John Yoo's Right to Give Bad Advice


At a Manhattan Institute website devoted to higher education, civil libertarian (and reason contributor) Harvey Silverglate takes a skeptical look at calls to discipline, disbar, fire, or prosecute former Justice Department attorney John Yoo, now a Berkeley law professor, for his advice regarding the president's authority to torture prisoners and otherwise flout the will of Congress and/or the Constitution. Although severely critical of Yoo's views on executive power, some of which he calls "laughable" and "ludicrous," Silverglate approaches the issue as "both a criminal defense lawyer, with a vested interest in ensuring that a fellow member of the bar is dealt with fairly, and as a frequent critic of higher education's often evident contempt for academic freedom." He argues that proving Yoo gave his legal advice in bad faith, as required for prosecution and probably for disbarment as well, would be very difficult. Silverglate also warns that an investigation by his employer could have a chilling effect on academic freedom and set a bad precedent for partisan attacks disguised as ethical policing. Such inquiries would in any case be fundamentally misguided, I think, given the impressive ability that human beings have to convince themselves that what's convenient for them (or their bosses) is also what's right.

John Yoo's vision of presidential power scares me, but so do partisan attacks on freedom of speech.


NEXT: Suing the DA

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  1. College campuses are notorious as left-wing indoctrination centers, brainwashing our youth with radical leftist propaganda like “rule of law” and “human rights”.

    Congratulations to Berkley for providing at least one conservative a voice to teach both sides of the controversy.

  2. If Yoo was participating in a program of torture, then he should go to prison.

    Whether or not they revoke his tenure will be sort of irrelevant at that point, as he won’t be able to show up to class.

  3. John Yoo’s vision of presidential power scares me…

    Well obviously, once you punish Yoo, everybody else will be too scared to share his vision. Duh.

  4. What constitutional protections do terrorists have?

    That’s what Yoo was asked, and all he did was answer it.

  5. The Constitution does not exist to confer protections on specified individuals. It exists to impose constraints on the state.

  6. Fine, summary execution it is then.

  7. Summary execution? How can the dude abide that?

  8. The Chinaman is not the issue here.

  9. If a doctor was asked to design an effective torture program, and then that protocol was later implemented by those who solicited it, then even if the doctor did not participate in the torture he is complicit.

    Why do lawyers get a free pass?

  10. We’re not talking about a guy who built the railroads here.

  11. Say what you will about the tenets of Unitary Executive theory, dude, at least it’s an ethos.

  12. thoreau @ 4:06pm: i wholeheartedly agree.

  13. also, uh, dude, keeping an amphibious, uh, rodent, uh, within the city, y’know — that ain’t legal either.

  14. If he is found to have advised his client to behave illegally, I don’t think he does get a free pass. The question is whether he did that. An even larger question is whether everyone involved has violated federal statutory and Constitutional law, which would be, of course, actionable.

    I think he did provide such advice, but I’m not one of these people who thinks we need to torture terrorists or others. Certainly not as a general rule.

  15. I agree with Silverglate’s analysis, but he’s too eager to trivialize Yoo’s “analysis.” Advocating torture is not “ludicrous” or “laughable.” It’s grossly immoral. Furthermore, Yoo’s methods — citing himself as authority, using hypotheticals to support policy recommendations — were disingenuous in the extreme. His defense — that what he proposed was “boilerplate” — is a perfect illustration of his intellectual dishonesty. Berkeley is probably stuck with Yoo, and he will be happy to serve up “ludicrous” and “laughable” boilerplate for the next 30 years. One can only hope that no one attends his classes. Let the market decide, eh?

  16. so – there is an actual law on the books forbidding lawyers from giving unlawful advice? if so then where’s the ambiguity? he broke that law for sure, didn’t he? that’s why he’s claiming that it was purely hypothetical, when in fact it was after-the-fact justification that formed the basis of their after-the-fact proposed legal framework, which they operated under, but that was, well, illegal. right?

    now, that doesn’t mean the university should fire him. i suppose they could if they wanted to, if they felt he was a law breaker purporting to teach law to students and setting a bad example. same for disbarrment, isn’t what he did considered unethical by the agreed-upon standards of the bar?

  17. Advocating torture is not “ludicrous” or “laughable.” It’s grossly immoral. Furthermore, Yoo’s methods — citing himself as authority, using hypotheticals to support policy recommendations — were disingenuous in the extreme.

    For your information, the Supreme Court has roundly rejected prior restraint.

  18. Look, just as the person who was “just following orders” doesn’t get a free pass, neither should the person who was “just giving orders” (or writing the memos used as the basis for those orders) get to hide behind the 1st amendment.

    The first amendment doesn’t protect the person who orders somebody else to commit a crime on the grounds that the orders were spoken or written.

  19. I understand the argument that the school has no legal duty to investigate/fire Yoo. However, the bar association oughtta disbar the man post haste. If ever someone has shown he shouldn’t be a lawyer, it’s that guy.

  20. “””What constitutional protections do terrorists have?

    That’s what Yoo was asked, and all he did was answer it.”””

    That’s not “all he did” at all. Perhaps you should actully read up on the material and get a clue.

  21. This kind of ties in with this article I read earlier.

    Apparently FBI head Mueller was aware of torture going on by the CIA and it disturbed him so much that he seperated all FBI agents from the CIA’s conduct and didn’t even want them in the same room because he didn’t want to expose them to criminal liability.

    But when he was pressed to explain what action if any he took to investigate these abuses, he basically said they couldn’t investigate because they get their legal opinions from DOJ, and DOJ (including Yoo) had authorized these techniques and basically tied the hands of the FBI to investigate these actions.

    Actions that Mueller didn’t want his agents taking part in.

    Some went to FBI Director Robert S. Mueller III, according to the former bureau officials. They said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.

    “Those guys were using techniques that we didn’t even want to be in the room for,” one senior federal law enforcement official said. “The CIA determined they were going to torture people, and we made the decision not to be involved.”

  22. “””One can only hope that no one attends his classes. Let the market decide, eh?”””

    I say everyone should attend his class and rip him a new one everday until he gets tired of it and quits.

    The funny thing is that Gonzales can’t seem to find a job, but this guy did. May Gonzales hasn’t applied to any schools yet.

  23. The Constitution does not exist to confer protections on specified individuals. It exists to impose constraints on the state.

    Well, no. It exists to establish a state. However, the state it was intended to create was a state limited in its powers because it was at least then understood and agreed that it would be limited in its functions, too. Regarding those limits, here is an interesting tidbit I stumbled across, a bit of debate from Virginia’s Ratifying Convention. I wonder if Yoo happened across it in his exhaustive research?

  24. I had a neighbor once who was convinced that the U.S. government was secretly controlled by the Pope, and that it had devoted its time to ruining the lives of decent Americans like himself.

    He felt that the fact that the Pope was the head of a foreign government meant that all Catholics were traitors and should be executed.

    If a law school were to hire this guy and have him teach constitutional law, I think the law school would quite properly be criticized. More to the point, if I ran a law firm, I would be extremely reluctant to hire students who had learned legal theory from someone who was drawing such legally untenable and even insane conclusions.

    This is not a chilling effect on legal research, anymore than a school being petitioned to fire a geologist who teaches that the Earth is flat, or an astronomer who writes papers defending an Earth-centric model of the solar system is squelching academic inquiry.

    Personally, as a result of their willingness to give John Yoo a post, I will be extremely reluctant to do business with a graduate of the school. I recommend that everyone else do the same. Perhaps when faced with the plunging value of their degree, the regents of the school will come to their senses and fire the man they hired who is just as unsuited for his post as my crazy anti-papist neighbor.

  25. That Mafia accountant never actually handled any of the money! He just wrote memos on what to do with the money! Somebody else followed the orders, but the accountant just wrote them, and this is a country where you can write what you want.

    And that guy who handled all the dirty money was just following orders.

  26. If Yoo is, umm, completely and utterly wrong about the law, while being paid to teach it, wouldn’t this provide a reasonable cause for dismissal?

  27. Everyone seems to want to cast this as a free speech or academic freedom case. But if a lawyer gives bad advice — whether in good faith and after his best efforts or not — wouldn’t his qualification to be a faculty member in the law school of one of the world’s great universities come into question? If he gave EGREGIOUSLY bad advice, wouldn’t his basic competence be called into question, not to mention his ethics?

    Suppose that, instead, it was the College of Engineering, and that the professor’s calculations and analyses were crucial in the design and construction of a bridge, which subsequently collapsed and killed the thousands traveling across it at the time, due to flaws in the professor’s work. Is it really much of a stretch to think that calls for the professor’s ouster or resignation would not be so controversial? Really now, how could the guy hold his head up on campus or in class with that much blood on his hands, even if he did his best in good faith; but then, what if his advice had deliberately gone against mainstream engineering practice to enable the construction company to get the job done more quickly or less expensively? I see the latter scenario as similar to what Yoo did in the legal sphere. When “mainstream practice” was to adhere to traditional rules of war and conflict, the Geneva Convention, and the Constitution, among other standards, Yoo blazed a new path for the neocon emperor to follow. People suffered or died as a consequence.

    This little exercise in memo-writing went far beyond making the best case for the client, which we expect all good lawyers to do. It was aimed at legally shielding perpetrators of conduct that previous administrations and courts in our country and the world over had deemed both immoral and illegal. It was, at very least, participation in a conspiracy to violate the spirit of the law by carefully obeying its letter (and even then, only after asserting favorable definitions of terms, and interpretations of the law, which might not hold up in court). At least, that’s how it looks from the outside.

    I just don’t think that bad lawyers — shown to be bad by their works! — should be the teachers and exemplars for future generations, anymore than I think that bad engineers should. How would this be an abridgment of academic freedom OR free speech?

    I used to attend Berkeley and have family there now. I think Cal is in a quandry: It can agree that Yoo provided bad legal service while on the public payroll and encourage him to resign or seek to revoke his tenure if he won’t go. Or it can take the hit in prestige and reputation that, for example, the UC medical school might suffer for hiring Dr. Mengele and letting him teach a class on human vivisection. I don’t think this comparison would be considered too “tortured” by those who may have been tortured under protocols “shielded” by Yoo, or their families. Do you?

  28. I think Yoo and Alan Dershowitz should teach a class together: Torture Law. They could demonstrate various interrogation techniques on student “volunteers” and ask the class whether or not the techniques are torture.

    This just goes to show that the prestige law schools penchant for grabbing celebrity lawyers is often a bad idea.

  29. D.A. Ridgely-

    Excellent excerpt from the debates. I get so tired of hearing how the Constitution was written so long ago by white guys who couldn’t possibly understand our modern times or situations. Passages such as these show clearly that, in writing the Constitution and Bill of Rights, the founders looked to the past, present, and future, and that they saw our plight today quite clearly among the scenarios they considered. Thanks for posting the link.

  30. You can’t fire that math teacher just because he doesn’t know what the Pythagorean Theorem is!

    What are you, some sort of fascist?

  31. Meanwhile, millions of people who are defintely not terrorists are having their Fourth and Second Amendement rights violated on a daily basis, as the State arrests them for ingesting things or owning guns.

    Who do we get to prosecute/persecute for that?

    Is it too late to jail Janet Reno?

  32. Shorter TallDave:

    “Hey! Look! Over there! Walk and chew gum what?”

  33. “Look over there” is exactly what’s heppening.

    We’re obsessing about 3 senior AQ getting waterboarded, while we lose real civil rights.

  34. TallDave,

    I seriously doubt that the waterboarding of those three men is the length and breadth of the objections some have to the current policies of the Bush administration on the issue of the scope of Presidential powers in wartime.

  35. Is it too late to jail Janet Reno?

    I’m genuinely curious if there are there any Republican AG’s you’d want to jail.

  36. “Congratulations to Berkley for providing at least one conservative a voice to teach both sides of the controversy.”

    Yes, just what we need to counterbalance the lefty law professors who want the federal courts to run everything without Constitutional restraint – balance out those profs with a “conservative” prof who supports extra-constitutional powers for the President.

    Government by judiciary or Presidential dictatorship? We report – you decide!

  37. The hell of it is that, if some *real* conservative law prof tries to get hired at Berkeley, they may say, “dude, we already got a conservative.” And they [and the hapless students] will sincerely believe that John Yoo represents the “conservative legal viewpoint.”

  38. Thanks TallDave but I already have a clue. That’s how I know Yoo’s opinions and counsel was greater in scope than just a few AQ boys.

  39. “””We’re obsessing about 3 senior AQ getting waterboarded, while we lose real civil rights.”””

    How do you maintain civil rights when the President is being advised that he can igonre the document that is the legal basis of our rights?

  40. I’m not usually one to eagerly await academic journal symposiums

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