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Wednesday, January 14, 2009

Can We Also Impeach Law Professors For "Legal Distortions"?

As we get closer to Barack Obama taking office, the cry for "war crimes" trials of Bush administration lawyers who expressed legal opinions regarding coerced interrogation grows louder.

I have yet to hear anyone call for a war crimes trial for the attorneys during the Clinton administration who created unnecessary and artificial barriers to intelligence sharing which directly contributed to our inability to detect the 9/11 plots. In the case of the Bush administration lawyers, no one died as a result of allegedly faulty legal reasoning and in fact lives likely were saved because additional plots were uncovered; in the case of the Clinton administration lawyers' faulty legal reasoning, thousands died.

The latest iteration of the 'faulty legal reasoning" witch hunt is an article in Slate magazine arguing for the impeachment of 9th Circuit Court of Appeals Judge Jay Bybee. The article is written by Yale Law School Professor Bruce Ackerman, who argues that legal opinions authored by Bybee while Bybee was employed at the Justice Department are grounds for impeachment. Ackerman calls Bybee "a suspected war criminal."

Ackerman's argument is that the "torture memos" written by Bybee and John Yoo (now a law professor at U. California - Berkeley; what irony) "enabled the excesses at Abu Ghraib, Guantanamo, and other places." Ackerman believes that Bybee's reasoning in the memos "fails minimum tests of legal competence, [but] he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities."

Is faulty legal reasoning really tantamount to high crimes and misdemeanors? What if Ackerman were wrong in arguing that the Bush administration had no power to enter into a long-term agreement with Iraq? And what if Ackerman's faulty reasoning resulted in instability leading to civilian and military deaths? Would blood be on Ackerman's hands, much more so than on the hands of Bybee and Yoo?

It is very easy to take legal potshots at lawyers in government who have responsibility for rendering legal advice on issues relating to protecting the nation. Sometimes legal reasoning stands the test of time, sometimes it doesn't. The verdict is still out on the Bybee/Yoo legal reasoning, despite Ackerman's presumption that Bybee and Yoo have war criminal status. Regardless, hindsight doesn't transform someone from being wrong, into being a war criminal.

Such potshots are particularly easy coming from people who have no responsibility for anything other than getting published, and can't be impeached, even when they engage in "legal distortions."
Afterthought No. 1 - Want to know what the greatest concern is about a terror attack using nuclear devices? Resulting legislation infringing on civil liberties. From Bruce Ackerman's book (preview for free at Google):

And yet September 11 was merely a pinprick compared to the devastation of a suitcase A-bomb or an anthrax epidemic. The next major attack may kill and maim one hundred thousand innocents, dwarfing the personal anguish suffered by those who lost family and friends on 9/11. The resulting political panic threatens to leave behind a wave of repressive legislation far more drastic than any thing imagined by the Patriot Act.
I didn't know that the Patriot Act could imagine. Imagine that.
Afterthought No. 2 - No need to impeach, just boycott the impeachers.
What others are saying (not that it matters, since people who disagree with me not only are wrong, they are morally corrupt and should be prosecuted):

►For a similar, and equally hostile, response to Ackerman, take a look at Jack Bauer Would Not Be Pleased ...
►For a similar, but less hostile, reponse to Ackerman, take a look at Bruce Ackerman Nods
►For a take on Ackerman's age-based bias, see When 35-Year-Olds Write Legal Memos and Ackerman - Impeach Jay Bybee
►For the "what's good for a judge is not good for a law professor" argument (i.e., Bybee should be impeached, but Yoo should not be fired), see Bybee, Yoo, and What to Do?


  1. This post by Jacobson arises to a truly epic level of stupid - so unfortunate given how serious the issue of torture currently is to the legal community.

  2. The issue of torture is serious, which is why we should not throw around labels such as "suspected war criminal" so lightly. The reality is that the legal system has struggled to come up with guidelines as to how to deal with non-uniformed enemy combatants, both as to detention, trial, and yes, interrogation. Supreme Court and other court decisions have been split on many of these issues, including whether the Geneva Conventions apply. Does that mean that the Justices who sided with the Bush administration also are suspected war criminals? What if one vote had gone the other way, would that make Justices Ginsburg et al. suspected war criminals? Can't we differ on legal issues without threatening to prosecute people who have a different rationale?

  3. We'd better; or else we risk the exact scenario that led to the fall of the Roman Republic. If giving up power means prosecution for political reasons then no one will peacefully give up power.

  4. snelson134 has an excellent point In an NYTimes Op-ed about Russian political, Stalin Biographer, Simon Sebag Montifiore wrote:

    "Russia is so feudal in its system of patronage and reward that it is virtually impossible for a leader to hand over power without controlling his successor or at least receiving an exemption from prosecution — something Mr. Putin granted his predecessor, Boris Yeltsin, in 1999. Leaders, writes Professor Ra’anan, “are condemned to lead a Hobbesian existence, fearing the penalties that come with loss of power.”"

    Prosecuting the former administration is a step down a slippery slope that we don't want to take. Members of the Yale Law faculty are not prudent guides in this regard. As a group, they are more like a real life Aristophanes' "Clouds", than they are like sober and prudent men. Ackerman in particular has little grip on reality.