Posted by Jonathan Adler:
OLC Alums Support Delahunty:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168522936
Since several students and professors at the University of Minnesota
[1]expressed opposition to the appointment of Professor Robert
Delahunty to teach constitutional law, others have expressed
substantial support for the decision (or, at least, opposition to the
opposition). In particular, I learned that a prominent group of
Delahunty's former supervisors from the Justice Department's Office of
Legal Counsel wrote to Minnesota's Deans in defense of Delahunty and
the appointment. The text of the letter follows:
Dear Deans Charles and Morrison:
We write to defend Professor Robert Delahunty against unjustified
attacks by members of your faculty. In a [2]letter dated November
28, nine professors of the University of Minnesota Law School argue
that Professor Delahunty is unfit to teach there because his work
on a memo concerning the scope of the Geneva conventions shows a
lack of legal ethics. We emphatically disagree. The memo at issue
in no way seeks to justify torture, but addresses complex legal
matters of the kind on which the Office of Legal Counsel
traditionally opines. Nothing on its face suggests that it is
either incompetent or insincere, and the nine professors offer no
persuasive evidence to support their very serious charge of
unethical behavior. The only specific issue on which they take
issue with the memo is one that has divided the Supreme Court
itself.
We are in a good position to evaluate Professor Delahunty�s work as
an OLC lawyer. All of us were either Assistant Attorneys General in
charge of the Office or Deputy Assistant Attorneys General with
supervisory responsibilities. We represent different political
parties and three different administrations. None of us has held
any executive position in the current administration. We all share
the view that Professor Delahunty is an excellent attorney who
acted honorably and with distinction in public service. He always
gave his sincere and independent advice. He went where his analysis
led and he was unafraid to put that analysis in front of his
superiors even if he knew that this was not the most politically
palatable result. Those of us who teach at law schools would be
pleased if Professor Delahunty taught a course at ours: we are sure
that students would learn a great deal both from his intellect and
his character.
Before turning to the substance of the nine professors� claims, we
should clarify what their letter obscures. The work of which they
complain is a [3]single memo, and the memo does not address issues
relating to torture. As it makes clear in its second sentence, it
considers an important but particular question: whether the laws of
armed conflict apply to the conditions of detention and the
procedures for trial of al-Quaeda and the Taliban. The memo did not
address the applicability of laws and treaties regarding torture to
interrogation methods. It thus sensationalizes matters, quite
inaccurately, to refer to this draft opinion as a �torture memo.�
Nor can Professor Delahunty be faulted for not addressing questions
that were not put to him. OLC memos focus on discrete questions at
the request of government clients, and civil servants have no
responsibility for determining the questions that should be
addressed. Moreover, the memo makes clear that it concerns only a
legal question: it expressly declines to consider what policies
should be adopted with respect to the detainees. This stance is
wholly consistent with OLC�s mission of assessing legality and
leaving policy decisions to other departments of the government.
The question the nine professors have raised concerns legal ethics,
not the ultimate correctness of the legal views expressed. People
often disagree about the content of law, particularly complex and
rarely litigated matters like the ones the memo addresses. Some of
the signers of this letter largely agree with the conclusions of
the memo, others are uncertain, and still others disagree with at
least some of them. But we are unanimous in believing that attacks
on Professor Delahunty�s legal ethics in writing this memo are
baseless.
We are frankly puzzled that a letter that makes such grave charges
against an incoming colleague provides so little specific analysis
about what reasoning in the forty page memo demonstrates a lack of
legal ethics. The nine professors do impugn the memo�s conclusion
that common article III of the Geneva Conventions does not apply to
Al-Quaeda and Taliban detainees by observing that the Supreme Court
has disagreed with that conclusion in its recent Hamdan decision.
But a subsequent Supreme Court decision at variance with a legal
opinion does not render that opinion unethical. More remarkably
still the letter fails to acknowledge that three Justices of the
Court accepted the government�s contention that common article III
did not apply. Two did so in dissenting from the Supreme Court�s
decision in Hamdan. Chief Justice Roberts (as well as Judge
Randolph) did so in the appellate court decision which the Supreme
Court reversed. This array hardly suggests that the memo�s
conclusion about common Article III was without substantial basis
in law. One presumes that the nine professors would not object to
the ethics of these jurists if Minnesota invited one to teach.
Otherwise the letter of the nine professors offers no substantive
analysis of the opinion. They are content to quote from remarks by
an official of Amnesty International which also offer no
substantive analysis, merely an unsupported suggestion that this
memo may have contributed to torture. This kind of conclusory
statement by an advocacy group does not provide a proper basis to
charge a fellow law professor with a lapse of legal ethics.
Our concerns go beyond the charges in this letter, as reckless as
they appear to be to us. Attorneys in OLC are called upon to render
legal advice in complex and particularly sensitive matters. Of
course, they must behave ethically. But the rest of us and
especially those of us who are both lawyers and academics have
obligations to those in public service as well, and certainly not
to charge them with derelictions of legal ethics without the most
substantial analysis and care. Otherwise fine attorneys,
particularly those who may hope for subsequent career in academics,
may be deterred from giving advice that they recognize may be
unpopular in the academy or, for that matter, with the public at
large.
We therefore ask that you continue to extend your invitation to
Professor Delahunty to teach and welcome him as a colleague. We are
confident that the entire Minnesota community will benefit from his
fine colleagueship and find him a serious and substantial
interlocutor even on matters on which they disagree.
John E. Barry Partner Wiley, Rein and Fielding
Douglas R. Cox Partner Gibson Dunn
John C. Harrison David Lurton Massee, Jr., Professor University of
Virginia Law School
Douglas W. Kmiec Caruso Family Chair in Constitutional Law
Pepperdine University School of Law
John O. McGinnis Professor of Law Northwestern University Law
School
H. Jefferson Powell Professor of Law Duke University Law School
Christopher H. Schroeder Charles S. Murphy Professor of Law and
Public Policy Studies Duke University Law School
[Note: I've omitted two footnote citations to the Supreme Court and
D.C. Circuit's Hamdan decisions from the letter. I am also responsible
for the links added to the text.]
I have also learned that there is an [4]online "counter petition" at
[5]petitiononline.com, signed by Minnesota law students and alumni,
among others. At the time of this posting, it has 143 signatures -- a
significant number, but less than the number of students and others
who have signed petitions against Delahunty's appointment.
What is the consequence of this support for Delahunty? It is hard to
tell. [6]This Minnesota Daily story from December suggested that the
school's administration was not plannig to retract the offer. It
quotes one of Minnesota's Deans stressing the importance of open
academic debate, but also says the administrative difficulty of
retracting the offer was a rationale given to some objecting students.
I have yet to find more recent reporting on the matter.
As noted before, this story has an interesting connection to the VC,
as Delahunty was asked to teach the first year section of
Constitutional Law traditionally taught by co-Conspirator Dale
Carpenter, who will be on leave.
References
1. http://volokh.com/posts/chain_1164810164.shtml
2.
http://insidehighered.com/index.php/content/download/104089/1389631/file/DelahuntyLTRNov28,2006.pdf
3. http://www.msnbc.msn.com/id/5025040/site/newsweek
4. http://www.petitiononline.com/umnlaw/petition.html
5. http://www.petitiononline.com/
6. http://www.mndaily.com/articles/2006/12/04/70141
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
