The practice of law must seem to most Americans, at a first, real-life glance, like being mugged in a public park by a group of blonde Menudo impersonators wielding dead mackerels with rusty nails pounded through their fins: You see a lot of familiar elements that don’t seem to go together very well, and you immediately try to make sense of the whole mess by fastening on the reconcilable elements and trying to bull through with your common sense and what you’ve seen on TV. This is almost invariably a recipe for profound errors, wasted opportunities, and, as any lawyer who has had to deal with a pro se plaintiff can attest, an experience that ranges wildly between a never-ending headache, a sense of pity at the poor fellow on the other side (who is frequently losing a good case because he doesn’t know the rules of the game), and often, but not always, a relatively easy kill at the end.
It doesn’t have to be that way: The practice of law isn’t rocket surgery. It’s simply the application of a series of liberal arts skills to a collection of social sciences events. It’s a good idea to hire a lawyer to handle the nuances and the things you either can’t or shouldn’t do on your own, but the law itself, and how it is practiced and works, are well within the grasp of anyone with a roughly 100 I.Q. and even a minimal attention span.
What this means is that John Yoo has singlehandedly either reduced a significant portion of America’s commentariat to sub-moron status, inflicted terminal laziness on it, or both.
Ordinarily, most readers of online political commentary would think I’m about to say something about Matt “I’ve Never Heard of Everglades National Park” Yglesias or Rod “Crunchy Donatism” Dreher. In fact, this is about one of the left blogosphere’s less dim bulbs, Brad DeLong — a professor of economics at Berkeley and allegedly a fairly clever fellow — who lacked either the brainpower or willpower to actually understand more or less anything associated with the practice of law before deciding to opine on it.
Professor DeLong is not, lest anyone who actually made it through that column without laughing be confused, entirely in good faith here. The matter at issue is the sequence of events that led the Bush Justice Department to opine on the sorts of activities American interrogators could undertake to extract information from captured terrorists and would-be terrorists. Those without a political axe to grind or a crystal ball would ordinarily be stuck with the version of events put forth by those there, and the manner in which these things are normally handled: When confronted with the question How far may we go? the White House asked for a legal opinion. Professor Yoo, then at Justice, helped author a memorandum (actually, a series of memoranda) outlining the law on the matter and rendering certain conclusions about the state of Executive power in a time of war or existential crisis, as we believed ourselves to be in 2001 and 2002.
Professor DeLong’s postcognitive vision differs, though he doesn’t bother to explain whether this is a result of the ingestion of special mushrooms, communication with the spirit world, a Walkabout, or some other supernatural or paranormal event:
It appears that what happened is this: The Bush White House directed the U.S. armed forces and the CIA to torture people we had captured, some of whom were terrorists, some of whom saw themselves as lawfully fighting a just war against invaders, and some of whom were innocents in the wrong place at the wrong time, people whose names had been screamed out by others on the rack or had been sold to the CIA by local enemies or opportunists.
When the CIA and armed forces interrogators and lawyers resisted this demand, Vice President Richard Cheney’s staff went to Yoo at the Justice Department’s Office of Legal Counsel and asked him to write a memorandum stating that the tortures they envisioned were perfectly legal.
Despite the absence of a single fact in the historical record to support this series of characterizations and suppositions, it seems safe to assume that DeLong actually believes this. Bully for him: Some folks need to believe angels walk among us, some believe that chickens have feelings, some believe that President Bush brought down the World Trade Center, and some have to believe the Vice President of the United States of America undertook a deliberate campaign to torture innocents for giggles while conscripting a host of lawyers in the process.
I’m open to the possibility that Professor DeLong believes all of these. Insanity like this was a commonplace on the American political Left for roughly eight years, and based on his writings, Professor DeLong was not bright enough to resist its pull; it is no more remarkable that he would say such things than that his fellow travelers would have spent every day from what Mark Steyn famously described as the “eighteen month rush to war” with Iraq until the inauguration of Blessed President Obama crying that America was ignoring the real war in Afghanistan, only to seamlessly pivot once that cudgel was no longer politically useful and demand that the same group of murdering theocrats who helped stage the deadliest attacks on American soil in our history be allowed to overrun that country again. It comes with the insulated topography within the six walls, so to speak.
What’s noteworthy here is Professor DeLong’s attempts — in a facially dishonest cover discussion of golly-gosh-gee, what to do about my colleague at Berkeley? — to discuss the practice of law. I presume that, if he took notice of me, any attempts on my part to opine on neoclassical economics versus Keynesian theory would earn (well-deserved) derision; four semesters’ worth of economics classes, capping off with intermediate microecon and intermediate macroecon theory, are enough for me to know how much I don’t know. I don’t see “juris doctor” in Professor DeLong’s credentials, so I’ll assume he has four semesters of classes in law under his belt before noting that he’s basically wrong in almost every particular.
Again, it need not be so: Although specialized training and research tools aid the process enormously, a discussion of the practice and subject of law really is well within the grasp of even a tenured academic. DeLong’s catalog of errors is, charitably, a testament to his laziness and his desire to do as much damage to his colleague as possible for as little work as needed.
As an initial matter, in a preview of the sloppiness attendant with his entire analysis — and indeed, with similar lines of argument across the left side of the political aisle — there are two critical memoranda at issue, on two different topics, a point rather lost in DeLong’s diatribe. (Here and here.) The first is an analysis, issued exactly two weeks after the attacks on the World Trade Center, Pentagon, and God knows where Flight 93 was going, on the extent of the President’s War Powers in a time of apparent war. The second is a discussion of the domestic and international laws (to which the United States is a party) that apply to the interrogation of alien war criminals — unlawful combatants — held on foreign soil. While some of the underlying issues are the same, it is important during this discussion to remember that the two are actually different, and discuss very different problems. It is a discredit to DeLong that he either did not read the memos, or is too lazy to separate them out in his wandering discussion.
His piece starts badly.
The faculty at the University of California at Berkeley does not know what to think or say or do about our colleague, Berkeley law school professor John Yoo. Universities like ours pride themselves on a commitment to academic freedom. But we also stress our devotion to the rule of law and the primacy of human rights. And therein lies the conflict that roils the Berkeley campus.
We are not altogether certain of what Yoo did as a lawyer in the Bush Justice Department. We know that he wrote the now-infamous memos providing legal justification for torture. But some suspect that what actually transpired may have been even more disreputable; otherwise, Yoo would have spilled the beans by now in order to salvage his reputation. Or so the theory goes.
I understand that the faculty of Berkeley considers itself both very important and very moral, but if Professor DeLong is to be believed, it is also too busy to watch enough television or read enough potboiler novels to have heard of the attorney-client privilege. Again recognizing that the faculty of Berkeley has a moral authority to which even the Pope must yield, I’m not clear on why Professor Yoo should initiate his own disbarment proceedings by breaching the privilege — which is what he’d have to do to “spill the beans” about what was said to whom and when at the relevant times — to satisfy their curiosity.
As Professor DeLong doesn’t bother to explain why this should be so, it seems safe to move along to the next error.
Without John Yoo or his colleague Jay Bybee (or somebody else willing to write a similar memo) the torture would not have gone forward, and the United States would not have sustained the enormous damage that was inflicted on it.
I’ve noted before that the interrogation techniques at issue are torture like Rosie O’Donnell is a serious political analyst, but the real error here is one that if widespread could pose a threat to the practice of law: The belief that lawyers, as counselors, are somehow responsible for their clients’ acts. As I’ve said elsewhere:
Lawyers advise. Clients act. In other words, a lawyer’s advice can only be part of the act if the client wills it — that is, the attorney’s liability is entirely out of his own hands. A soldier must disobey an order to commit a war crime because he acts; a lawyer is under no obligation to throw aside his laptop for fear that his boss will decide to ignore, or, worse, follow the arguments made in his memorandum.
This is a critical error on DeLong’s part, and one not unique to him on the left, that colors his entire whine: The worst possible thing Professor Yoo could have done, under any plausible understanding of Planet Reality, was to provide bad legal advice. He did not issue orders, he did not take orders and perform acts Professor DeLong believes to be torture. He wrote memoranda analyzing the law for his client’s decision-making process. To suggest otherwise is to imagine lawyers have power which we, blessedly, lack.
Not content to completely misconstrue the nature of an attorney’s relationship to his client, Professor DeLong apparently felt the need to undertake a passive-aggressive attack on Professor Yoo’s professionalism:
Lawyer acquaintances have told me that Yoo’s torture memos contain clues that they were not intended as serious legal opinions. One such clue is the complete disregard of legal precedent.
Put to the side that if anyone wrote, Economist acquaintances of mine have told me that DeLong’s analysis of India’s economic growth since independence was not intended as a serious academic work, I’d be rightly laughed out of the building. Ignore the long-distance exercise in forensic hermeneutics. That last sentence is a direct assault on either Professor Yoo’s competence or professionalism, a charge of either malpractice or fraud on Yoo’s client. It demands an explicit enunciation of the precedent he “completely disregarded.”
Instead, we get gibbering lectures on IRAC:
You can say that the current circumstance is sufficiently like a previous case the Supreme Court has decided that that precedent rules. You can say that the present situation really has no precedent, so the court would reach an entirely new decision. Or you can say that, while there is a precedent for the situation, that precedent is wrong and should be overturned. There is no fourth option.
Actually, no. You can say precedent (which is actually more than “a previous case the Supreme Court has decided”) completely lines up with the facts here, and this is why; that the precedent is similar, but distinguishable, calling for a different but not opposite result; that the precedent is identical is persuasive, but not binding (meaning the court considering the matter can reach a different conclusion); that the precedent is wrong; that the precedent is completely inapplicable; or that there is no precedent. This is, again, more a marker of DeLong’s almost pathological refusal to even understand the topic on which he opines than anything else — except a marker for how much more inane this can become:
Yoo’s memos concern presidential powers in a time of war. One famous precedent with which any lawyer would have to grapple is the Supreme Court’s decision in Youngstown, concerning President Truman’s seizure of the country’s steel mills to keep them rolling during the Korean War. The Supreme Court ruled his action unconstitutional. The Youngstown case set out the Supreme Court’s judgment as to how far the president’s inherent powers go in a wartime emergency and to what degree those powers are subject to congressional authority.
Many a young litigator has had a memorandum, brief, or email posing a question returned with the acronym “RTFR,” which is shorthand for “Read the [Expletive] Rule.” It is advice that would have served DeLong well here.
The case he is attempting to cite is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Actually, that’s only sort of true: He’s trying to cite Justice Jackson’s famous concurrence (for those of you following at home, a concurrence is not “controlling precedent,” it’s a persuasive argument and nothing more) with its fatuous language about waxing and waning authority, twilights and zones and equilibria. The Supreme Court subsequently seemed to adopt Justice Jackson’s reasoning in cases involving Executive authority, except when it has rejected it, thus leaving its status as precedent apparent only to amateurs, academics, those with an axe to grind against a given President, and folks too lazy to actually read the thing and the cases that cite it. (Professor DeLong manages to be all four.)
At the very least, Professor DeLong could have had one of his acquaintances email him a synopsis on why Jackson’s concurrence controls here, where Yoo should have cited it, in which memo, and for what purpose, and whether its absence renders the opinion meaningless or not, and why. Although it may not seem so from reading this, I — or any other litigator worth his salt — could write that in 200 words or less. DeLong’s failure to provide even this much is simply more proof that he has no proof of Professor Yoo’s incompetence or malice.
Worse than that, though, is the sloppiness of his thought: The memo that deals with presidential power is not the memo that deals with the extent of enhanced interrogation techniques. They concern entirely different subjects. More importantly, there’s an underlying question the answer to which DeLong implicitly assumes, because he has clearly never thought about it: What gives the Supreme Court the power to unilaterally thwart the Executive? Grammar-school civics taught us about checks and balances, by which no one Branch could overwhelm the other two; why does the Judiciary alone have the power to command the Executive and the Legislative branches? Does the Judiciary have this power because Justice Marshall made a power grab in passing two centuries ago? Because of a tradition never really tested and honored more in the breach than the observance?
I could go on at length, but by now you’re likely as tired of this as I am. Picking on DeLong — who hopefully writes better economics papers than he does backhanded accusations of fraud or malpractice — is easy, and is useful only as a symbol of greater, and unfortunate, trends in a significant portion of American political life. Professor Yoo is currently being sued for writing these memoranda, not by his former client for malpractice, but by someone who claims he was tortured because of the memos Yoo wrote.
Let me rephrase that: A lawyer is being sued because he wrote a legal analysis and his client thereafter allegedly undertook acts in reliance on that analysis that allegedly harmed the plaintiff. The plaintiff’s legal bill is underwritten by Yale, which means that Yoo is facing deep pockets with lots of incentive to score political points, against which he has to defend with no real chance of recovering his fees. A court of law has become a method of politics by other means against a lawyer who did legal research and writing. And the left — including much of the legal left — cheers.
I’ve said before that this represents not only a sloppiness in our political thought, but a dangerous precedent well outside of the political wars to which we’re now accustomed, because any lawyer who provides legal advice is at risk. I’m not concerned with the tender feelings of members of my profession so much as I’m concerned that one of the unfortunately necessary pillars of our notion of the rule of law is in danger — the lawyers and judges who make the law function are now weapons and targets. Our judicial system — a branch of government like any other — is being used as a political weapon to settle scores that elections could not.
The wind may already be sown. We’ve seen the coming harvest before, and it never ends well.
Christopher Badeaux is Senior Editor of The New Ledger.
TNL