By Lawrence Rosenthal
April 9, 2009
Yoo is also under investigation by the Justice Department's inspector general for his role in producing a number of controversial memorandums during his service in the department during the Bush administration. The memos include one stating that the president may authorize the torture of suspected terrorists.
I am a former federal prosecutor. Naturally, I have enormous concerns about any investigation of an attorney for providing legal advice to a client, especially when the client is the U.S. government. I am equally reluctant to voice harsh criticism of a colleague -- collegiality is greatly valued in academia. Yet the first obligation of the legal academy must be to its students. For that reason, I think it right to ask: Should Yoo be teaching law?
The so-called torture memorandum has drawn the most fire. The distinguished scholar Jeremy Waldron called the memorandum "a disgrace." Harold Koh, dean of Yale Law School, called the memo "perhaps the most clearly erroneous legal opinion I have ever read." I cannot add much to what has been written about the memo.
Recently, however, the Obama administration made public a memo dated Oct. 23, 2001, signed by Yoo and another former Justice Department official, Robert Delahunty. It concluded that "the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks."
This is what the 4th Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Under the Yoo-Delahunty memo, the military would be unconstrained by the amendment's prohibitions. It could search anyone's home, wiretap anyone's phone, or arrest and hold any citizen, all without a warrant, and based on the flimsiest suspicion. Could the military have abused this power? Well, there is a lot of bad intelligence floating around in the bowels of our government, and sometimes the military acts on it. Remember Iraq and its weapons of mass destruction?
The Keith case, a 1972 U.S. high court ruling, makes a critical point applicable here. It ruled that even the president could not authorize warrantless wiretapping "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." It explained: "Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely in the discretion of the Executive Branch."
To be sure, the Keith opinion did not decide whether surveillance of foreign powers or their agents must always be authorized by a warrant, but nothing in that decision even hints at the blanket exemption from the 4th Amendment that the Yoo-Delahunty memorandum awards the military.
The Yoo-Delahunty memo permits the military to engage in unconstrained search and seizure of even U.S. citizens on U.S. soil, without judicial review of even the grossest abuses. The 4th Amendment, however, unqualifiedly prohibits unreasonable search and seizure, even if it sometimes permits authorities to act without a warrant. Significantly, the Constitution provides that the right of habeas corpus -- the right to challenge the lawfulness of one's custody -- can be suspended in time of rebellion or invasion, but it permits no similar suspension of the right to be free from unreasonable search and seizure.
Not surprisingly, the Bush administration eventually recognized that the position taken in the Yoo-Delahunty memo was untenable. An Oct. 6, 2008, Justice Department memo had it right: "The Fourth Amendment is fully applicable to domestic military operations, though the application of the Fourth Amendment's essential 'reasonableness' requirement to particular circumstances will be sensitive to the exigencies of military actions."
Yoo may be a brilliant scholar, but it is the mission of a law school to train its students to practice law. Its professors should understand the responsibilities of a practicing lawyer, not just those of a scholar. Legal scholars who cannot distinguish between their own views, however sincerely held, and the need to advise clients to faithfully adhere to the laws we all must obey are a threat to the rule of law.
I do not know all the facts relating to Yoo's involvement in the memos that cause me concern. I hope the Justice Department will release its findings. At that point, a more complete assessment of Yoo's work will be possible. While I yield to no one in my respect for academic freedom, the memos reflect a kind of tunnel vision that I would not tolerate in a student's work and certainly not in the work of an attorney for our government.
Should incompetent or irresponsible lawyers be teaching law? As Justice Oliver Wendell Holmes once wrote: "The question answers itself."
Lawrence Rosenthal is a professor of law at Chapman University School of Law in Orange.
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