More On The Prof. Yoo Controversy

Update: There were various legal memorandums provided to defend and guide administration policy regarding treatment of detainees. WSJ just had a story, accessible here, concerning one that is particularly troubling because it directly deals with the bans on torture, but suggests "the president's inherent constitutional authority to manage a military campaign" allows a way around them. In fact, the Justice Department "concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power."

Likewise, "The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the 'special maritime and territorial jurisdiction of the United States, and accordingly is within the United States' when applying a law that regulates only government conduct abroad." See here and here for some excellent analysis. The President might not much care for the French, but this sounds more like l'etat c'est moi than even the British divine right of kings principle (at least, after 1688, see here).

At this year's graduation at the University of California at Berkeley's Boalt Hall School of Law, about one-quarter of graduates wore red armbands. They were protesting Boalt law professor John Yoo's co-authorship of a memorandum written in 2002, when he served in the U.S. Justice Department's Office of Legal Counsel. ....

But Yoo's actions still can be judged morally - and judged harshly. And from a moral point of view, students are right to protest them. They are right to do so if they find Yoo's Geneva Convention views specious. They are right to do so if they simply find torture immoral and wrong. And they are right to do so if they are concerned, as I am, with the especially horrific prospect Yoo's views open up: that entirely innocent persons may be, or have been, subject to torture and abuse.

-- Julie Hilden

First Amendment lawyer Julie Hilden provided an interesting discussion of the Prof. Yoo controversy, which I commented on here. She thinks the legal case against him is weak and ill advised as is the suggestion he should resign if he doesn't change his views. I'll remain agnostic regarding such issues, but I'd lean that way too. All the same, his very choice by the administration to provide legal counsel is dubious (basically a selection of an absolutist leaning yes man), and criticism of the advice provided makes this more than a run of the mill academic freedom case.

Thus, the protests were sound on moral grounds at least as to government activities other than Iraq, which the President "announced" would be under the control of the Geneva Conventions. I think Hilden's discussion of the latter issue is a bit too generous. News coverage and other resources have shown that actions in Guantanamo influenced the policy elsewhere. I'm unclear how the "announcement" stood up next to actual on the scene policy decisions and the likelihood of a general ethos likely to be the deciding factor in such stressful times. Anyway, the bottom line:

[His] advice ... is morally suspect, and could lead to abuse. With no judicial review, no Geneva Conventions protection, no procedure to prove innocence, and the current, freighted "war on terrorism" atmosphere adding pressures to the mix, surely the possibility that innocent persons will be tortured or abused is a very real one.

So, don't fire or arrest ... just scorn him. I'm game.