“Torture Memos” Author to Speak at Drexel Law

Event draws controversy.

John Yoo, the Bush Administration lawyer who wrote many of the so-called “Torture Memos” that opened the door to post-9/11 waterboarding of terror suspects, will speak Thursday at Drexel Law — and the appearance is generating controversy.

The Philadelphia chapter of the National Lawyers Guild just sent out this press release condemning Yoo’s appearance:

National Lawyers Guild Deplores Drexel Law Appearance of “Torture Memos” Author John Yoo

Disgraced Department of Justice lawyer John Yoo, author of the “torture memos” that advised the CIA, Department of Defense, and President on how to “legally” use torture in the first few years following 9/11, will be speaking at Drexel Law on Thursday 27 March 2014. The Philadelphia Chapter of the National Lawyers Guild objects to this appearance. We urge Drexel Law students to skip the event, because Yoo’s discredited legal opinions, based on extremist ideologies, violated both the Constitution and international law, and have no place in legitimate legal scholarship.

To review some of the history that we imagine many of the students may not be completely aware of, since they must have been barely teens at the time:

When the memos were first released, then Secretary of State Colin Powell strongly opposed them because they rejected the Geneva Conventions.




The U.S. Navy's highest-ranking lawyer urged that the government not follow the memos because of their "catastrophically poor legal reasoning" based upon the author's extremist unitary executive views (which legal writer Dahlia Lithwick later characterized as "if the president authorizes it, it isn't illegal").

The Department of Justice called the memos "legally defective," "deeply flawed," and "sloppily reasoned," and withdrew them.

An expert testifying before Congress called them "an ethical trainwreck."

President Obama repudiated them within days of taking office.

The Department of Justice's Office of Professional Responsibility called Yoo's legal opinions so flawed and incomplete that they amounted to professional misconduct and suggested that he be disciplined by the state bar.

And who can forget this exchange, from a debate in 2005:

Q: If the President deems he's that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?

Yoo: No treaty.

Q: Also no law by Congress. That is what you wrote in the August, 2002, memo.

Yoo: I think it depends on why the President thinks he needs to do that.

Is this what Drexel Law means by "experiential learning"? Or is this the level of legal scholarship Drexel Law hopes its students aspire to?

The National Lawyers Guild believes that the Drexel Law students who invited John Yoo to speak have made a deplorable choice. On their Facebook page, the event’s organizers have characterized Yoo’s work for the Bush Administration as a position where he “advised President Bush on matters of executive power and national security.” Drexel Law students should understand that Yoo’s advice encompassed a view of executive power that permitted extraordinary rendition and torture, resulting in negative repercussions in American foreign relations that we are still dealing with a dozen years later.

Let’s be clear. John Yoo’s theory is that under the Constitution, a President, so long as he can articulate a good reason, is legally permitted to authorize the torture of a human being, whether woman, man, or child. This theory is not taken seriously by any reasonable mainstream legal theorist or practitioner in America. And it would be unthinkable in the vast majority of countries around the world as a violation of the Universal Declaration of Human Rights and the United Nations Convention Against Torture. Torture is a proven ineffective way to gather intelligence; it is illegal; and it is immoral. Yet Drexel Law has welcomed its students’ invitation for him to speak.

The students at Drexel Law deserve better.

Sincerely,

Michele Grant, Co-Chair, National Lawyers Guild, Philadelphia Chapter

Steve Gotzler, Co-Chair, National Lawyers Guild, Philadelphia Chapter

Erica Briant, Chair, National Lawyers Guild, Drexel Law Student Chapter

Yoo, of course, was last seen in these parts back when the Philadelphia Inquirer — then under the stewardship of Brian Tierney — gave Yoo, a native of the Philly area, a regular column in the newspaper, generating an outcry then, as well.

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  • Drexel Law Students

    The Philadelphia Chapter of the National Lawyers Guild recently posted a blog article on its website admonishing the students responsible, and the law school itself, for inviting former Department of Justice Office of Legal Counsel Deputy Assistant U.S. Attorney General John Yoo to speak at Drexel School of Law. John Yoo is also currently a professor at the University of California Berkeley School of Law. Speaking on behalf of apparently the entire National Lawyers Guild, the authors characterize our invitation to Professor Yoo as “a deplorable choice,” and insist that “[t]he students at Drexel Law deserve better.” It is worth noting that Professor Yoo is coming to talk about expansion of executive power, a topic on which he is an authority.

    The Law and National Security Society believes that open dialogue and the free exchange of ideas between friend and foe is an essential element of any comprehensive education, particularly a legal one. We also believe that the positions of “disgraced” Professor Yoo are not as easily dismissed as the NLG maintains. This is not to say that we advocate these positions, neither as an organization nor as individuals, but rather that we recognize the importance of engaging allies and adversaries alike in constructive dialogue. We believe one important aspect of law school is that it is an opportunity for individuals to confront challenging and controversial ideas in an academic setting where learning can take place and different viewpoints can be expressed. Shutting the door in the face of people with whom we may disagree only widens the ideological gulf between adversaries and stalls social progress.

    Professor Yoo’s ideas and writings are challenging and indeed controversial, but hosting a speaker does not constitute an endorsement of his views. This is an opportunity to learn about expansion of executive power. Drexel Law students deserve the freedom to explore dissident ideas without being scolded by members of the legal community for conduct that is entirely appropriate. Several members of the Law and National Security Society executive board are members of the NLG and we thank our Chapter leaders for keeping us abreast of their opinions, but the Law and National Security Society espouses a position of open discussion on such topics, not summary dismissal of controversial viewpoints.

    Respectfully,
    The Executive Board, Law and National Security Society
    Drexel School of Law

    • Co-chair

      Hello, unidentified Executive Board. The message you’ve posted here was sent in e-mail to “myers@grantmyersllc.com.” This is not me, but K.O. Myers III, Esq., of counsel to my law firm, Grant Myers LLC (d/b/a The Grant Law Firm). But since Mr. Myers is currently living and working in the midwest, I did not see your e-mail until after end of business yesterday. Please forgive the chapter’s delay in response, which is in the pipeline between me and the co-chair of the Philadelphia chapter.

    • Co-chair

      Again, please forgive the chapter’s delay in response, which is:

      Read the memos. In particular, see the memo of 14 March 2003. First, look at Footnote 13, where Yoo states Constitutional authority contrary to his conclusion, and then dismisses it summarily rather than articulating facts and an argument against it. He essentially writes that although the Constitution explicitly gives Congress the power to “make Rules for the Government and Regulation of the [military],” he asserts without analysis or authority — merely a reference to another Office of Legal Counsel memo — that Congress in fact does not have constitutional authority to do so. Next, look anywhere in the memos for a reference to the Steel Seizure Case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). This case involves an interpretation of the President’s enumerated powers in the context of property seizures during war. Though the concurring opinions vary in reasoning, the holding of the majority in that case is direct contrary authority to Yoo’s assertion of sweeping executive power. Yet he fails to address any of the concurring opinions in his analysis, even though one or two of them would have given him at least a tenuous theory to build upon.

      Finally, Yoo failed to acknowledge that the U.S. military has outlawed waterboarding for over a hundred years. An American soldier was court-martialed for waterboarding a prisoner in the Spanish-American War, and the U.S. executed Japanese soldiers for waterboarding American P.O.W.’s during the Second World War. These facts were known — they were in all the papers at the time — but Yoo omitted them from his memos. He cited to a lot of other cases from the 19th century in the memos, but he left out these and the Steel Seizure Case. The Torture Memos are a terrible example of legal scholarship. If you submitted one of them as classwork, you would receive a failing grade. If you submitted them as attorney work product, you could end up in Yoo’s situation: possibly facing professional discipline for failing to give your client a complete legal analysis of the issue in the face of some of the highest stakes imaginable, national security.

      A dozen years after the memos were written, the CIA is still attempting to cover up their “tail wags the dog” provenance, and we’re still feeling the repercussions in American foreign relations. See “The CIA Doesn’t Want You to Know How Badly It Botched Torture” in the most recent issue of Newsweek: http://mag.newsweek.com/2014/04/04/cia-feinstein-torture-senate.html

      There is no controversy here. Torture is unconstitutional, illegal, and immoral; and the memos justifying executive power to torture were legally flawed. Yoo’s views behind the memos, on an expansive executive power that is not co-equal with the legislative and judicial branches of government, were discredited years ago. They are well outside the mainstream of legitimate legal scholarship. (Yesterday a journalist asked if the chapter believes that John Yoo is a war criminal; Drexel Law students should understand that, for a lot of people, that is not an unreasonable question to ask about him.) They don’t deserve equal time in a law classroom any more than does the Flat Earth Model in a science classroom. And if you really did want to encourage open dialogue, as you say in your letter, why did the student organizers publicize the event only via a Facebook page? Why did you not announce it on the law school’s website or your own student newsletter? Why not invite alumni or the rest of the Drexel University community to this event with such a well-known speaker? Why invite Yoo as a solo speaker, with no space for rebuttal? If a door has been shut on open dialogue, it has been shut by you.

      One final note. The Philadelphia chapter of the National Lawyers Guild is not a supervisory or an authoritative body of any student chapter of the Guild. The co-signers of the letter [1] envisioned people standing outside on the public area of the sidewalk and handing out leaflets, which as an exercise of First Amendment rights we believe is a better use of student time than listening to John Yoo. But students should feel free to do whatever they like, in accordance with the law and Drexel Law’s rules. With yesterday’s letter and this note, the chapter in no way calls for the event to be canceled. To the contrary, we have raised community awareness of the event for more open dialogue about Yoo’s legacy in the Torture Memos.

      Sincerely,

      Michele Grant, Co-Chair, National Lawyers Guild, Philadelphia Chapter

      Steve Gotzler, Co-Chair, National Lawyers Guild, Philadelphia Chapter

      [1] Although Erica Briant, Chair of the Drexel Law student chapter of the National Lawyers Guild, co-signed the first letter, she was unable to participate in any part of the drafting of this note.