Posted by Craig J. Albert
Today's New York Times reprints a lengthy 2001 memo from John Yoo to Alberto Gonzales on the subject of the application of certain treaties and domestic laws to the conduct of the war in Afghanistan. We can discuss the content on another day, but I would like to point out an early gem. Yoo writes, on page 17, "Nonetheless, the President has the constitutional authority to determine that Afghanistan is a 'failed State,' so that the Conventions are currently inoperative as to that country." Hmmm, I think that needs some kind of citation to some kind of authority. Oh, wait, look, there's a footnote. Footnote: John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, California Law Review 2001.
Hey, wait a second! Surely Yoo isn't citing himself as the only authority for this idea that the President can decide that another nation is in such bad shape that it wouldn't be able to carry out its treaty obligations, so as to allow us to ignore our obligations under that treaty. If I look at that well-researched, comprehensive law review article (written in the same year as the memo), then surely there will be a further and deeper analysis, right? No, no such luck. It's actually a book review (to show that Yoo has read a book), but there's no authority whatsoever for the cited proposition. So, it's Yoo on Yoo.
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Maybe so, but this doesn't strike me as any more outrageous than (say) Ackerman's theory of "constitutional moments," which seems to say that the constitution can be changed extraconstitutionally, or (for that matter) most of the theories that I was taught in law school and after. Perhaps your point is that Yoo was writing a brief and did not present his idea as original. But the concept of a "failed state" has been out there for a while--a recent Google search yielded 36 million hits--so it is clearly not his invention.
The concept of a failed state, because it has lots of hits on Google, "has been out there for a while"? Is that a way of saying it's a valid concept? Yoo's bogus citation to himself was in the way of *authorizing* the President to act internationally.
That pretty clearly beats any of the whoppers to come out of New Haven for many, many years.
If Bruce Ackerman were in OLC and wrote a memo in which the crucial step relied on there having been a constitutional moment, surely he would be obliged to note that the theory of constitutional moments is his own, idiosyncratic, view, rather than simply asserting the point with a footnote to his own work
First, a bit of Google search strategy: Michael needs to put that search in quotation marks, because the 36 million Google results picks up stuff like "the plaintiff failed to state a claim" and "the solid state circuit failed".
Second, (and more important) is that while the concept of a "failed state" is nothing new, the idea that one nation can unilaterally declare that another nation is "failed" and then use that declaration as an excuse for ignoring treaty obligations seemed pretty novel to me. In my quick research, I wasn't able to find anyone who had espoused this idea before Yoo, but I'd really love to see it if it exists. (I don't buy Yoo's simplistic explanation that a treaty is just a contract, and therefore if one party can't perform, then the other side is free of all obligations.)
Third, my point was not that "Yoo was writing a brief and did not present his idea as original." In fact, Yoo was not writing a brief; he was writing an internal memo to guide policy, and under those circumstances, it was incumbent upon him to say that there was no authority to support his argument, other than his own say-so.
Hear hear to Jamie's, Mike's, and Craig's comments. Yoo's idea might not have been free of intuitive appeal, but it seems to me that he was obliged to make plain its utter novelty as a matter of legal precedent, and to give due attention to both contrary precedent and likely counterarguments.
Let me also while at it express hope that Ackerman, were he in OLC, would cite Pocock as well as himself -- for what might have been the 'Moment' crib. Cf. J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (P.U.P. 1975).
To be fair to Ackerman (and not to imply that Bob was being at all UNFAIR), Ackerman's academic work does indeed cite Pocock--but of course that's not LEGAL authority, and so Ackerman's view remains "idiosyncratic" as a legal matter, even if not wholly original.
As to the merits of Yoo's theory, I think Craig gets it right by emphasizing the unilateral-ness of the declaration as the key problem. Even if one assumes, arguendo, that a failed state is no longer a party to the treaty commitments of the non-failed state that preceded it in its territory, there remains the question of who decides what counts as a failed state. The problem with the Yoo theory is the problem with the Bush Doctrine: It's at least plausible to say that a state can act in pre-emptive self-defense rather than accept a substantial risk of attack, but with widely varying perceptions of risk and threat, the Bush doctrine is highly destabilizing. Likewise, here: Is Pakistan a failed state, given the control it has ceded to armed Islamists in large swaths of the country? What about India in the parts of the country controlled by Naxalites? Somalia? The Sudan? Etc.
All well taken, but I don't think it changes the basic point that Ackerman and Yoo--by taking defensible but extreme, rather poorly defined positions in support of preexisting policy goals--are doing more or less the same thing. Indeed, Yoo's position seems rather more defensible, since he admits the limits of his argument and is doing so in a lawyering rather than a pseudo-scholarly mode. The difference in reaction to them is basically political in nature.
I think that Michael Livingston has it exactly backward when he writes, "Indeed, Yoo's position seems rather more defensible, since he admits the limits of his argument and is doing so in a lawyering rather than a pseudo-scholarly mode." A "scholarly" mode would do little damage: a colloquium is sometimes a fun way to spend an hour, especially if there are free cookies, but people don't usually die as a result and lives don't change.
The purpose of Yoo's memo-writing was not to persuade any judge as to what the correct view of the law is. Rather, his purpose was to create a paper trail to document an "advice of counsel" defense, so that some very bad people could claim that the lawyers said that what they were doing was OK. It's especially outrageous for government lawyers to render prophylactic opinions, because they suffer no financial or professional consequences as a result of their own malpractice. That mindset -- that you can hide behind a lawyer who's either venal or unintelligent -- has done immeasurable damage to our profession.
This is similar to the torture memos that were released earlier this year. Perhaps the most shocking thing was how slipshod the basic technical quality of the lawyering was. When I spoke to non-lawyer friends about this, they didn't seem to understand this point. If a first-year associate in a New York law firm tried to submit a memo that was so thinly sourced and conclusory, he'd be in for a severe reprimand, but it's very difficult to make the lay public appreciate just how sloppy this work was.
I'm not sure which of two possibilities is more troubling. First, there is the idea that the lawyers in OLC thought this was acceptable work. Second, the idea that they knew it was CYA stuff and deliberately submitted slipshod, one-sided analysis. The first would indict the competence of the legal team, the second would indict their professionalism and integrity. My guess is it's some combination of (a) for the lower-level people and (b) for the higher-ups like Yoo.
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