John Yoo's Right to Give Bad Advice
Jacob Sullum | April 24, 2008, 3:41pm
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.
James Anderson Merritt | April 24, 2008, 5:17pm | #
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?
