter of policy and against which very little contrary legal authority has been offered."

The Geneva Conventions are sufficient legal authority against it, Bart. The fact that torture cannot under any circumstances be made legal are sufficient legal autority against it, Bart. And you know it, except that your dishonesty knows no bounds when it comes to defending the criminal anti-Americanism which is nearly every action taken by the Bushit criminal enterprise with the wholehearted and enthusiastic criminal support of such as Yoo.

"Thus, I believe the form of my question was correct."

The form of your question is the form usde by a wheedling child who endeavors to ensure the outcome of his demand, which demand is transformed into polite-appearing but intellectually dishonest request.

Ethicality prohibits your assertions being anything other than hypotheticals.

Do the majority here care what you think, Bart? No. But then again, the majority here already know what the lie will be before you open your mouth so it can crawl out.

Dear Professor Levinson,

Since the last UK invocation of impeachment as a remedy was that of Lord Melville in 1806, I rather suspect that we can safely say that this remedy has fallen into disuse in the Mother of Parliaments, although there was an “impeach Blair” movement which, alas, never developed sufficient momentum.

I understand that things are done differently in Texas and that a Governor was successfully impeached there as recently as 1917 and that a bill for impeachment of Governor Clements was introduced quite recently on some matter connected with what Americans think is football, so I will defer to you on all matters related to impeachment.

I understand that even in Texas the usual remedy against a judicial decision is by way of appeal and that while Texans are still happy with judicial murder they do not customarily murder their judiciary – but simply refuse to re-elect them.

I think that Academia in the USA has a lot to answer for in this matter.

By taking the considerably more than 30 pieces of silver from extreme right foundations on terms that off the wall fruitcakes like Robert Bork were allowed to teach, heretical doctrines like originalism have been allowed to take root and flourish in the USA – with dire consequences, the peverted works of Messrs Yoo and Bybee being just an example.

On another thread, I drew attention to the Speech of Lord Hoffman in A & Ors v. Secretary of State for the Home Department [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221 which began:

"On 23 August 1628 George Villiers, Duke of Buckingham and Lord High Admiral of England, was stabbed to death by John Felton, a naval officer, in a house in Portsmouth. 35-year-old Duke had been the favourite of King James I and was the intimate friend of the new King Charles I, who asked the judges whether Felton could be put to the rack to discover his accomplices. All the judges met in Serjeants' Inn. Many years later Blackstone recorded their historic decision:

'The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England'.

That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria.”
[emphasis added]

If a university in the USA is so unconcerned with the honour of the state and the law that it considers it acceptable that one of its teachers can write a memorandum the purpose and effect of which was to “corrupt and degrade” the state and the US legal system AND then, with knowledge of that fact, permit him to continue to teach constitutional law to those who will be the future lawyers and judges of your country, then I weep for the future of your nation.

This is the next step on the primrose path which led German lawyers of my father’s generation to trial and conviction at the hands of the United States of America – see America v. Alstötter et al. cited by Mitch above.

When considering what to do with Professor Yoo, it would therefore be apposite for the academic authorities to have well in mind the words of Edmund Burke : "All that is necessary for the triumph of evil is that good men do nothing."

And perhaps also the words of Pastor Niemöller:
"First they came for the Jews and I did not speak out because I was not a Jew.
Then they came for the Communists and I did not speak out because I was not a Communist.
Then they came for the trade unionists and I did not speak out because I was not a trade unionist.
Then they came for me and there was no one left to speak out for me."

Bart, twisting in the wind while hoisted on his own petard, screams as if being tortured by actual reality:

"I am not arguing a position at all as to whether Berkeley can or should remove Yoo."

True. You want to avoid the issue entirely, in behalf of war criminal Yoo. Short of that, you'll tell any lie against the facts, in behalf of Yoo, and the war crime of torture so long as used on brown people who have a "wrong" "religion," and who you are istructed to hate simply because the instructors are of the political party to which you adhere.

Party before not only country but also before rule of law. Anything goes, so long as not done by a Democrat.

"I am simply asking those with far better knowledge than I whether a school of law has removed a tenured professor under facts even remotely similar to this, regardless of how one might characterize those facts."

You mean, like, has there been a law professor whose tenure was revoked because he participated in a conspiracy to commit the war crime of torture, and wrote a legal memo rejecting the rule of law in order to cover for those -- including himself -- who were and are committing that war crime?

Probably not, Bart. Even most of the worst of lawyers would probably be opposed to the use of torture (other than that suffered by their clients), and perhaps even opposed to lying against the law in order to falsely make it appear legal, as Yoo did and doubtless still does.

But the proper question is whether Yoo -- not everybody else but Yoo -- should be subject to revocation of tenure for being a war criminal.

I say yes, based upon thorough above-board invetigation, and all the evidence, including relevant memoes he authored and which continue to be suppressed. Do you think the Bushit criminal enterprise will cooperate with that investigation by providing relevant evidence -- or will it again obstruct justice as quid pro quo "thank you" for Yoo's falsely legitimating the war crime of torture??

I really don't see what the issue is. There is certainly prima facie evidence that Yoo committed a crime. If instead of sending the memo up the chain of command, he had published it in the Harvard Law Review, it would have been neither a crime nor a reason to revoke tenure. If he had been a judge and published the memo as a legal opinion, he might have been very wrong (and been overturned) or been very wrong (and not been overturned ) but it would not have been a crime because we do not define badly reasoned judicial opinions, or even wrong ones (see Bush v Gore) as crimes.

Even if you believe Dredd Scott or Roe v Wade were immoral or caused innocent death they were not crimes under US law.

But the criminal nature of Yoo's act in writing the memo as a member of the government to justify torture does not require any novel legal reasoning

But the criminal nature of Yoo's act in writing the memo as a member of the government to justify torture does not require any novel legal reasoning

# posted by David

Bingo! Which is precisely why all we get from Bart is novel legal "reasoning".

I suspect he hopes it will get him appointed to the US SC.

Off-topic but I have long believed (and continue to believe) that Congress has the power to set standards of good behavior and procedures for removing judges without going through the impeachment process.

Anyway, I have no idea how one can set a standard for when it would be appropriate to remove a judge for a judicial decision, unless it involved commission of a crime or violation of the special rules of judicial ethics.


Bingo! Which is precisely why all we get from Bart is novel legal "reasoning".

I suspect he hopes it will get him appointed to the US SC.

He's on another planet. I suspect he fancies a stint as Solicitor General in a McCain maladministration. Surely enough, he's paid his dues in full on Greenwald's blog (where he got booted for his antics) and here....


I'm with Seth. I also am a just a wee bit tired about this "oh this is so hard" tone of some of the discussions.

Yes, I think it is not THAT hard too explain how Yoo's briefs were much worse than Marbury et. al. And, for various reasons, akin to the reply in one thread that noted the FDR's advisors openly made their case.

Alan D., he of the "torture warrant" fame along with the Vincent B. of Helter Skelter fame both wrote books that suggested Bush v. Gore was a conspiracy of sorts.

If so, especially since the five directly benefited and it involved an eminently "political" matter, impeachment very well could have been correct there.

Inertia is sooo easy. I'm sorry to say, this sort of thing really underlines the point of how this has gone on so long ... people are so afraid to take harsh action since hey it's sorta like what happened before, so maybe it's not right to do so.

Dear Prof. Levinson:

I respect your knowledge as a legal scholar. Further, I appreciate that you are living in the artificial, cloistered, hothouse environment of the academy -- if U.T. is anything like the U of Washington was 30 years ago, so that you end up, even if not intentionally, treating this as a sterile intellectual exercise.

But those of us in the real world of the law see it much more clearly, for exactly what it is.

You have examined this as though Yoo's memo was the run-of-the-mill intellectual twaddle that comprises all too many law review articles. Since such has no effect on the real world, we let law professors say anything they want.

But this was not a mere theoretical exercise. Yoo was deeply enough involved in this matter to know exactly what his memorandum was going to be used for -- to justify and facilitate the torture of human beings.

Despite full knowledge of that, he produced a legal memo which made no attempt to indicate that there was a wealth of legal scholarship that was directly opposed to his ludicrous analysis.

He went so far as to make the claim that international treaties signed by presidents, and ratified by the Senate, could not bind a president. And so what if the Constitution makes treaties part of the supreme law of the land.

As I wrote in a letter published in the San Franciso Chronicle about two years ago, there is no real difference between what Yoo did and what a "Mafia mouthpiece" does. Both are deliberately advising their clients on ways that they might get away with violating the law.

This has absolutely nothing to do with academic freedom, despite the words of the Boalt Hall dean to the contrary. This has everything to do with a man who willingly disregarded the law, to help violation of the Geneva Conventions.

Undeed, under your reasoing, a Nazi lawyer advising on the legalities of gas chambers would be entitled to every bit as much "academic freedom."

As the political right is so fond of pointing out, there are lines between good and evil. And people must take the consequences of their actions. There are several enlisted people currently in military prison for carrying out Yoo's legal advice.

On what possible moral or ethical grounds should a public institution allow this to continue. YHour analysis has transformed "academic freedom" as a license to commit any number of crimes, so long as you have a good law school record behind you.

Please, professor, come out to the real world once in a while. It would help your analysis.

Ross Taylor, Attorney
Tacoma, Washington

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