The right to be wrong

The San Francisco Chronicle reports the efforts by Berkeley law students to force Prof. Yoo, who drafted the now imfamous memos that argue that the U.S.'s action in Afghanistan is not bound by the Geneva Convention, to resign from his position as professor of law at Berkeley. The students had argued that academic freedom does not apply to actions he took while a government official.

The right to be wrong

The San Francisco Chronicle asks, "could someone at Boalt please explain to us the logic behind that reasoning?"

Well, I am not at Boalt, but I am glad you asked. While a lawyer has every right to provide legal advice to his client, and have the advice protected from public scrutiny, a lawyer cannot engage in conduct that furthers a fraud or a crime. Professor Yoo is a very intelligent man, I don't think that much is disputed. He ought to know, and he has reason to know, that the U.S. action in Afghanistan looks like a war, smells like a war and kills like a war. As a lawyer, he should know that, just because Afghanistan is not a sovereign state, or merely a "failed state" as he is reported to have argued, should not take U.S. action out of the purview of the Geneva convention, even under any tortured logic. To argue otherwise would be as phony as Clinton's now famous disputation about the definition of the word "is". No serious judge would buy it. He ought to know that the only reason he is writing that memo is to provide the administration a defense of "advice of counsel" for conduct that is illegal under the Federal War Crimes Act, which is the enabling statutue for the U.S.'s ascension to the Geneva Convention. In other words, in the eyes of the student, Professor Yoo has committed an act in violations of legal ethics -- i.e., conduct unbecoming of lawyer. I think that should be sufficient grounds for the students to call for his voluntary resignation.

Of course, now judge or jury has passed a judgment on Professor Yoo; and so, Professor Yoo is presumed innocent of any violation of legal ethics. I support that. If Professor Yoo does not think he has done anything inappropriate, he has every right to dispute and ignore any charge of such violation. However, if subsequent events play out, and Professor Yoo is found to have committed an ethical violation, the law school should have every right to ask for his involuntary resignation.

On another note, I support the government's position that it does not need to make public the memos Professor Yoo wrote. However, the arguments that Professor Yoo made to support his conclusions in the memos are of enormous academic interests for the public. I would call on Professor Yoo to write separate articles on the relevant issues. The legal arguments should be made available to the extent it does not betray his client's confidence. That should not be difficult.