Pejman Yousefzadeh has responded to my critique of his defense of Professor Yoo’s “torture” memorandum on his blog. His contention that Professor Yoo’s memo does not contain Professor Yoo’s legal opinion remains decidedly unconvincing. On his other points, however, I’m in broad agreement.
My response to his specific points are in the comments on his blog. Three items, however, are worth noting:
First, as I previously wrote, the Berkeley protestors remain “nuts” for calling for Yoo’s dismissal — Mr. Yousefzadeh’s and Professor Bainbridge‘s points regarding academic freedom alone carry the day. Though, frankly, I have no idea why Mr. Yousefzadeh considers this to be an “admi[ssion]” on my behalf. If one says, “the sky is blue” (and it happens to be at that moment) is that some kind of damning concession? The sky is freakin’ blue.
Second, it is important to remember the lawyer’s role in drafting a memorandum to a client. A lawyer does not opine on policy or morality; she only opines on the law. However, (1) it’s wrong to suggest that the lawyer is not taking a legal position on the issue before her — of course she is — and (2) the lawyer’s conclusions in her memorandum are her conclusions, and they reflect her views as to what the law is. Professor Yoo — having reasearched the law, come to a conclusion, and drafted the memo — is fairly tied, on a personal level, to the memo.
Third, as I pointed out in my original criticism, this memorandum was written to answer a question posed by the client (here, the Government). The question posed suggests the Government’s intent in this area (it presumably had a reason for asking the question). This should give everyone pause.
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Mr. Yousefzadeh concludes his response by refocusing on the legitimacy of Yoo’s legal advice, which he, at least at first blush, finds sound. I’m no expert in the area (when has that stopped you before?), but I’ll at least give a go at putting down some rough thoughts over the weekend.
I am puzzled as to how a lawyer can “opine on the law” without by that very act opining on morality, if only in the sense that her opinion carries the belief that Law itself represents a good and a very high good at that. In other words, by tying herself to her opinion she takes an affirmative stance on the goodness of a life lived under Law. This stance, of course, has less to do with her membership of the legal profession than with her vocation as a lawyer. If this is right, then it would seem to follow that she ought not to offer opinions which flagrantly conflict with that ideal of the good life which is embodied in her calling. Such a conflict would surely arise if an opinion on the legality of torture failed to reflect, not only the letter, meaning and compass of international law, but the belief that torture is a great evil.
AnthonY Holiday , D.Phil(Oxon.), Senior Lecturer in Philosophy, University of the Western Cape.
It’s very nice that you’re a “D.Phil(Oxon.), Senior Lecturer in Philosophy, University of the Western Cape,” but I’m rather wondering what relevance that has to your comment. Should we all append any titles or credits we have to our comments? Will that make them wiser or more authoritative or impressive?
“Should we all append any titles or credits we have to our comments? Will that make them wiser or more authoritative or impressive?”
I found the title germane and, from a poster I’m unfamiliar with, good to know.
Gary Farber: Should we all append any titles or credits we have to our comments? Will that make them wiser or more authoritative or impressive?
In some electronic forums it is not uncommon to provide identifying information in your signature, much as you might in a letter to the editor, perhaps. It may not be the usual style here, where anonymity is the norm, but I don’t really see this as pretentious (which seems to be your implication).