Bench Memos

Target of Opportunity

The Chronicle of Higher Education collects brief comments pro and con on the proposition that John Yoo should lose his tenured position at Berkeley’s law school because of memos he wrote regarding interrogation tactics while serving in DOJ’s Office of Legal Counsel.  The apogee of the flight from reality is when one of Yoo’s enemies avers that he “acted directly and deliberately, in his capacity as an employee of the U.S. government, to facilitate war crimes.”  Of this, of course, there is no evidence.  Indeed, identifying just what those “war crimes” are (committed by others, mind you), for which he could be held responsible even in the most remote sense, would tax Yoo’s critics beyond even their imaginative abilities.  Then again, some of them blame him for Abu Ghraib, so perhaps I should not underestimate their hallucinations.

This foolish academic broil comes down to essentially political disagreements with Yoo’s service in the Bush administration.  He is a convenient target because his arguments were so plain and forceful, not because they were wrong (although some of them may have been), and certainly not because they were “screamingly disingenuous,” as one of his attackers puts the alternative.  (No one who has read a paragraph by John Yoo could ever accuse him of being disingenuous.)

The stench of opportunism is particularly strong when we ponder the impact on human lives of the arguments made by legal academics.  If John Yoo has to go, what of all those law professors who have made baldly political arguments, completely divorced from the actual Constitution, for abortion on demand?  Or who have so diligently worked to give surrogates the power to cause the deaths of such helpless persons as Terri Schiavo?  Any harm John Yoo might have caused is purely hypothetical by comparison to these real offenses against the rule of law and the rights of the vulnerable.


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