Phi Beta Cons

Legal Debate and the Problem of the ‘Mainstream’

I read with interest the New York Times’s recent online panel discussion, “Torture and Academic Freedom.” At issue is the now-famous John Yoo “torture memo” and whether this memo could justify his termination from Stanford Law School.  

Unsurprisingly (this is the New York Times, after all) the panel doesn’t contain any real defenders of Professor Yoo. One panelist says he is “morally odious” but should not be fired. The next panelist believes his opinions violate professional rules of ethics, and the school could take action on that basis. AAUP president Cary Nelson — taking a position quite at odds with his public statements on behalf of Ward Churchill — apparently believes Yoo can be put on trial for “professional incompetence” with due process cleansing any danger to academic freedom. The far-left National Lawyers Guild wants him punished, but not in a way that could be used to “target professors with left-of-center viewpoints,” mind you.

All of this is drearily and depressingly familiar. Of course the AAUP is going to find a seemingly principled way to punish conservatives at the same time that it hopes no one notices its full-throated defense of someone with the “professional competence” of Ward Churchill. Of course the National Lawyers Guild is going to want to destroy the careers of Bush-era officials. It’s also depressing that even those who defend Professor Yoo’s right to keep his job also feel compelled to take their shots at the man himself.  

But there is one panelist — the last panelist in the entire piece — whose reasoning is particularly disconcerting. Cornell Law School’s Brad Wendel doesn’t believe Professor Yoo should be fired, but in discussing Yoo’s wrongdoing, Professor Wendel says the following:

On a wide range of crucial issues, from the application of the Geneva Conventions to the definition of severe pain to the limits of executive power, the Justice Department lawyers were so far outside the mainstream that their “legal advice” had to be considered something other than a good faith effort at ascertaining the limits of the law.

Hmmm. Professor Yoo was outside the “mainstream” and thus had to be doing something other than making a “good faith effort at ascertaining the limits of the law”? Which mainstream? If it’s the academic mainstream, the “mainstream” is so ideologically and politically narrowed that it’s quite easy to move outside of it — and still provide excellent legal advice to your client. In fact, the academic legal mainstream has been quite wrong about the direction of constitutional law before and practitioners should follow any legal academic “consensus” with extreme caution. On some relevant issues, especially those involving the extent of executive power and the applicability of crucial provisions of the Geneva Conventions, the Supreme Court itself has been closely divided — and not all questions have been answered.  

Moreover, there are many other relevant legal “mainstreams” here, and I can tell you from experience that Professor Yoo is within some of them. He’s outside of others, of course, but this definition of “good faith” advice by reference to mainstreams is quite problematic, especially in areas like this — at the intersection of law and policy where not all issues are necessarily even justiciable.

It’s fine to take issue with Professor Yoo’s conclusions, but to define his (or, by extension, other attorneys’) “good faith” by his adherence to undefined “mainstream” positions? That’s a bridge too far.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

Most Popular

Film & TV

A Sad Finale

Spoilers Ahead. Look, I share David’s love of Game of Thrones. But I thought the finale was largely a bust, for failings David mostly acknowledges in passing (but does not allow to dampen his ardor). The problems with the finale were largely the problems of this entire season. Characters that had been ... Read More
Film & TV

Game of Thrones: A Father’s Legacy Endures

Warning! If you don't want to read any spoilers from last night's series finale of Game of Thrones, stop reading. Right now. There is a lot to unpack about the Thrones finale, and I fully understand many of the criticisms I read on Twitter and elsewhere. Yes, the show was compressed. Yes, there were moments ... Read More