Re: Yay, Cranks!

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RELEASE THE HOUNDS!


Posted by: OPINIONATED CRANK | Link to this comment | 02-20-09 6:43 AM
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What does Lon have to do with it?


Posted by: Minivet | Link to this comment | 02-20-09 6:48 AM
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Since MacManus hasn't shown up yet, I feel obligated to point out that sternly worded letters are poor substitutes for tar and feathers, torches and pitchforks or blindfolds and firing squads. Of course, nowhere did you or DeLong say that it's an either/or situation.


Posted by: Cyrus | Link to this comment | 02-20-09 7:07 AM
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Yoo is also the perfect guy to flip - I can't see him surviving even a single day in jail. He'd sing like Pavarotti.


Posted by: Ugh | Link to this comment | 02-20-09 7:26 AM
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Pavarotti was in jail?


Posted by: heebie-geebie | Link to this comment | 02-20-09 7:28 AM
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With all the focus on Yoo, I hope people don't forget to let their congresspersons know that it's long since time for impeachment proceedings against Jay Bybee. Not all of these guys are out of power now.


Posted by: potchkeh | Link to this comment | 02-20-09 7:31 AM
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Punishing Yoo with the loss of his job seems pretty minimal in light of what he did. Does anyone think he won't immediately find a new job, either at a new law school or in a Wingnut Welfare thinktank? Firing him is practically the definition of a slap on the wrist, and may trivialize his wrongdoing even more than doing nothing at all.

My preferred solution is actual prosecutions, or if political concerns preclude that, a really nasty investigation followed by a cleverly worded preemptive pardon. If neither of those are going to happen, that's fucking terrible, but it doesn't follow that we should "take what we can get," punishment wise.

Not firing Yoo has the additional advantage of standing (really) tall for academic freedom. I understand the arguments that it shouldn't apply to Yoo, but I think there are benefits to be had from holding the line, even in marginal cases.


Posted by: salacious | Link to this comment | 02-20-09 7:42 AM
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3:I only anwer to a properly spelled batshitsignal. I am not a fricking Scot.

1) I am, presumptuously, quite proud of DeLong. AFAIK, this is a pretty big deal.

2) Wearing my anarchist hat, the one with the extra tinfoil and propellor, I very much approve of prosecutions and persecutions at as low a level as possible, much lower than Yoo. Only when "Only following orders" is no longer available as a defense and moral escape will tyranny become impossible.

The preservation of authoritarian structures, perhaps lost to one asshole but saved for the next, is exactly why "don't blame the soldiers" or "don't prosecute the torturers" is the prevailing wisdom. They don't want, grunts, agents, or for that matter workers, to become conscious, responsible...free.


Posted by: bob mcmanus | Link to this comment | 02-20-09 7:43 AM
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I very much approve of prosecutions and persecutions at as low a level as possible, much lower than Yoo. Only when "Only following orders" is no longer available as a defense and moral escape will tyranny become impossible.

Damn fucking straight.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 7:49 AM
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7: Neither DeLong nor Berkeley have the power to prosecute Yoo et al. Berkeley does have the power to fire Yoo, and DeLong has influence within that institution. I think they should both do what they can.

I'm all for prosecutions too, but I don't think it follows that Berkeley doing all within its power to disassociate itself from Yoo does anything to diminish the chances that Yoo will be prosecuted for his crimes. It's not like there's some Centralized People's Committe for Cosmic Justice out there that must decide on one single response which precludes all others.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 7:52 AM
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Firing him is practically the definition of a slap on the wrist, and may trivialize his wrongdoing even more than doing nothing at all.

No, this isn't right. Berkeley can't prosecute Yoo, but Berkeley can fire him. DeLong isn't ruling out the possibility or desirability of prosecution, and termination and prosecution aren't mutually exclusive. DeLong is merely asking Berkeley to do the right thing that it can do and fire Yoo.


Posted by: Armsmasher | Link to this comment | 02-20-09 7:56 AM
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10: WMYBSALM?


Posted by: Armsmasher | Link to this comment | 02-20-09 7:57 AM
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12: Pwning is practically the definition of a slap on the wrist, and may trivialize your wrongdoing even more than not commenting at all.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:02 AM
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Only when "Only following orders" is no longer available as a defense

Just in case any Unfogged readers find themselves on the wrong end of a war crimes indictment, do be aware that "only following orders" isn't a defence, in situations where a genuine choice was possible. Several Nuremberg and Tokyo defendants got their necks stretched as a result of misunderstanding this one.


Posted by: dsquared | Link to this comment | 02-20-09 8:04 AM
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14: and as a result of having committed atrocities, obviously, hanging people simply for misunderstanding the "obeying orders" defence would be a bit draconian.


Posted by: dsquared | Link to this comment | 02-20-09 8:06 AM
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Not firing Yoo has the additional advantage of standing (really) tall for academic freedom. I understand the arguments that it shouldn't apply to Yoo, but I think there are benefits to be had from holding the line, even in marginal cases.

Why would this fall under the scope of academic freedom? (Or, maybe: why would we want to construe academic freedom broadly enough that it does?)


Posted by: essear | Link to this comment | 02-20-09 8:06 AM
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single response which precludes all others

I'm worried that, as a practical matter, firing Yoo would preclude other options. It removes the immediate pressure to "Do Something!" and that pressure is the only chance we have of implementing real sanctions against this fuck. Plus, it's gonna stir up the right-wing hornets nest, and I don't think the administration would be real eager to stick its head into an active swarm. Maybe I'm wrong about the political calculations, but from where I'm sitting we only have one shot at this.

That said, you're correct that DeLong and other members of the Berkley community have the right as well as the obligation to say "Get this guy out of our school."


Posted by: salacious | Link to this comment | 02-20-09 8:09 AM
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16: Precisely. He should be shamed, harrassed, fired, prosecuted, etc. not because he expresses pro-torture opinions, but because he has committed actual acts of aiding and abetting torture. He didn't just have opinions, he had the power to have those opinions followed.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:11 AM
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I wonder whether Korean-American men who resemble Yoo are having a hard time getting served at Café Strada and similar venues around Berkeley.


Posted by: Jackmormon | Link to this comment | 02-20-09 8:16 AM
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Oh, he'll get served . . . a subpoena! Ha haha ha!, probably not.


Posted by: Armsmasher | Link to this comment | 02-20-09 8:18 AM
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20: But maybe he'll get challenged to a dance contest . . .


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:19 AM
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Posted by: | Link to this comment | 02-20-09 8:22 AM
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15: You've gone soft, dsquared. Pop quizzes for everyone on the law of war; firing squads for those who fail!

19: This is Berkeley; wouldn't you think pre-emptively scorning forty-something Asian men would be overinclusive to the point of not being likely to occur to anyone? Come to think of it, I can't picture Yoo -- I suppose if he's really distinctive looking, resembling him might be a problem.


Posted by: LizardBreath | Link to this comment | 02-20-09 8:22 AM
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14,15:A bit complicated, and potchkeh perhaps can weigh in. There was this post at Balin's place...

Yoo has his purpose, and it was not to protect his superiors, at least directly. If I understand the precedents, a defendant can claim to be following the best legal advice/interpretations offered her.

For example, would we require a Lt to decide if Iraq is an illegal war, a violation of Geneva & Hague, a willful misinterpretation of AUMF? Do we demand that a soldier determine that Yoo's definitions of torture are incorrect?

The courts have said, that if an individual has almost any reason to believe that the legal advice comes from an "authoritative" source, she is not culpable.

Of course, the Nazis had their own lawyers and judges. And there were plenty of people in the 60s who made their own legal determinations.


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:26 AM
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10: It's not like there's some Centralized People's Committe for Cosmic Justice out there

And that's precisely why the people need to create Flying Justice Tribunals to deal with people like Yoo and his cronies.

When Adam delved, and Eve span,
Who was then the gentleman?


Posted by: minneapolitan | Link to this comment | 02-20-09 8:27 AM
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23: He isn't. (I'm racist.) Seriously though, take a look. The banality of evil and all that.


Posted by: Cyrus | Link to this comment | 02-20-09 8:27 AM
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24:Not Marty, nor the dwarf.

Jack Balkin's place, of course.


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:28 AM
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26: He's easy to spot because he's almost always wearing this home-made "America: FUCK YEAH!" button.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:29 AM
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And that's precisely why the people need to create Flying Justice Tribunals to deal with people like Yoo and his cronies.

Which "the people" are you talking about?


Posted by: | Link to this comment | 02-20-09 8:30 AM
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Oops. 29 was me.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:30 AM
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"because he has committed actual acts of aiding and abetting torture. He didn't just have opinions, he had the power to have those opinions followed."

Not exactly. It's that he wrote opinions *in bad faith* which allowed torture to happen. He probably could have written memo's advocating the legality of some forms of torture which would not have crossed this threshold into professional misconduct. People certainly have argued for the constitutionality of torture--Posner and Dershowitz, off the the top of my head--and while I really really disagree with their arguments, they do not fall into the same class of *bad faith* as Yoo. Yoo's sin wasn't "aiding and abetting torture," it was ignoring his professional responsibilities in order to aid and abet torture. There's a difference.


Posted by: salacious | Link to this comment | 02-20-09 8:32 AM
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Yoo prabably does not have the defense of 24.

Casually saying that of course "only following orders" is no defense is wrong. It has radical implications.

I had my anarchist hat on for a reason.

Is the income tax unconstitutional? Should I accept some SCOTUS decision about it?

How 'bout some revolution, as long as I am deciding which laws I want to follow?


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:34 AM
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31: Neither Posner nor Dershowitz have given anyone a "Get Out Of War Crimes Free" card.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 8:36 AM
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Posted by: | Link to this comment | 02-20-09 8:37 AM
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Why would this fall under the scope of academic freedom? (Or, maybe: why would we want to construe academic freedom broadly enough that it does?)

Rauchway has written extensively on this over at EoTAW. The consensus around here was that he's nuts, but if you want to see the strongest argument for this position, read him.


Posted by: JRoth | Link to this comment | 02-20-09 8:38 AM
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Is the income tax unconstitutional? Should I accept some SCOTUS decision about it?

You probably don't need to accept a Supreme Court decision to determine its constitutionality, since there's this whole amendment to the constitution that lets Congress levy an income tax. But then I'm guessing an actual anarchist wouldn't give a flying fuck about the constitution.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 8:39 AM
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33: But you know they would if they got half a chance.

Dersh strikes me as rather a loser homunculus, but Posner is one of my least favorite American public figures. Pernicious, smug, and utterly full of shit.


Posted by: JRoth | Link to this comment | 02-20-09 8:40 AM
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Posted by: | Link to this comment | 02-20-09 8:43 AM
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How 'bout some revolution, as long as I am deciding which laws I want to follow?

And "obeying orders is not a defense" does not really mean "I get to make up my own laws." What it means is that the military chain of command falls apart, to the extent that soldiers are more accountable to the law than they are to their superiors. Which, in and of itself, is pretty radical, since the entire point of having a military is to put those in charge of the military above the law. It's a pipe dream either way, though, just like prosecuting Yoo or Bybee or any American war criminal.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 8:44 AM
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I'm worried that, as a practical matter, firing Yoo would preclude other options. It removes the immediate pressure to "Do Something!" and that pressure is the only chance we have of implementing real sanctions against this fuck. Plus, it's gonna stir up the right-wing hornets nest, and I don't think the administration would be real eager to stick its head into an active swarm. Maybe I'm wrong about the political calculations, but from where I'm sitting we only have one shot at this.

If Yoo were the only likely point of attack, I could see (not nec. agree with) this argument, but any kind of investigation into Bush Admin wrongdoing has a lot of points of entry (despite the amnesty for telcos, wiretapping is still a big one - we don't need to flip a witness, we have Bush on tape announcing that he ignored standing law on the matter).

More importantly, I do think you've got the political calculus wrong. Obama wants to ignore Bush crimes because he's got his own agenda, and doesn't seem to like that kind of conflict; DC wants to ignore Bush crimes because they were complicit; the press wants to ignore Bush crimes because they don't like to cover real news, plus they calculate that it's better to please DC than to please the people. But if there's clear evidence that the people want action on Bush crimes, then that balance starts to shift.

Let me put it this way: imagine a situation where ex-Bush people were being fired every week, being served with civil suits, where their houses were being picketed, where the occasional death threat came across. The aforementioned groups would be horrified, and instinctively huddle together. But it wouldn't take long before the calculus changed, and it became clear that the choice was between vigilantism and official proceedings.

Investigating Bush is a strike at the heart of the permanent ruling class; it won't happen without grassroots action.


Posted by: JRoth | Link to this comment | 02-20-09 8:50 AM
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Pernicious, smug, and utterly full of shit.

Agreed, with the added malus of being prolific and inexplicably influential and respected.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 8:51 AM
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Yoo's sin wasn't "aiding and abetting torture," it was ignoring his professional responsibilities in order to aid and abet torture. There's a difference.

There's a difference, but I think this gets it exactly backwards. The generic "ignoring professional responsibilities" thing is secondary at best. If he had ignored his professional responsibilities by writing an equally stupid and mendacious memo about something nobody had any reason to give a shit about, nobody would give a shit about it. But he didn't: he aided and abetted torture. The procedural liberalism contortions around all this are maddening.


Posted by: potchkeh | Link to this comment | 02-20-09 8:52 AM
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If I understand the precedents, a defendant can claim to be following the best legal advice/interpretations offered her.

Which precedents? Now, I can see a sound argument that the United States Government could not prosecute someone for torture in a situation where the United States Government had assured the person that torture was perfectly legal. But if the Hague wants to go after the guy, I would be thoroughly shocked if he got very far with "But I was just doing what my commander told me and he said it was legal!"

"because he has committed actual acts of aiding and abetting torture. He didn't just have opinions, he had the power to have those opinions followed."

Not exactly. It's that he wrote opinions *in bad faith* which allowed torture to happen.

That would qualify as aiding and abetting, methinks. The classic law school example was the crowd who cheers a guy on as he batters a hapless victim -- lending encouragement aids and abets. Providing legal analysis in bad faith that you know will further a plan to torture hardly seems like a gray area -- I dare say, it might even meet the standard for conspiracy to commit torture. IANAProsecutor, of course.


Posted by: Di Kotimy | Link to this comment | 02-20-09 8:54 AM
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Mulling the situation over, I've decided I don't think Yoo should be waterboarded. Does this make me a procedural liberal?


Posted by: politicalfootball | Link to this comment | 02-20-09 9:04 AM
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JRoth:

Your point about multiple avenues of attack is a good one. Maybe we should just get a quick win on Yoo and go after something else. I'll have to think about that.

That said, "Let me put it this way: imagine a situation where ex-Bush people were being fired every week, being served with civil suits, where their houses were being picketed, where the occasional death threat came across. The aforementioned groups would be horrified, and instinctively huddle together. But it wouldn't take long before the calculus changed, and it became clear that the choice was between vigilantism and official proceeding"

is ludicrously tonedeaf. Especially on torture, but also on wiretapping etc, there simply is not the type of broad popular consensus you are imagining. The constituency for these issues is basically confined to the educated professional wing of the democratic party. Everyone else is either indifferent or actively sympathetic to the "just trying to protect america" framing.

D.C. and the media may have circled the wagons, but that does not mean that everyone outside the wagons is on the same side.


Posted by: salacious | Link to this comment | 02-20-09 9:05 AM
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Let me put it this way: imagine a situation where ex-Bush people were being fired every week, being served with civil suits, where their houses were being picketed, where the occasional death threat came across.

Do I detect the unfogged Overton Window shifting toward mcmanus?


Posted by: politicalfootball | Link to this comment | 02-20-09 9:07 AM
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46: We need Orange Post Titles!


Posted by: M/tch M/lls | Link to this comment | 02-20-09 9:10 AM
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39
the entire point of having a military is to put those in charge of the military above the law.

What does this mean?


Posted by: Cyrus | Link to this comment | 02-20-09 9:11 AM
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48: I think it means iir is trolling.


Posted by: Di Kotimy | Link to this comment | 02-20-09 9:17 AM
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"That would qualify as aiding and abetting, methinks. The classic law school example was the crowd who cheers a guy on as he batters a hapless victim -- lending encouragement aids and abets. Providing legal analysis in bad faith that you know will further a plan to torture hardly seems like a gray area -- I dare say, it might even meet the standard for conspiracy to commit torture. IANAProsecutor, of course."

Oh, I'm not arguing that it's a gray area. Just to be clear, I think Yoo should be strung up. I just want to be clear about what we are stringing him up for. It's not for saying torture is permissible. It's not even for saying torture is permissible while at the OLC. Its for saying torture is permissible because the Bush administration wants you to say it. It's the abdication of responsibility that makes Yoo an accessory here.


Posted by: salacious | Link to this comment | 02-20-09 9:22 AM
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I'm not sure what 39 means, but if I were going to say something related that's true, it would be that the whole point of having a military is that it makes certain acts (like killing people) legal that wouldn't be legal if performed by civilians. The law of war allows all sorts of mayhem that's self-evidently criminal outside of a military context.

(And "only following orders" is a perfectly good defense for underlings in that they're entitled to rely on their superiors' representations as to facts that would make their actions legitimate, without a whole lot of inquiry into them. "Shell coordinates X, Y" is a legal order during a war if X, Y is the location of a legitimate military target, but not otherwise. But the artilleryman obeying that order isn't a war criminal unless he knows the target isn't a military target; the responsibility is on the person issuing the order.)


Posted by: LizardBreath | Link to this comment | 02-20-09 9:23 AM
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35 Rauchway has written extensively on this over at EoTAW. The consensus around here was that he's nuts, but if you want to see the strongest argument for this position, read him.

I've read Eric's post here. Maybe there's more that I haven't read. As I understand it, he's saying that the only grounds for UC to fire Yoo is if "the protections of academic freedom should be stripped from this professor on the basis of his having committed a kind of scholarly malpractice". Now, maybe this is legally the only way the UC can fire Yoo; I don't know. But I think the reason for firing Yoo isn't "scholarly malpractice", it's that he did something which is shockingly, inarguably immoral that led directly to pain and suffering for others. As far as I can tell the argument Eric wants to use against firing Yoo for "moral turpitude" is that it's a slippery slope. But the "scholarly malpractice" approach actually looks more likely to lead to a slippery slope, from my point of view, as it requires more parsing of precisely what is and is not protected by academic freedom and where to draw the line between incompetence and malpractice.

People also make the argument that the university can't determine if Yoo is guilty, only the courts. I don't buy this one either. This isn't a question of legal guilt, it's a question of moral guilt, and it's not as if it's ambiguous whether Yoo wrote the memos. Suppose there were a faculty member who openly admitted to committing murder, but had been found not guilty of the murder in court. Wouldn't it be reasonable for a university to be able to fire him?


Posted by: essear | Link to this comment | 02-20-09 9:25 AM
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Suppose there were a faculty member who openly admitted to committing murder, but had been found not guilty of the murder in court.

Openly admitted to killing (presumably with some defense), or to murder? Under the latter, isn't it fairly implausible there wouldn't be something for which they could be tried and convicted in court, so there'd be no need to test this question?


Posted by: Brock Landers | Link to this comment | 02-20-09 9:30 AM
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By "this question" at the end, I mean whether it is reasonable for the university to fire him without a conviction in court.


Posted by: Brock Landers | Link to this comment | 02-20-09 9:31 AM
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This isn't a question of legal guilt, it's a question of moral guilt, and it's not as if it's ambiguous whether Yoo wrote the memos.

The clincher on this for me is that Yoo is a professor of law. I'd still want to see the son of a bitch fired if he were, say, an English professor, but the fact that he's a law professor makes this really easy.


Posted by: politicalfootball | Link to this comment | 02-20-09 9:31 AM
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re: 53

A prominent publisher in the UK claimed, recently, to have murdered someone. He then retracted it, and it was never pursued due to lack of evidence.

I can certainly think of other cases in which people have, literally, gotten away with murder.


Posted by: nattarGcM ttaM | Link to this comment | 02-20-09 9:33 AM
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53, 54: Eh, I didn't mean to concoct a scenario that made sense in detail, just to gesture at why I don't think there can be a clear argument that "moral turpitude" is insufficient reason for a university to fire a tenured professor.


Posted by: essear | Link to this comment | 02-20-09 9:33 AM
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51: Sure, but that's only because the underling then lacks the mens rea necessary to commit the crime -- not because "following orders" is itself a defense.


Posted by: Di Kotimy | Link to this comment | 02-20-09 9:34 AM
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You can make a plausible story -- faculty member killed someone. Incontrovertible evidence (dead body, next to videocassette of the killing with faculty member clearly visible doing it) of this was discovered in his house. Unfortunately, it was discovered by a police officer searching the house without a warrant, and so all evidence so discovered was inadmissible in court as 'fruit of the poison tree'. Faculty member can't possibly be convicted of the killing, but it's as certain as anything could be that he did it.

So, what's the university supposed to do?


Posted by: LizardBreath | Link to this comment | 02-20-09 9:34 AM
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56: OJ is going to find the real killer any day now.


Posted by: politicalfootball | Link to this comment | 02-20-09 9:35 AM
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Posted by: | Link to this comment | 02-20-09 9:36 AM
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58: Oh, true. But the fact that he's in the military allows him to maintain his innocent mens rea where a civilian couldn't -- there really aren't many circumstances where a civilian would be entitled to say "I'm innocent! My boss told me that blowing up the building with people in it was an okay thing to do!" but a soldier can do that as a matter of course.


Posted by: LizardBreath | Link to this comment | 02-20-09 9:37 AM
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59: Is it a professor of Life Sciences? It would seem less professionally relevant if it's a music professor.


Posted by: heebie-geebie | Link to this comment | 02-20-09 9:37 AM
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It's not even for saying torture is permissible while at the OLC. Its for saying torture is permissible because the Bush administration wants you to say it. It's the abdication of responsibility that makes Yoo an accessory here.

But there's plenty of good reason in Yoo's record to think that he sincerely believed his conclusions about executive power and its relationship to the constraints he was evaluating. If so, he's off the hook? No; it can't be the supposed opportunism that's the real sin here.


Posted by: potchkeh | Link to this comment | 02-20-09 9:38 AM
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Essear, I don't get how your standard avoids say, firing gay people for their "shockingly, inarguably immoral" behavior.


Posted by: salacious | Link to this comment | 02-20-09 9:42 AM
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64: I think to get to 'sincerely' you need to equivocate between 'What Yoo sincerely thought would be a good way to run the country' and 'What Yoo sincerely thought was a fair representation of the relevant precedent.' He might have been as sincere as anything in the first sense, but he really can't plausibly have been sincere about the second.


Posted by: LizardBreath | Link to this comment | 02-20-09 9:42 AM
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is ludicrously tonedeaf. Especially on torture, but also on wiretapping etc, there simply is not the type of broad popular consensus you are imagining. The constituency for these issues is basically confined to the educated professional wing of the democratic party. Everyone else is either indifferent or actively sympathetic to the "just trying to protect america" framing.

Well, I did say, "Imagine."

Seriously, I know that sort of grassroots action is near-impossible in this time or place, but it is true that over 60% of Americans support criminal and/or civil investigations of Bush crimes. Think about that. This is the biggest Beltway/America disconnect since impeachment. Congressional hearings into What Bush Did are supported by 3 out of 5 Americans, but are utterly beyond the pale for the groups I identified in 40.2.

I don't know how to break that disconnect, but I don't see Yoo's firing hurting any. If Beltway types start to see "made men" getting fired out in Real America, it might give them pause, if only to start treating people like Dingell with a little more respect when they advocate hearings.


Posted by: JRoth | Link to this comment | 02-20-09 9:43 AM
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64: Hmm. If he sincerely believed what he wrote and sincerely was just offering the administration his legal opinion without any particular stake in what they did with it, then maybe he *is* off the hook. It's the perceived sense that he knew the admin needed legal cover in order to go ahead with torture, and the providing of that cover with the intent to facilitate the torture that is the sin.


Posted by: Di Kotimy | Link to this comment | 02-20-09 9:44 AM
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45: The constituency for these issues is basically confined to the educated professional wing of the democratic party.
What about everyone on the left? I know lots of people, and the internet shows me more all the time, who aren't educated, professional or Democrats, who yet want to see some justice done.

29: Which "the people" are you talking about?
Ah, the people risen?

Capitalism died today. Or maybe yesterday, I don't know.


Posted by: minneapolitan | Link to this comment | 02-20-09 9:44 AM
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Posted by: | Link to this comment | 02-20-09 9:46 AM
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Capitalism died today.

Don McLean's next big hit!


Posted by: heebie-geebie | Link to this comment | 02-20-09 9:48 AM
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Potchkeh, I suppose I should add the alternative of horrendous incompetence. Which, in a position of responsibility, is also a sin.

For example, if I remember Balkin's discussion of the memo's, Yoo didn't make one reference to Youngstown when discussing the division of powers between Congress and the executive. That is either incompetence rising to the level of professional malpractice, or it's indicative of an intentional attempt to mislead.


Posted by: salacious | Link to this comment | 02-20-09 9:48 AM
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Essear, I don't get how your standard avoids say, firing gay people for their "shockingly, inarguably immoral" behavior.

You think a university could get away with that? It's not "inarguable", and a large fraction of the faculty and students would be outraged. Murder, torture: these are things that people generally agree are pretty bad.


Posted by: essear | Link to this comment | 02-20-09 9:48 AM
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I'm not sure what 39 means, but if I were going to say something related that's true, it would be that the whole point of having a military is that it makes certain acts (like killing people) legal that wouldn't be legal if performed by civilians.

Not actually sure this is true, you know. Killing people is legal for civilians if it's done in self defence. And the standard rules of engagement for UK troops (White Card Alpha) are pretty much "only in self defence, or defence of others". The point about the military is that it broadens the boundaries of "self defence" to the point where it covers any legitimate military target.


Posted by: ajay | Link to this comment | 02-20-09 9:49 AM
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there really aren't many circumstances where a civilian would be entitled to say "I'm innocent! My boss told me that blowing up the building with people in it was an okay thing to do!" but a soldier can do that as a matter of course.

Sure, but a bankruptcy lawyer can drive a family out of their home where the rest of us would be arrested for such a thing.


Posted by: JRoth | Link to this comment | 02-20-09 9:49 AM
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I think Yoo operates on the model wherein the subordinate completely abdicates all free will. It's a typical authoritarian mindset. He did what his bosses wanted, which was provide cover for torture. I honestly do not think he ever even considered the question of whether what he was doing was right or wrong. It was self evidently right because his boss wanted it done.


Posted by: togolosh | Link to this comment | 02-20-09 9:50 AM
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Capitalism died today. Or maybe yesterday, I don't know.

Does the telegram say that the funeral is tomorrow? Should we all show up?


Posted by: essear | Link to this comment | 02-20-09 9:50 AM
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Capitalism died today. Or maybe yesterday, I don't know.

And yet the capitalists are still alive. More's the pity.


Posted by: Brock Landers | Link to this comment | 02-20-09 9:52 AM
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And the standard rules of engagement for UK troops (White Card Alpha) are pretty much "only in self defence, or defence of others".

You have to stretch 'self-defense' really, really far, in a way that's not available to a civilian defendant, for it to justify perfectly normal, legitimate military action.


Posted by: LizardBreath | Link to this comment | 02-20-09 9:52 AM
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Posted by: | Link to this comment | 02-20-09 9:53 AM
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But there's plenty of good reason in Yoo's record to think that he sincerely believed his conclusions about executive power and its relationship to the constraints he was evaluating.

For the record, this isn't true. Yoo wrote an op/ed in '99 (or so) arguing that Clinton had clearly exceeded his powers as CiC Kosovo. It's not even a "torture is OK, but a BJ is crime" hypocrisy that's so sickeningly ubiquitous in DC: Yoo has pretty much openly advocated for the position that Presidents he votes for are above all laws, but Presidents he votes against are severely constrained.

This is part of why I find Rauchway's reasoning maddening: he says that only professional malfeasance is cause, but he absolutely refuses to let anyone look at the question (in every one of these discussions, he basically tries to shut it down as, "I'm not qualified to judge Yoo, neither are you, and it would be a breach of Academic Freedom for Berkeley even to investigate the matter.")


Posted by: JRoth | Link to this comment | 02-20-09 9:53 AM
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I think to get to 'sincerely' you need to equivocate between 'What Yoo sincerely thought would be a good way to run the country' and 'What Yoo sincerely thought was a fair representation of the relevant precedent.'

This is definitely true. There's no question that Yoo wasn't describing the state of the law as expressed in court precedents. And he should have--to the extent he didn't he was indeed insincere and professionally deficient.

But the executive branch is entitled--even required, in my opinion--to perform its own constitutional interpretation, and to participate in the development of a constitutional consensus among the branches of government and the public. This is particularly true with regard to questions of executive power, where the only way to move the consensus is for the executive itself to push. And this is pretty clearly a large part of the goal of the Yoo/Bybee memo, and--aside from its mendacious substantive goals, which is the whole point--a legitimate project (or at least far from clearly illegitimate). This is the sense in which I think these people may well have been sincere.


Posted by: potchkeh | Link to this comment | 02-20-09 9:55 AM
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To defend Rauchway, he's making what I think is a simple error, but not one that I can refute other than by appeal to my own sense of the professional norms. He wants to defer all questions of professional malfeasance to the Pennsylvania state bar; I find it implausible that the state bar is going to get involved in a politically contentious issue, and don't see a strong argument that UC Berkeley should defer.


Posted by: LizardBreath | Link to this comment | 02-20-09 9:58 AM
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56: The statue of limitations for murder is 25 years hereabouts.


Posted by: David Weman | Link to this comment | 02-20-09 9:58 AM
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Ok, but if you are using "inarguably" in a literal sense, then your standard doesn't catch Yoo. Plenty of people are willing to argue that what Yoo did wasn't immoral. They're wrong, but they will still argue it.

Also, it doesn't help you to argue that only the opinions of people in the Berkley community count for what is designated "inarguable." Among other things, UCB is a public university, so the public is a relevant stakeholder.


Posted by: salacious | Link to this comment | 02-20-09 9:59 AM
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77: It's an invitation, across the nation, a chance for folx to meet.


Posted by: minneapolitan | Link to this comment | 02-20-09 10:02 AM
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Yoo wrote an op/ed in '99 (or so) arguing that Clinton had clearly exceeded his powers as CiC Kosovo.

Yes, some of what Yoo has said about Clinton has been taken out of context and isn't really all that contradictory (at one point, IIRC, he criticized Clinton for not outright repudiating the WPA as an illegitimate restriction on executive authority). There may be some genuine hypocrisy involved, but that doesn't imply that he doesn't sincerely believe in essentially unrestrained executive power. He has, in fact, a significant academic publication record in this area, and although it doesn't ineluctably entail the conclusions he reached in the torture memo, it's certainly consistent with them.


Posted by: potchkeh | Link to this comment | 02-20-09 10:02 AM
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Like Jroth, I think Delong's letter makes an eventual prosecution marginallly likelier.


Posted by: David Weman | Link to this comment | 02-20-09 10:04 AM
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I suppose I should add the alternative of horrendous incompetence

Ok, so if he'd discussed Youngstown, argued that it didn't stand in the way (as, indeed, it doesn't), and been more honest about court precedent in general but still stuck to his conclusions about what the constitution actually means in relation to the statutes and international obligations in question, he's off the hook?

Again, no. Yoo is on the hook because of the nature of his substantive commitments, not (merely) because he reached them sloppily or in bad faith.


Posted by: potchkeh | Link to this comment | 02-20-09 10:07 AM
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Capitalism died today. Or maybe yesterday, I don't know.

Nah, just the banks' equity. And everything even closely related to banks (fucking GE and American Express).

It's hit the point where we almost don't have to care anymore. Not much you can do, except go into stasis for the next few weeks months years.


Posted by: Po-Mo Polymath | Link to this comment | 02-20-09 10:09 AM
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89: Ok, so if he'd discussed Youngstown... he's off the hook?

Youngstown is an easy stand-in for everything that's professionally wrong with the memos, but it's not anywhere near extent of it -- I'd have to go back and reread to pick them apart properly, but they're globally ridiculous. But if the memos were a legitimate representation of the actual state of the law, and Yoo were openly arguing for how that law should change, or for an admittedly non-standard interpretation of how the law should be understood, I'd say that he was a bad man, but not one that had committed professional or quasi-scholarly misconduct, and would be on the same bench with Rauchway, feeling very queasy about calling for his firing.


Posted by: LizardBreath | Link to this comment | 02-20-09 10:15 AM
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84: Swedes live under an oppressive regime indeed. Their nanny state government doesn't even give you a sporting chance.


Posted by: John Emerson | Link to this comment | 02-20-09 10:19 AM
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89: "he's off the hook?"

In a moral sense, no. In a legal sense, I think he has to be. I mean, the OLC has a job to do: giving the executive branch opinions about what the state of the law is. Intrinsic to that job is the possibility of being wrong. I mean, lets say the OLC issued an opinion before, I dunno, Loving, saying that the state could restrict interracial marriage, would they be "on the hook" for their substantive commitment to a policy of racist hatred? Again, maybe they deserve to be held in moral contempt, but I don't think they've done something legally wrong.


Posted by: salacious | Link to this comment | 02-20-09 10:21 AM
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as, indeed, it doesn't

Uh, I don't think you get to just assert this. Lots of lawyers have argued otherwise, and my non-lawyer reading of the case argues otherwise. In plain English, Yoo's memo said, "In time of war, the CiC's word is law." Youngstown says, "In time of war, the CiC has more room to maneuver, but he still can't do just anything he wants. Especially if Congress has already addressed the issue at hand."

Regardless, if a lawyer writes a memo saying, "Precedent says X. IMO, the Constitution says not-X," that's a very, very different thing from what Yoo wrote, which was, "The Constitution and precedent totally say not-X. Totally." A non-lawyer, handed the second memo, would be reasonable and justified in thinking that, legally, he was in the clear. Faced with the first memo, a non-lawyer has to recognize that he's in a gray area at best, and probably shouldn't commit war crimes on the basis of the memo.

IMO, you need both the professional malfeasance and moral vacancy of Yoo for Cal to be able to go after him. If the law really said what Yoo said it did, then the law is immoral, but it's hard to argue that Yoo was uniquely culpable. And, of course, if he bent the law to help free a jaywalker, it's hard (although still possible) to justify going after him. But put them together? The man has nothing to stand on.


Posted by: JRoth | Link to this comment | 02-20-09 10:21 AM
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But if the memos were a legitimate representation of the actual state of the law, and Yoo were openly arguing for how that law should change, or for an admittedly non-standard interpretation of how the law should be understood, I'd say that he was a bad man, but not one that had committed professional or quasi-scholarly misconduct,

Or a criminal. If the law is clear that torture is criminal conduct, and Yoo writes a memo saying "go ahead and torture, it is not criminal conduct" knowing full well that the state of the law is to the contrary and that the people receiving the memo will use it as a license to torture, then he is knowingly soliciting, encouraging, abetting (pick whichever you like) the commission of criminal conduct.


Posted by: Di Kotimy | Link to this comment | 02-20-09 10:22 AM
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If it turns out that we can't try Khaled Shiekh Mohammed for 3,000 counts of murder, you know who's fault that will be? Not some bleeding heart liberal's. Nope: John Fucking Yoo.

Like to get this into the narrative . . .

(The Executive can make it's arguments, but it doesn't get to have its own facts. Someone who says that the Supreme Court said in Quirin that the Executive can create tribunals to try captured saboteurs, but reserved on the question of whether Congress can -- in the course of arguing for a particular view of Executive power -- is showing some cards, and they're fake).


Posted by: CC | Link to this comment | 02-20-09 10:26 AM
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If it turns out that we can't try Khaled Shiekh Mohammed for 3,000 counts of murder, you know who's fault that will be? Not some bleeding heart liberal's. Nope: John Fucking Yoo.

Totally and completely true. But you know how it will play in Peoria? Uproar about these ridiculous liberal technicalities and public pressure to get that shit out of the constitution.


Posted by: Di Kotimy | Link to this comment | 02-20-09 10:28 AM
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89 -- I think Youngstown does stand in the way. And I think a correct statement of the law would have driven to different conclusions.

This was the OLC, not the SG's office.


Posted by: CharleyCarp | Link to this comment | 02-20-09 10:29 AM
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I know this has been noted before, but goddamn, LB's commenting skills--her ability to articulate an idea more quickly and clearly than another commenter clumsily reaching for that same idea--are uncanny.


Posted by: salacious | Link to this comment | 02-20-09 10:30 AM
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99: Geez, I know this is well meant and I do appreciate it, but don't say stuff like this -- I get all self-conscious and tongue-tied. Also, Kobe!


Posted by: LizardBreath | Link to this comment | 02-20-09 10:32 AM
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The ban on evidence produced by torture isn't like Miranda, so new creation. It's 400 years old. You'd be hard pressed to find many judges at all willing to go for it.

I've no doubt that many in the O'Reilly wing will bitch and moan, but that'll always be a minority, and is an ever shrinking minority at that.


Posted by: CharleyCarp | Link to this comment | 02-20-09 10:32 AM
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94: Sorry, only asserted it because I think it's a side issue. Youngstown is unquestionably relevant. But Youngstown's holding was relatively narrow. The part that everyone gets excited about is a concurrence, and it's been influential as a framework for evaluating claims of executive power, but it doesn't draw the kind of clear lines that would make it directly contradictory to Yoo's conclusions.

I hope it's very clear that I'm not committed to the position that Yoo acted competently or in good faith. Certainly, without question, some aspects of his memo were neither. My point is that it's hardly impossible for him to have written a "competent", "good faith" memo reaching the same conclusions.* And I don't think that, if that were the case, he'd be off the hook.

*unless you define his conclusions as per se incompetence or bad faith, which I'm fine with, but let's be honest that we're not being as procedurally detached as everyone seems to be bending over backwards to try to be.


Posted by: potchkeh | Link to this comment | 02-20-09 10:34 AM
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I agree with 91, but the endless posing of (and emphasis put on) a hypothetical world in which torture was not illegal pisses me off. It is very, very clear that torture is illegal under the then-current law Yoo was interpreting. The problem with Youngstown isn't that Yoo didn't cite it, it's that it is precedent that clearly makes a significant portion of Yoo's interpretation plainly wrong. Saying "oh, if torture were legal Yoo would have a point" is really besides the point.

The Yoo situation doesn't analogize well to a lot of situations that folks seem to want to use as analogies. The memo was certainly not like an academic article or expression of scholarly opinion, because of its real world consequence. But it also wasn't really like a legal research memo that a lawyer would write for a private client -- an OLC memo is binding on the federal government, not merely advisory, and it has both the formal and practical effect of determining the legal range in which the government can operate. It's much closer to judging than to lawyering, and in many ways I think that Yoo's closest analouge is a corrupt judge who willfully ignores the law in order to facilitate a criminal conspiracy, something like the Scranton PA juvenile court judges. But it's a pretty unique situation, and the best precedent is probably the Nurenberg treatment of Nazi lawyers and judges to which Scott Horton refers.


Posted by: robert halford | Link to this comment | 02-20-09 10:35 AM
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But it also wasn't really like a legal research memo that a lawyer would write for a private client -- an OLC memo is binding on the federal government, not merely advisory, and it has both the formal and practical effect of determining the legal range in which the government can operate. It's much closer to judging than to lawyering, and in many ways I think that Yoo's closest analouge is a corrupt judge who willfully ignores the law in order to facilitate a criminal conspiracy, something like the Scranton PA juvenile court judges.

Right. I've been circling around this and having trouble saying it, but a real problem is that a legalistic reading of the professional ethics rules just doesn't cleanly apply to Yoo's job, because Yoo's job doesn't work like any other job outside the OLC and the ethics rules aren't set up to apply to it.


Posted by: LizardBreath | Link to this comment | 02-20-09 10:39 AM
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What does this mean?

It means that in a world run by rival gangs, the military is the biggest gang around, and the gangsters in charge get to decide who the law does and does not apply to. There's a reason why Kissinger will never be tried for war crimes, and it's the same reason Bush, Cheney, Rumsfeld, et al will never be tried for theirs, and the same reason why Harry Truman and Franklin Roosevelt were never tried for theirs. Eisenhower overthrew democratically elected governments in Iran and Guatemala, Reagan and Bush I supported terror and mass murder in Latin America and the Mideast, Clinton starved god knows how many in Iraq. The law has never applied to the president of the United States, except when it became politically convenient for others in power to pretend that it did.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 10:42 AM
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102: OK, fair enough, and I take your point.

My point is that it's hardly impossible for him to have written a "competent", "good faith" memo reaching the same conclusions.* And I don't think that, if that were the case, he'd be off the hook.

Not sure this (the first part) is actually true tho. I mean, I agree that, with enough sophistry, you could probably get close to the actual memo's conclusions. But for the memo not to be evidence of malpractice, it would have to make the sophistry apparent, at which point the memo is useless for its intended purpose. As I said, even if you build a really kickass argument for why the Constitution really says not-X, once you acknowledge that precedent goes mostly the other way, the memo can't do its job as carte blanche.

Remember, the CIA was demanding a memo that put their guys in the clear. A memo that provides a legal approach for how you might mount a defense isn't the same. Arguably, without the exact memo that Yoo and Bybee wrote - a memo that dishonestly makes unequivocal claims - the CIA refuses to "just follow orders."


Posted by: JRoth | Link to this comment | 02-20-09 10:44 AM
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"I've no doubt that many in the O'Reilly wing will bitch and moan"

When we talk about "playing in peoria," we have to distinguish two different groups that, for some reason, all live in peoria. The first group is the Limbaugh/O'Reilly wing, who are going to be whiny bitches no matter what Obama does. His stated policy on torture could be giving everyone a unicorn and they would complain that their unicorn doesn't fly. We shouldn't give two shits about how Obama's policy plays in this Peoria.

The second Peoria is moderate republicans(they do exist, in the electorate if not in congress), independents, and conservative democrats. All of these groups are persuadable, and for this issue, more than most, framing is vital. If this issue is cast as "they may have screwed up, but they were trying to protect America," we lose. If it's framed like CC wants, as "the Keystone Kops were roaming around interfering with real soldiers and policemen, while simultaneously buggering the memory of George Washington," we win.


Posted by: salacious | Link to this comment | 02-20-09 10:47 AM
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What JRoth said. Yoo could probably have written a competent, good faith memo, that accurately stated the law and 'reached' the same conclusion. But he would have had to 'reach' that conclusion by some means such as 'Despite the overwhelmingly contrary precedent, I believe the proper interpretation of the Consititution is...'. And that's not functionally the same memo as the ones he wrote.


Posted by: LizardBreath | Link to this comment | 02-20-09 10:48 AM
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98: Just to be entirely clear, of course I do think Youngstown is radically at odds with Yoo's conclusions; I simply meant that he could certainly have addressed it and and made plausible (for lawyerly values of plausible) arguments cabining the holding and distinguishing it from his subject.


Posted by: potchkeh | Link to this comment | 02-20-09 10:50 AM
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106, 108: right. I don't think we disagree all that much, except that I think even if Yoo was above-board about the nature of his conclusions--which he clearly should have been--he still ought to hang. Because the substance of those conclusions is the real problem, not the way he reached them.


Posted by: potchkeh | Link to this comment | 02-20-09 10:53 AM
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110: I don't see how get around the problem that the law is occasionally going to be consistent with terrible injustices. In those cases, when a lawyer is asked what the law is, how would you have him respond?


Posted by: salacious | Link to this comment | 02-20-09 11:00 AM
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Yoo was above-board about the nature of his conclusions--which he clearly should have been--he still ought to hang.

Then we start getting into free-speech issues. Yoo wasn't himself committing crimes, or ordering that crimes be committed. He was (in your hypothetical) stating an opinion that he thought certain acts shouldn't be regarded as criminal. I'm not seeing this as a justification for any repercussion beyond disapproval and shunning. (That conclusion only applies to the hypothetical where the memos were legitimate legal work. In the real world, I want him fired.)

And I second salacious's question from 111.


Posted by: LizardBreath | Link to this comment | 02-20-09 11:04 AM
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111: That may be a problem in some cases, but it's not a problem here, because the law is not consistent with the terrible injustices we're talking about. Yoo was wrong, in a particularly evil way. Whether or not he thinks he's right is beside the point.


Posted by: potchkeh | Link to this comment | 02-20-09 11:07 AM
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Another decent -- but not perfect -- analogy to Yoo's situation is a tax opinion, formally issued by a law firm, that badly misreads the law and allows its clients to practice tax evasion. In a criminal tax case, the clients can point to the legal opinion as part of a defense that their tax evasion was not illegal. But if the opinion is bad enough, the government can prosecute the lawyers that issued the shoddy opinion

This analogy sheds some light on the "good faith" issue. If a tax opinion is obviously bad enough, the feds will conclude that the lawyers intended the tax opinion to facilitate a criminal tax evasion scheme. In so doing, the relevant question isn't what the bad tax lawyers believed in their heart of hearts -- you don't need a memo saying "hey, I'm going to make up the law" -- but whether the tax opinion is so facially incompetent and aggressive as to indicate an intentional scheme to defraud the government.

In Yoo's case, I don't think we need to reach a conclusion, one way or another, as to whether or not Yoo "knew" he was breaking the law -- the shoddiness of the memos themselves, combined with the circumstantial evidence that they were created to facilitate torture, should be enough to conclude that Yoo had the relevant intent to act outside of the law.


Posted by: robert halford | Link to this comment | 02-20-09 11:09 AM
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I do not agree with 110. Yoo's central point is a vision of Executive power that has no legal support, and cannot be honestly argued. He had to lie about the law -- the only honest conclusion he could have reached is that they needed legislation to do what they wanted.

I agree that the crime is in the end, not the means. But the means shows his mens rea.


Posted by: CharleyCarp | Link to this comment | 02-20-09 11:11 AM
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114 s/b "tax evasion was not willful."


Posted by: robert halford | Link to this comment | 02-20-09 11:12 AM
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114 is very interesting - I don't recall anyone in the last discussion bringing up the tax parallel. People were hunting for it, but I don't know that they found it.


Posted by: JRoth | Link to this comment | 02-20-09 11:14 AM
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It is. I was hunting around for a circumstance where your own client would actively and wrongfully want you to lie to them about the law (not just take aggressive positions, but literally misrepresent the state of the law) and couldn't come up with one. But tax opinions (not that I work in that area) do seem to work pretty well.


Posted by: LizardBreath | Link to this comment | 02-20-09 11:17 AM
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Last time this came up, there was a tax opinion prosecution going on in NYC. I brought it up here and there -- maybe to DeLong, I don't remember -- but too many people want to reach for the free speech model, although it's plainly inapplicable.


Posted by: CharleyCarp | Link to this comment | 02-20-09 11:17 AM
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112: He authorized torture. If authorizing torture is actionable, I wouldn't expect that it would depend on whether or not the person authorizing it genuinely (but wrongly) believed that authorization to be legitimate. But I really don't know: I was speaking figuratively when I said he should hang.


Posted by: potchkeh | Link to this comment | 02-20-09 11:18 AM
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Yoo does have one precedent: Carl Schmitt.

I now think that Leo Strauss was just a proxy for Strauss's Nazi friend Schmitt. Strauss was really baffled and hurt when Schmitt stopped answering his letters. In some respects he seems to have been quite the dim bulb.


Posted by: John Emerson | Link to this comment | 02-20-09 11:20 AM
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But there is a problem with [the academic freedom defense of] Professor John Yoo. The problem is that John Yoo is a weathervane. Yoo's Torture Memo of 2003 says that President Bush's commander-in-chief power is without limit save for impeachment itself--that no matter what treaties the United States has signed or laws the United States congress has passed, it is unlawful for any member of the United States armed forces to disobey a presidential order to torture prisoners. But only three years before Professor Yoo sang a very different tune. In a 2000 article, "The Imperial President Abroad" , Professor John Yoo writes that President Clinton's commander-in-chief power is crabbed and restricted. Yoo states that President Clinton has exceeded its bounds: "accelerat[ing] disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law." How has he exceeded the bounds of his powers as commander- in-chief?

(1) By "render[ing] the [Congressional] War Powers Resolution a dead letter..."
(2) By using "troops... not to achieve total victory... but... more limited goals... whose long-term benefits for American security are unclear..."
(3) And by placing "American troops... under... non-American... commanders... threaten[ing] that basic principle of government accountability... [for] foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..."

That Professor John Yoo could write "The Imperial President Abroad" in 2000 and the "Torture Memo" in 2003 demonstrates that he does not believe what he writes--at least not for any meaning of "believe" that any of us would recognize.

Academic freedom is a powerful and important principle. But I do not believe it provides a shield for weathervanes. I do not believe it shields those whose work is not the grueling intellectual labor of the scholar and the scientist but instead hackwork that is crafted to be convenient and pleasing to their political master of the day.


Posted by: Brad DeLong | Link to this comment | 02-20-09 11:56 AM
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122: Academic freedom doesn't include the right to change your mind? Or the right to respond to changes in the way the wind is blowing?


Posted by: peep | Link to this comment | 02-20-09 12:27 PM
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Academic freedom is the right, nay, the obligation, to IGNORE the way the wind is blowing and mulishly follow your own path for decades beyond the point where it should be abandoned as a dead end.


Posted by: Cryptic ned | Link to this comment | 02-20-09 12:33 PM
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I was hunting around for a circumstance where your own client would actively and wrongfully want you to lie to them about the law (not just take aggressive positions, but literally misrepresent the state of the law) and couldn't come up with one. But tax opinions (not that I work in that area) do seem to work pretty well.

I think Halford's argument from up there about the juvie judges is closer to being on point.

That is, you (LB, as an example, because I know you aren't even slightly shady) have a client who asks you in what circumstances it is legal for the client to rob banks. Regardless of what you say to them at that point, you proceed to write an opinion that says that John Q. Doe is, in fact free to rob banks because his family has been in the United States since before there was one, and because they protested the signing of the Constitution, then John Q Doe inherits the rights of those people who 'refused' the Constitution, and is therefore free to rob any banks he wants because the Federal and state government laws against bank robbery do not apply to John Q. Doe. (This is the 'maritime court' argument in a different form.)

The argument would be specious. Both you and Doe would eventually go to jail, even if you had been utterly deranged and for some reason actually believed the argument.

Yoo could have written an opinion that said the president was entitled to act, in extremis to protect and defend the United States, and that soldiers under his command would be obligated to follow those orders, even though they were illegal. And that both the President and the soldiers who followed such an order would be legally liable afterwards. That's basically the argument Jefferson made with regards to the Lousiana purchase: it was unconstitutional, but it needed to be done, and nobody else should or could do that on a regular basis.

Yoo's actual argument seems (it's been awhile, sorry) to be to take the above and then say that that because the president is understood to be able to act in extremis, that all situations are in extremis and he can act any way he wants all the time and without criminal liability, and therefore the Constution never applies, and therefore it has been negated, and is merely a meaningless scrap of paper along with every other treaty and act of Congress. If that's true, then John Yoo does not actually need to write an opinion saying that, since it's true regardless of what he says, and since he has negated everything, his own authority to negate everything is meaningless. So either his opinion is worthless, or he isn't a lawyer, since no one is a lawyer.

Yeah, that's a little cutesy, but my point is that he isn't engaged in normal lawyerly malfeasance, he's acting to toss the entire legal profession (including courts and judges) in the garbage, more or less directly. Unless the tax cheat is making an argument that evading taxes is ok because the government itself is illegitimate. (And actually, Halford's comparison isn't quite extreme enough either.)

Is he not the equivalent of a judge sitting in court repeatedly declaring, 'Hang all the lawyers! Anarchy now!'?

The problem I have is that I do not know what doctrine covers that (other than, 'He's a nut!'). Someone must have done something similar at some point. Surely there's something to deal with lawyers that declare the law non-existent and try to give themselves a get out of jail free card. (Obviously, it would be fairly obscure: rarely would a lawyer declare his profession pointless while attempting to continue engaging in it.)

max
['Have you gone to the gym today, BTW?']


Posted by: max | Link to this comment | 02-20-09 12:42 PM
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Further to 81/87 and now 122, I still think the hypocrisy re: Clinton charge is not going to support the "weathervane" charge. From the article (a Cato talk, really) DeLong quotes:

I do not find the violation of the War Powers Resolution to be as troubling as those critcs once did--critics who fell remarkably silent during the Kosovo conflict. I believe that the Constitution--through the Commander in Chief and Executive Power Clauses--provides the president with the constitutional authority to use force abroad, subject to congressinal control over the purse.

In other words, rendering the WPR a dead letter is a good thing, as far as Yoo's concerned, even when it's a Democrat doing it. He goes on to accuse Clinton of his own hypocrisy for paying lip service to the WPR while (legitimately, in Yoo's view) ignoring it. The criticism of Clinton in that piece is mainly about delegating too much to international institutions, which is a distinct issue. And he's got a 2000 law review article on the same topic of Clinton and Kosovo (abstract here) that's a fuller development of this constitutional defense of Clinton's unilateral exercise of executive power.

Again, not trying to prove that Yoo is 100% hypocrisy-free, I'm sure there are genuine examples of outright partisan hackery in his record. But he really does believe (at least a good portion of) this shit.


Posted by: potchkeh | Link to this comment | 02-20-09 12:44 PM
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LB, as an example, because I know you aren't even slightly shady.....

One more person drinks the Koolaid.


Posted by: John Emerson | Link to this comment | 02-20-09 12:50 PM
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It's like people don't even remember the 'used to work for Big Tobacco', bit.


Posted by: LizardBreath | Link to this comment | 02-20-09 12:58 PM
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She just bats her big brown eyes at a guy and ethics means nothing to him.

But then, that's max.


Posted by: John Emerson | Link to this comment | 02-20-09 1:00 PM
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Posted by: | Link to this comment | 02-20-09 1:10 PM
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Not sure the tax opinion analogy gets you that far.


Posted by: Ugh | Link to this comment | 02-20-09 1:17 PM
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131: What it does is establish that, in real, settled law, we have an example of a situation in which a lawyer tailoring an opinion in flagrant disregard of the actual state of the law is considered to be, prima facie, doing wrong, regardless of the sincerity of his views or his ostensible intentions.

It's not that you'd literally follow the same process to nail Yoo. It's that it kills the, "But if Yoo really believed that to be the law" defense. If Yoo really believed matricidal cannibalism to be legal, and told his client that, it wouldn't reduce by one bit his liability/complicity in the crime. Non-lawyers in this debate have kept trying to make this claim, but the tax example shows that it doesn't hold water.


Posted by: JRoth | Link to this comment | 02-20-09 1:41 PM
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132: but Yoo's defenders aren't making the "but if Yoo really believed that to be the law" defense to argue that he should have no legal liability, but to argue that U/C taking action against him is potentially worrisome from the perspective of academic freedom.

I think they should fire him, but I think it's a closer question than a lot of people are admitting.


Posted by: Brock Landers | Link to this comment | 02-20-09 1:47 PM
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It's not my area, obviously, but I am really not getting the "academic freedom" argument. He didn't write the memos as an academic exercise. They weren't designed as an element of intellectual discourse. I mean, fine, if he wrote a law review article making exactly the same arguments, sure, definitely, academic freedom. But this seems like a different creature entirely, no?


Posted by: Di Kotimy | Link to this comment | 02-20-09 1:51 PM
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I've always agreed with 134 -- I don't see why "academic freedom" is the right frame for this at all, since he wasn't working in his capacity as a scholar. But all of the academics seem to disagree.


Posted by: Robert Halford | Link to this comment | 02-20-09 1:54 PM
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133: Well, look. Let's say in case 1, we have a moral philosopher who argues, somewhat controversially and none too convincingly, that murder isn't morally wrong. And then let's say we have case 2, where that same moral philosopher goes out and actually kills someone. It seems to me there's something different going on here. One is an academic exercise, and one is something that produces an actual corpse.


Posted by: inaccessible island rail | Link to this comment | 02-20-09 1:57 PM
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134: presumably "academic freedom" encompasses the idea that tenured faculty should not generally be fired for non-criminal activities in which they engage outside of the classroom, right? Except, of course, in certain extreme circumstances, which is where the "moral turpitude" enters the picture. (Which is the grounds on which I believe he should be dismissed.)


Posted by: Brock Landers | Link to this comment | 02-20-09 1:57 PM
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121: Schmitt is distinguishable from Yoo, insofar as Schmitt is not boring.


Posted by: Flippanter | Link to this comment | 02-20-09 1:58 PM
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128: It isn't that people have forgotten that you worked for some evil industry, but that you were always a bit coy for which one in particular you worked, LB. That said I'm ever so slightly disgusted.


Posted by: Tiny Hermaphrodite | Link to this comment | 02-20-09 1:59 PM
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Let's put it this way: if put to a faculty vote, how many tenured professors across the U/C system, if fully briefed on the facts and circumstances of the university's case against Yoo, would vote that he should not be fired? I'll pick a lowball number: 5%. To the extent they aren't confused about the facts, etc., but are instead fully in agreement with and supportive of what Yoo did, are those people also guilty of moral turpitude? Should they also be fired?


Posted by: Brock Landers | Link to this comment | 02-20-09 2:04 PM
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139: I don't remember her being coy at all about the fact that it was the tobacco industry.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 2:05 PM
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Follow-on to 140: remember, we're not firing Yoo for a criminal action (which I think we all agree the university really is not in a position to judge), we're firing him for moral turpitude. So, about those professors in agreement with him...?


Posted by: Brock Landers | Link to this comment | 02-20-09 2:06 PM
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And, again, to be clear: I think he should be fired. But it's not a simple decision.


Posted by: Brock Landers | Link to this comment | 02-20-09 2:07 PM
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And then let's say we have case 2, where that same moral philosopher goes out and actually kills someone.

With a trolley? Is that someone fat? These are important factors to consider.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 2:07 PM
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141: Yep, you are right I should have googled first. And I shouldn't post while drinking.


Posted by: Tiny Hermaphrodite | Link to this comment | 02-20-09 2:08 PM
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145: If you weren't so damn tiny, you could probably hold your liquor better.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 2:09 PM
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I don't think it's a good argument that Yoo's intention matters on academic freedom grounds, because there's nothing about academic freedom that says it only applies to views one personally endorses. (I.e., I could write a piece that played devil's advocate, examining arguments for torture, and it would be protected.) The problem doesn't seem to be what Yoo believed or didn't believe, but whether writing those memos was criminal (by telling a client something that was illegal was legal, and the case is made stronger by the fact that the argument was so bad that it's hard to believe that it was a good faith mistake.)


Posted by: Cala | Link to this comment | 02-20-09 2:09 PM
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132: Wait, what? Are you talking about the NY tax opinion prosecution CharleyCarp mentions in 119 in particular, or the incentives for tax opinion writing in general?

I'll admit to skimming the thread so maybe I missed something.


Posted by: Ugh | Link to this comment | 02-20-09 2:12 PM
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Brock, I don't understand your argument. Acting in their capacity as academics, tenured law professors have the right to say crazy, incorrect and politically motivated things about the law. They are also free under the first amendment to have whatever thoughts they want. So yes, professors who agreed intellectually with Yoo would be protected by academic freedom.

But law professors don't get the protection of academic freedom when they are acting as lawyers, not scholars -- they are subject to a different set of rules and responsibilities. And they certainly don't get the protections of academic freedom when they're acting in the quasi-judicial context of the OLC, which has its own, heightened rules and responsibilities.

The former is free speech, or, in the context of the university, academic freedom; the latter is committing a crime, or at least an act in grave breach of professional and general ethics.

And a law school, which exists to train lawyers and is in the context of the legal profession, has an interest in ensuring that its faculty members aren't committing crimes or ignoring the law in order to facilitate torture when they take on roles outside of the academy. John Yoo abandoned his role as a scholar -- he wanted to take an active position in government. And he used that governmental position to commit a crime and/or gravely immoral acts that he never could have committed from his position as a professor. But now he wants to hide behind academic freedom to protect his job. I don't see how any value of academic freedom is enhanced by protecting professors from the consequences of grave errors in their non-academic activities. If professors want the protections of academic freedom, they should act as academics. If they're not acting as academics, they shouldn't expect the same rules to apply. Sometimes, of course, there will be cases in which its unclear whether or not a professor was "acting as an academic." But that is not the case here.

Yet another try at an analogy: academic freedom allows a business professor to argue that backdating stock options is a legitimate business practice. But if the same professor ran a start-up venture on the side and started backdating options, he is no longer operating in the context of academic freedom and, you had better beliefe that if the business school thought his actions were sufficiently bad, his tenure would be revoked.

BTW, the last time this came up, there was a lot of discussion of Yoo's actual employment contract, and as I recall it was clear that the university could take action against him for work outside of his academic role that reflected poorly on the ideals of the university,


Posted by: Robert Halford | Link to this comment | 02-20-09 2:19 PM
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And I shouldn't post while drinking.

Posting drunk is a great unfogged tradition.


Posted by: CJB | Link to this comment | 02-20-09 2:20 PM
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150: "drunk" s/b "Becks style".


Posted by: M/tch M/lls | Link to this comment | 02-20-09 2:25 PM
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Mmm. I don't think Yoo's actions are covered by academic freedom, but it's not the mere fact that they were outside of the university that makes it so. Plenty of professors are political activists and would surely claim the protections of academic freedom if the university sought to sanction them on the basis of their extracurriculars.

The problem is just that academic freedom doesn't protect against crimes of moral turpitude. It's not that Yoo's ideas were expressed outside of the academy; it's that what he was doing wasn't really anything to do with promoting ideas or discourse.


Posted by: Cala | Link to this comment | 02-20-09 2:31 PM
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And a law school, which exists to train lawyers and is in the context of the legal profession, has an interest in ensuring that its faculty members aren't committing crimes or ignoring the law in order to facilitate torture when they take on roles outside of the academy.

There's no question at all that if he were convicted of a crime, or disbarred for breaching ethical rules, the University could dismiss him with clear conscience. Even academics (which I am not) will gladly cede that point. But he hasn't been, and that's not the circumstance we're discussing.


Posted by: Brock Landers | Link to this comment | 02-20-09 2:35 PM
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Yeah, 152 seems right, but it needs a bit of distinguishing. For employees of a public university, outside-the-office political action is protected under the first amendment. And it seems to me that there's been a general agreement at private universities that "academic freedom" should extend to non-academic activities that are closely connected to free speech or the advocy of contaversial views, but that's something of an extension of the origninal concept of academic freedom -- giving, e.g., chemistry professors the right to make speeches at an ANSWER rally attacking the Iraq War is a good thing, but isn't necessarily at the core of the concept of academic freedom.

But putting that aside, the distinction between advocation of positions and taking unacceptable actions is really critical. There are plenty of situations -- and lawyering is surely one of them -- where taking action subjects you to radically different consequences than simply advocating ideas. Free speech is completely the wrong framework to use in thinking about this issue.


Posted by: Robert Halford | Link to this comment | 02-20-09 2:44 PM
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With 154.2 I agree.


Posted by: Cala | Link to this comment | 02-20-09 2:47 PM
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132: I'd disagree with this -- if you're accurately reporting what you believe to be the law, I'm pretty sure you're ethically in the clear. (And if that described Yoo, I'd fire him, but as an incompetent rather than a wrongdoer, under the assumption that Berkeley can do that somehow. But I find that unbelievable as it applies to Yoo.)

What the tax analogy does for me, is that I was getting stuck on two different ethical obligations, neither of which squarely describes Yoo's situation. You're ethically obliged not to misrepresent the law to a court. But that doesn't apply to Yoo -- the memos weren't directed to a court. And you're ethically obliged to zealously and competently represent your client, which normally entails accurately informing them as to the state of the law. But Yoo's client was in the very unusual position of, explicitly or implicitly, saying "Lie to me,"* so there's an argument that Yoo's misrepresentation of the law was zealous representation of his client. Now, it seemed obvious that what Yoo did is still unethical, but I couldn't think of another fact pattern where a client would want their lawyer to misrepresent the law to them.

That's where the tax opinion case comes in; it's one of the few contexts where it actually does you some practical good to be able to say "Even though what I did was illegal, I did it in innocent reliance on legal advice," pretty much exactly the Yoo situation. And in that context, I understand that it's well settled that it is unethical for a lawyer to misrepresent the law in order to give their client cover.

*Everyone's heard the joke about Snow White having oral sex with Pinocchio, right?


Posted by: LizardBreath | Link to this comment | 02-20-09 2:50 PM
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153 -- That goes to a different point -- is the law school capable of reviewing this issue and reaching its own conclusions, or does it have to wait for the criminal system to work?

The idea that the faculty of one of the country's best law schools would be somehow be unable to take on the role of examining Yoo's conduct, but could only do so after a full criminal investigation by the government, seems bizarre to me. The relevant facts aren't really in dispute.

I mean, employers reach conclusions about their employees conduct all the time -- did this person steal from the till? -- without waiting for a separate conclusion from the authorities. But, to date, the Boalt faculty has refused to take any action at all, even a purely hortatory step of formally condemning Yoo's actions.

Oh, I'm sorry, "Berkeley Law."


Posted by: Robert Halford | Link to this comment | 02-20-09 2:51 PM
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153 -- That goes to a different point -- is the law school capable of reviewing this issue and reaching its own conclusions, or does it have to wait for the criminal system to work?

The idea that the faculty of one of the country's best law schools would be somehow be unable to take on the role of examining Yoo's conduct, but could only do so after a full criminal investigation by the government, seems bizarre to me. The relevant facts aren't really in dispute.

I mean, employers reach conclusions about their employees conduct all the time -- did this person steal from the till? -- without waiting for a separate conclusion from the authorities. But, to date, the Boalt faculty has refused to take any action at all, even a purely hortatory step of formally condemning Yoo's actions.

Oh, I'm sorry, "Berkeley Law."


Posted by: Robert Halford | Link to this comment | 02-20-09 2:51 PM
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if you're accurately reporting what you believe to be the law, I'm pretty sure you're ethically in the clear

Ethically, you still need a good faith basis for that belief, no?


Posted by: Di Kotimy | Link to this comment | 02-20-09 2:55 PM
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*Everyone's heard the joke about Snow White having oral sex with Pinocchio, right?

The way you phrased it, for a moment I pictured Snow White going down on Pinocchio, and thought "now why would she care if his nose got longer?".


Posted by: M/tch M/lls | Link to this comment | 02-20-09 2:55 PM
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Sexist.


Posted by: Di Kotimy | Link to this comment | 02-20-09 2:57 PM
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That goes to a different point -- is the law school capable of reviewing this issue and reaching its own conclusions, or does it have to wait for the criminal system to work?

Of course they're capable of doing that, but do they want to put themselves in that position? (Is it a position they've ever assumed before? Sincere question.) If they do it now, will there be calls for them to do it again next time, when the crime is something horrendous but less horrendous than sanctioning torture? (Allegations that a child professor molestioned a child. Should the university let the courts decide guilt, or set up their own tribunal?)


Posted by: Brock Landers | Link to this comment | 02-20-09 2:58 PM
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162 -- It's very clear that the Boalt faculty doesn't wan't to conduct an investigation. Indeed, they want this issue to go away completely. But I think that's a cowardly position to take, given the seriousness of the issues at stake. That is why what DeLong is doing is so important.

(OT: Can I just say again how lame it is that the school changed its name to "Berkeley Law"? I mean, talk about selling out 75 years of California tradition for a mess of pottage.)


Posted by: Robert Halford | Link to this comment | 02-20-09 3:02 PM
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159: True, but I figure any basis you've got that does lead to actual belief is a 'good faith' basis -- when you say that there's no good faith basis for a position, you're saying "I don't credit your claim to actually hold the position you say you do, because it's not reasonable for anyone to believe it on the basis you've given."

And 129: bats her big brown eyes

I'm crushed, Emerson -- three times I've met you and you don't know what color my eyes are? Snf. Snf.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:05 PM
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163: well, fine, but my point is that there are also non-cowardly reasons to take that position.


Posted by: Brock Landers | Link to this comment | 02-20-09 3:05 PM
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And I shouldn't post while drinking.

There are people here who post sober?


Posted by: John Emerson | Link to this comment | 02-20-09 3:06 PM
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MMMMMMMM, POTTAGE!!1!


Posted by: OPINIONATED ESAU | Link to this comment | 02-20-09 3:06 PM
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Your eyes are brown, because you're Irish. Have people been telling you different?


Posted by: John Emerson | Link to this comment | 02-20-09 3:07 PM
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I'm crushed, Emerson -- three times I've met you and you don't know what color my eyes are? Snf. Snf.

*eyes her big brown bat *


Posted by: M/tch M/lls | Link to this comment | 02-20-09 3:08 PM
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The Irish have, like, 50 words for brown eyes.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 3:09 PM
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My book on domestic terrorism attributes the Wobegon terrorists' turn to the dark side to their living in an isolated economic backwater. Hmph.


Posted by: John Emerson | Link to this comment | 02-20-09 3:09 PM
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big brown bat

Flying fox, actually. National mammal of Samoa.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:09 PM
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I, for one, am shocked and dismayed to learn that LB worked for Big Tobacco. (I know, RTFA.)

Maybe I don't read DeLong enough: is it normal for him to call for more than one person to be fired over the course of a week? (I approve.)


Posted by: essear | Link to this comment | 02-20-09 3:10 PM
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I am fully prepare to go a roving, given the right incentive . . .


Posted by: Shane McGowan | Link to this comment | 02-20-09 3:11 PM
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Of course they're capable of doing that, but do they want to put themselves in that position? (Is it a position they've ever assumed before? Sincere question.) If they do it now, will there be calls for them to do it again next time, when the crime is something horrendous but less horrendous than sanctioning torture? (Allegations that a child professor molestioned a child. Should the university let the courts decide guilt, or set up their own tribunal?)

But Yoo's sin is against the law as an entity, in a way that child molestation isn't. (Which is why academic freedom comes into it.) It's like, imagine if a biology dep't employed a closet Lysenkoist who was also hired by Monsanto to prove that made-up bullshit will work, which then lead to mass starvation. Clearly, the biology dep't would have a different relation to that crime than if he just went out and shot some people.


Posted by: Keir | Link to this comment | 02-20-09 3:13 PM
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173: Yep. The really shamefully embarrassing thing is that on the specific case I worked on, I thought they were totally right and the case was bullshit. But I have moved on to a client I feel much more warmly toward.

And I don't think DeLong counts calling for the firing of media people as enough of an event to keep track of -- it's a pretty steady drumbeat over there. Tenured academics is different.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:14 PM
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DeLong wants whole tranches of the Times and Post staffs fired. This is a recurring theme.

There are those who claim that very, very few Irish have brown eyes, Wikipedia for example. But I laugh at their ignorance.


Posted by: John Emerson | Link to this comment | 02-20-09 3:14 PM
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173: Yes, it's quite normal for him.


Posted by: Tiny Hermaphrodite | Link to this comment | 02-20-09 3:15 PM
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Brock: a child professor molestioned a child

Emerson: There are people here who post sober?

Yes, but best I can tell, Brock isn't one of them.


Posted by: apostropher | Link to this comment | 02-20-09 3:16 PM
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The really shamefully embarrassing thing is that on the specific case I worked on, I thought they were totally right and the case was bullshit.

Nothing shameful in that -- the whole point of an adversary system is to have convinced advocates on both sides. At least that's what lets me sleep at night.


Posted by: Di Kotimy | Link to this comment | 02-20-09 3:16 PM
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172: I was thinking more of something akin to the calabat


Posted by: M/tch M/lls | Link to this comment | 02-20-09 3:16 PM
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177: Someone should tell him that the cossacks work for the czar...


Posted by: Tiny Hermaphrodite | Link to this comment | 02-20-09 3:17 PM
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180: Or so the consiglieri would have you believe.


Posted by: M/tch M/lls | Link to this comment | 02-20-09 3:18 PM
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It's like, imagine if a biology dep't employed a closet Lysenkoist who was also hired by Monsanto to prove that made-up bullshit will work, which then lead to mass starvation.

Yes, who could imagine a highly-respected university employing a scientist who shills for corporate interests? Surely such a situation wouldn't last long!


Posted by: essear | Link to this comment | 02-20-09 3:19 PM
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180: I know, but it feels a little like saying "Actually, if you read the relevant treaties carefully, Hitler was totally entitled to the Sudetenland." Could conceivably be true, but you hate saying it in public.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:20 PM
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Christ, can't even spell my own name. Or conjugate verbs. I need a drink.


Posted by: Shane MacGowan | Link to this comment | 02-20-09 3:20 PM
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And some dental care.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:21 PM
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185: I know. I actually have a real example involving an issue that I won which was legally completely correct but otherwise repugnant. But turns out, I am actually too ashamed of myself to admit what it was.


Posted by: Di Kotimy | Link to this comment | 02-20-09 3:28 PM
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Holy shit, Di is John Yoo.


Posted by: JRoth | Link to this comment | 02-20-09 3:32 PM
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And Cheney is UNG!!!


Posted by: JRoth | Link to this comment | 02-20-09 3:32 PM
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Blue eyes are a mild form of albinism which reduces the melanin in the iris.


Posted by: John Emerson | Link to this comment | 02-20-09 3:34 PM
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My eyes change color depending on how just a particular client's case is.


Posted by: CharleyCarp | Link to this comment | 02-20-09 3:37 PM
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DeLong admits in his letter that he's neither a legal scholar nor a moral philosopher, and yet he feels entitled to tell us that torture is "illegal" and "wrong". What the hell? Tell us whether it's efficient, Brad. That's your expertise.


Posted by: Brock Landers | Link to this comment | 02-20-09 3:39 PM
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192: Hey, me too. When they started getting stuck for weeks on bright yellow with vertical slits for pupils, I knew I had to get out. (Also, drycleaning really doesn't get brimstone out of a suit.)


Posted by: LizardBreath | Link to this comment | 02-20-09 3:39 PM
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Blue eyes are a mild form of albinism which reduces the melanin in the iris.

Watch what you say about my kid, bub.

193 is great.


Posted by: JRoth | Link to this comment | 02-20-09 3:41 PM
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193: I'm almost certain that torture is Pareto optimal, given that almost anything you can think of is.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:42 PM
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The Irish have, like, 50 words for brown eyes.
the brown eye's epithet and pretty flattering one in our poetry is 'brown eyes as sheep's brown eyes', (khonin bor nud) like it's peaceful and meek
because it's kinda very light colour coz the majority i guess have black eyes, but green eyes are disliked and called witchy


Posted by: read | Link to this comment | 02-20-09 3:46 PM
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"You have beautiful eyes like a sheep" is not a compliment in this country. Better than cow eyes, though.


Posted by: John Emerson | Link to this comment | 02-20-09 3:51 PM
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Yes, who could imagine a highly-respected university employing a scientist who shills for corporate interests? Surely such a situation wouldn't last long!

I have been very carefully trying to avoid Emersonian comments about economists. Don't tempt.


Posted by: Keir | Link to this comment | 02-20-09 3:56 PM
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We had a long discussion of "Ox-eyed" here once, didn't we? It's from ancient Greek poetry, but the metaphor made it into English. But it's not current now at all.

"Doe-eyed" is something that a modern day American might conceivably say to flatter a brown-eyed person, although I think that's more about the eyelashes than the color. But not sheep.


Posted by: LizardBreath | Link to this comment | 02-20-09 3:57 PM
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no epithets for the cow like eye's, though the calf eyes could be a compliment or doe's


Posted by: read | Link to this comment | 02-20-09 3:58 PM
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Yet one can look sheepish.


Posted by: heebie-geebie | Link to this comment | 02-20-09 4:01 PM
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198 IS WRONG, WRONG, WRONG. HOPE YOU HAVE A FLY SWATTER, EMERSON.


Posted by: OPINIONATED HERA | Link to this comment | 02-20-09 4:04 PM
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STOP MOLESTIONING ME WITH YOUR EYES!


Posted by: OPINIONATED SHEEP | Link to this comment | 02-20-09 4:04 PM
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MOLESTIONING is my new favorite word.


Posted by: A White Bear | Link to this comment | 02-20-09 4:07 PM
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I think that maybe you should be going after Homer, or maybe Jupiter, Hera.


Posted by: John Emerson | Link to this comment | 02-20-09 4:07 PM
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||

We're doing a meet-the-daughter's-new-boyfriend thing. Any suggestions for trial by ordeal?

|>


Posted by: CharleyCarp | Link to this comment | 02-20-09 4:12 PM
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207: Walking on burning coals or gripping a hot piece of iron are traditional. Also duelling to the death.


Posted by: Tiny Hermaphrodite | Link to this comment | 02-20-09 4:21 PM
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I'M A GODDESS. I HAVE TIME FOR EVERYONE.


Posted by: OPINIONATED HERA | Link to this comment | 02-20-09 4:21 PM
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We're thinking this might be an upgrade, so maybe something a little less strenuous. To start out, anyway.


Posted by: CharleyCarp | Link to this comment | 02-20-09 4:22 PM
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Yet one can look sheepish.

khonin bor nud


Posted by: read | Link to this comment | 02-20-09 4:25 PM
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"So when did you start molestioning my daughter?"


Posted by: JRoth | Link to this comment | 02-20-09 4:27 PM
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We're thinking this might be an upgrade, so maybe something a little less strenuous.

Making this clear has potential for being strenuous. "We're hoping you're not nearly as much a waste of space as your predecessor. Tell me, do you [something that a kid his age is overwhelmingly likely to do]? Ah. Pity."


Posted by: LizardBreath | Link to this comment | 02-20-09 4:31 PM
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Lots of Mongolia pictures.


Posted by: John Emerson | Link to this comment | 02-20-09 4:39 PM
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207:
Ask him if he's accepted Jesus as his personal Lord and Saviour. That always worked on my little sister's friends.


Posted by: minneapolitan | Link to this comment | 02-20-09 4:59 PM
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153: And if John Yoo is two steps ahead of you, and cannot be disbarred because he has already dropped his membership in the Pennsylvania Bar Association? (People have maintained to me that this is in fact the case.)


Posted by: Brad DeLong | Link to this comment | 02-20-09 5:00 PM
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so if the fact of torture means that known and proven (yet now unconvictable) terrorists x, y, z cannot be brought to justice, is it possible to bring to loud and long prosecution those who enabled the torture as accessories? to get this fact into the world (and even peoria), if not -- sadly - to remove the enablers from out of the bit of the world that is not a righteous dungeon?


Posted by: tierce de lollardie | Link to this comment | 02-20-09 5:22 PM
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We're doing a meet-the-daughter's-new-boyfriend thing. Any suggestions for trial by ordeal?

Ask him what he thinks should happen to John Yoo.

[I'm actually very glad this thread happened on a day when I had no time to read or comment, because I find the very fact that this is a question for debate to be so incomprehensible as to override all of the benign affection I have managed to acquire toward the academic world as a result of folks here, and bring surging back all of my most bitter prejudices.]


Posted by: Witt | Link to this comment | 02-20-09 5:27 PM
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207: I was always perfectly friendly to the louts. I also managed to be cleaning a Colt .45 on the coffee table in front of me while doing the chatting. It's been a few decades now, I would have heard about serious mis-behaviour by now.

Being reasonable sometimes works with adults. Being terrifying is the only thing that works with young men.


Posted by: Biohazard | Link to this comment | 02-20-09 6:10 PM
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198: The ancient Aryans were very emphatically appreciative of cows:

The Zoroastrian creed:

1.
I curse the Daevas.
I declare myself a Mazda-worshipper, a supporter of Zarathushtra, hostile to the Daevas, fond of Ahura's teaching, a praiser of the Amesha Spentas, a worshipper of the Amesha Spentas. I ascribe all good to Ahura Mazda, 'and all the best,' Asha-endowed, splendid, xwarena-endowed, whose is the cow, whose is Asha, whose is the light, 'may whose blissful areas be filled with light'.
2.
I choose the good Spenta Armaiti for myself; let her be mine. I renounce the theft and robbery of the cow, and the damaging and plundering of the Mazdayasnian settlements.
3.
I want freedom of movement and freedom of dwelling for those with homesteads, to those who dwell upon this earth with their cattle. With reverence for Asha, and (offerings) offered up, I vow this: I shall nevermore damage or plunder the Mazdayasnian settlements, even if I have to risk life and limb.
4.
I reject the authority of the Daevas, the wicked, no-good, lawless, evil-knowing, the most druj-like of beings, the foulest of beings, the most damaging of beings. I reject the Daevas and their comrades, I reject the demons (yatu) and their comrades; I reject any who harm beings. I reject them with my thoughts, words, and deeds. I reject them publicly.
Even as I reject the head (authorities), so too do I reject the hostile followers of the druj.
5.
As Ahura Mazda taught Zarathushtra at all discussions, at all meetings, at which Mazda and Zarathushtra conversed;
6.
as Ahura Mazda taught Zarathushtra at all discussions, at all meetings, at which Mazda and Zarathushtra conversed -- even as Zarathushtra rejected the authority of the Daevas, so I also reject, as Mazda-worshipper and supporter of Zarathushtra, the authority of the Daevas, even as he, the Asha-endowed Zarathushtra, has rejected them.
7.
As the belief of the waters, the belief of the plants, the belief of the well-made (Original) Cow; as the belief of Ahura Mazda who created the cow and the Asha-endowed Man; as the belief of Zarathushtra, the belief of Kavi Vishtaspa, the belief of both Frashaostra and Jamaspa; as the belief of each of the Saoshyants (saviors) -- fulfilling destiny and Asha-endowed --

so I am a Mazda-worshipper of this belief and teaching.
8.
I profess myself a Mazda-worshipper, a Zoroastrian, having vowed it and professed it. I pledge myself to the well-thought thought, I pledge myself to the well-spoken word, I pledge myself to the well-done action.
9.
I pledge myself to the Mazdayasnian religion, which causes the attack to be put off and weapons put down; [which upholds khvaetvadatha], Asha-endowed; which of all religions that exist or shall be, is the greatest, the best, and the most beautiful: Ahuric, Zoroastrian. I ascribe all good to Ahura Mazda. This is the creed of the Mazdayasnian religion.


Posted by: David Weman | Link to this comment | 02-20-09 6:27 PM
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1. Who the hell were the Daevas that they should be so reviled by the Zoroastrians?

2. One of the only things I recall from reading Longfellow's Evangeline in eighth grade was that she had "the breath of kine" (cattle), which was supposed to be a good thing. I was and remain unconvinced.


Posted by: Jackmormon | Link to this comment | 02-20-09 6:34 PM
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Sweet clovery breath wouldn't be too bad.


Posted by: TJ | Link to this comment | 02-20-09 6:35 PM
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You're pretty druj-like, JM, if you ask me. But then, your sacred seagulls are almost certainly Daevas of the very worst kind.


Posted by: John Emerson | Link to this comment | 02-20-09 6:36 PM
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I like how the creed seem really overcome with indignation over daevas, demons, cattle thieves, and the hostile followers of Druj.


Posted by: David Weman | Link to this comment | 02-20-09 6:37 PM
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Oh, and 3. I'm really nervous about ousting Yoo from the university as a first step. I'd really prefer to see the bar or the fracking courts take up the matter, if at all possible. I'm reading DeLong's weathervane argument as basically accusing Yoo of being a hack, and academic freedom has often---even traditionally!---been extended to hacks of all stripes. That's not to say that I don't want Yoo to be tarred and feathered and run out of town on a rail, but I'd really prefer to leave that to the lynch mobs or the civil authorities.

Of course, preferences and milquetoast procedularism get you evil hacks in control of the levels of power; they didn't do Bartleby much good in the end either.


Posted by: | Link to this comment | 02-20-09 6:38 PM
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Sorry, 225 was me.

Are the Druj the Druze? Because I wouldn't have thought that the timeframe was right... to the Wikipedia I guess.


Posted by: Jackmormon | Link to this comment | 02-20-09 6:40 PM
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Daevas are evil semi-deities.

druj (Av.): embodiment of evil and pollution, demon of the lie, falsehood.


Posted by: David Weman | Link to this comment | 02-20-09 6:46 PM
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According to these people, "druj" means basically liars, contract-breakers, the unfaithful. Daevas are some sort of lower-rank evil demons. Or, according to some other people on the internet, the daevas are "a clan of predatory hedonists and sensualists."


Posted by: Jackmormon | Link to this comment | 02-20-09 6:47 PM
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By now I barely give a shit about tenure. Academics spent about ten years in obedience-training bootcamp and another ten years sucking up to tenured faculty, and they end up being some of the timidest rule-followers on God's green earth.

Present company excepted, of course.


Posted by: John Emerson | Link to this comment | 02-20-09 6:55 PM
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(OP) Somebody should write to the Ethicist about this. Randy Cohen always knows what to do, and I'm pretty sure his decisions are binding in the afterlife so Boalt would be sure to pay attention.


Posted by: Cecily | Link to this comment | 02-20-09 6:55 PM
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It's hard to see how removing tenure would improve the situation, though. I have to think that university administrators are an even more despicable class.


Posted by: Walt Someguy | Link to this comment | 02-20-09 6:57 PM
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Further to 226. The point of the creed isn't "our enemies suck" or anything like that, it's the first ever altruistic universal morality*. Don't go around attacking people and take their cows, cause that's just not cool.

Zoroastrians could even be the first people who would've seen our point about Yoo.

*Well, maybe, or something like that. Plausibly.


Posted by: David Weman | Link to this comment | 02-20-09 6:58 PM
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My other idea is that if there were a bunch of episodes about this on Law & Order, thinly veiled as Fiction, with heavy-handed implied morals, public opinion would probably follow. Who can resist Vincent d'Onofrio? No one. No one can resist him.


Posted by: Cecily | Link to this comment | 02-20-09 7:02 PM
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Weman, what is this thing you about cows? Read, too. I have trouble caring about them. (I suppose that's because of my blighted, withered heart.)


Posted by: John Emerson | Link to this comment | 02-20-09 7:02 PM
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The daevas were really the more warlike and nasty of the old aryan polytheist deities, whose cult Zarathushtra denounced. The more benign deities he made into Ahura Mazda's archangels, kind of.


Posted by: David Weman | Link to this comment | 02-20-09 7:07 PM
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I have trouble caring about cattle too, but that's because I can buy milk and cheese and meat at the grocery store.


Posted by: Jackmormon | Link to this comment | 02-20-09 7:08 PM
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Did Nietszche just fake his Zarathustra entirely?


Posted by: John Emerson | Link to this comment | 02-20-09 7:10 PM
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Further to 233, why the hell haven't the Law and Order writers gotten into this material? They've surely run out of NYC murders by now. (Back when I watched Law and Order all the time, I was SURE I was going to find a dead body every morning jog in the park. It just seemed like the done thing in that neighborhood.) Maybe they can find a dead body of a guy who'd been tortured in a CIA black site.


Posted by: Jackmormon | Link to this comment | 02-20-09 7:11 PM
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Cows and moral universalism go hand in hand, or hoof in hoof, as it were.


Posted by: David Weman | Link to this comment | 02-20-09 7:12 PM
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The Greatest Blog Ever excerpts the LRB on the end of the world insurance, etc.


Posted by: John Emerson | Link to this comment | 02-20-09 7:13 PM
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||

Anyone else giving Dollhouse a try and finding it distastefully creepy?

|>


Posted by: essear | Link to this comment | 02-20-09 7:18 PM
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241 I watched the first one on Hulu and liked it okay. So far this one is confusing me though.


Posted by: Cecily | Link to this comment | 02-20-09 7:22 PM
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although it is kind of hard for me to think of Eliza Dushku as anything except the reluctant cheerleader from Bring It On.


Posted by: Cecily | Link to this comment | 02-20-09 7:24 PM
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There's a long cow section in the Koran, and Hindus more or less worship them. Cow-worship is prior to all of the scriptural religions, I'm sure.

For a long time cows (oxen) were more important as draft animals than they were as milk or meat producers, and that's the way Chinese still think of them to a degree. Oxcarts were used in the American pioneer west before roads were build. They're sort of like enormous horses put in a lower gear for more power and less speed.


Posted by: John Emerson | Link to this comment | 02-20-09 7:25 PM
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242: I'm concerned every week is going to be a new case of Eliza Dushku dealing with some sociopathic man who preys on women or girls.

And I guess I abused the pause/play symbol. Meant something more like "this is off-topic".


Posted by: essear | Link to this comment | 02-20-09 7:26 PM
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237: No relation, we're not even talking about a funhouse mirror version.

The actual Zarathushtra's moral dualism is the exact opposite of Nietsche, even more so than Christianity. The reason he faked it was that Zarathushtra was Aryan, and the stuff he disliked he wanted to be semitic.


Posted by: David Weman | Link to this comment | 02-20-09 7:26 PM
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a new case of Eliza Dushku dealing with some sociopathic man

Yeah, probably.


Posted by: Cecily | Link to this comment | 02-20-09 7:29 PM
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Wait, Law & Order should go after Aryan cow-thieves? It would make for some amusing Ice-T banter I suppose, but running down all the escaped cattle would necessitate totally fucking up traffic on the Upper West Side.


Posted by: minneapolitan | Link to this comment | 02-20-09 7:29 PM
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maybe they could go on a staff retreat, or team up with Interpol.


Posted by: Cecily | Link to this comment | 02-20-09 7:35 PM
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demons (yatu)
there is a curse word yatu in my language, never knew its meaning


Posted by: read | Link to this comment | 02-20-09 7:36 PM
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A lot of vocabulary passed back and forth between Persian, Turkish, Tibetan, and Mongol. IIRC Zarathustra lived in far NE Persian, toward Uzbekistan.


Posted by: John Emerson | Link to this comment | 02-20-09 7:45 PM
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Law and Order should go after *the legal enablers* of Aryan cattle-rustlers. Try and keep up, minneapolitan.


Posted by: Jackmormon | Link to this comment | 02-20-09 7:46 PM
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I'm so glad you turned cow-thieves into cattle-rustlers, JM.


Posted by: Cecily | Link to this comment | 02-20-09 7:48 PM
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251: Near the Kalmuks?


Posted by: | Link to this comment | 02-20-09 7:48 PM
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Sorry, 254 is MH.


Posted by: MH | Link to this comment | 02-20-09 7:50 PM
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I think it was one of my Irish friends who described his ancestors' lives as stealing cattle from each other.


Posted by: Jackmormon | Link to this comment | 02-20-09 7:50 PM
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Ancestors. That's pretty much what I still do.


Posted by: MH | Link to this comment | 02-20-09 7:51 PM
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I'm concerned every week is going to be a new case of Eliza Dushku dealing with some sociopathic man who preys on women or girls.

I've heard, and this isn't scrupulously sourced mind you, that Joss struck some deal with Fox that the first seven episodes could be basically shown in any order. I would guess this is going to make them very episodic and you aren't going to see the normal Joss story arcs until later.


Posted by: CJB | Link to this comment | 02-20-09 7:52 PM
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238: They did do a show which involved the death of a man who had been subject to harsh interrogation techniques and the psychiatrist/ (should have been a psychologist) who had advised the Government. The other army guy left the country, and she wasn't convicted of anything related to the murder, but the medical examiner did go before the professional board to get her license revoked.


Posted by: Bostoniangirl | Link to this comment | 02-20-09 8:01 PM
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Further to 259, I think that the claim was that he'd been so traumatized that when he saw the contractor who worked for some British version of Blackwater, he had a heart attack. Making that stick as murder was too hard.


Posted by: Bostoniangirl | Link to this comment | 02-20-09 8:06 PM
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241: Yeah. I am hoping that we get three episodes of this and then Faith stakes the johns and Helo puts them out an airlock which is in the back of the Dollhouse.


Posted by: Cala | Link to this comment | 02-20-09 8:07 PM
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he's off the hook?

Now I understand the new RNC slogan.


Posted by: eb | Link to this comment | 02-20-09 8:10 PM
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258: I dunno. Today's was all flashback and innuendo. I assume the meanings will become clear later, and it's all related to some grander story arc, but I hate it when shows do this. I like my TV dramas in bite sized pieces where the bad guys get punished at the end and I don't have to watch it next week if I'm busy.

Usually Law & Order is very good at this, but every once in a while they end the show BEFORE THE TRIAL GETS TO A VERDICT. I really really hate it when they do this.


Posted by: Cecily | Link to this comment | 02-20-09 8:14 PM
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242: I'm concerned every week is going to be a new case of Eliza Dushku dealing with some sociopathic man who preys on women or girls.

That is pretty much Echo's job description.

Just as disturbing to me as the violent guys are the ones that "rent" her for a weekend. She has shown giddy-in-love twice, coming back for her treatment.

As she starts to regain her memory, she will become a little more conscious of being a fuck fantasy for hire, but will not be capable of running away or resisting without getting killed. It is kinda a rape show.

Fuck yes, it is creepy and disturbing, from the title on. Whether Whedon can make it non-exploitative and a metaphor for all the ways women are "imprinted" to be objects of male fantasy, well, I kinda trust Whedon, if Fox lets him run.


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:34 PM
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What, we gots three male characters, all with different attitudes, which are related to their jobs:protective (handler), manipulative(psytech), and suspicious & hostile(security).

And then there is the madam.

Whedon can make metaphor concrete. And even with Buffy, it took awhile for viewers to get past the episodic adventure stories and say "Whoa, there's shit going down here."

Patience.


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:41 PM
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I'll jut repeat, because it is fucking pretty amazing.

Dollhouse is a series about rape.


Posted by: bob mcmanus | Link to this comment | 02-20-09 8:46 PM
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I also managed to be cleaning a Colt .45 on the coffee table in front of me while doing the chatting.

Always a good way to let them know that if they thing you'll be a problem, it's easiest to just shoot you from cover.


Posted by: soup biscuit | Link to this comment | 02-20-09 8:47 PM
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true the episode tonight was crazy trigger-warning-worth. I'm not sure how to feel about it overall.


Posted by: Ida McKinley | Link to this comment | 02-20-09 8:49 PM
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(268 to 264, 266)


Posted by: Ida McKinley | Link to this comment | 02-20-09 8:50 PM
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I haven't seen Dollhouse yet, but Joss has not shown himself to be fantastically brilliant at portraying rape, as evidenced by the awkward and ham-handed attempted rape sequence in Buffy. Nor is the "Heart of Gold" episode of Firefly a stirring endorsement of his take on prostitution. And I only saw two episodes of Tru Calling, but they gave me the very gravest impression of Eliza Dushku's acting ability.


Posted by: redfoxtailshrub | Link to this comment | 02-20-09 8:53 PM
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yeah but in Bring It On she conveyed (a) a gymnast who hated cheerleaders who then became a (b) cheerleader who valued the hard work of cheerleaders. If that isn't acting, I ask you, what is?


Posted by: Cecily | Link to this comment | 02-20-09 8:58 PM
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261 then Faith stakes the johns and Helo puts them out an airlock which is in the back of the Dollhouse.

I'm sure you can find your wish fulfilled in fanfic somewhere on the web.


Posted by: essear | Link to this comment | 02-20-09 8:59 PM
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270: RFTS on "Hardball":

Chris Matthews: "Here's MSNBC's rape critic, RFTS. Red, how do the 'Dollhouse' rapes stack up with the great rape scenes of the past?"

RFTS: "Not at all well, Chris, I'm afraid...."

Matthews [interrupts]: "You know which rape scene I really liked? The one I could watch over and over again...."


Posted by: John Emerson | Link to this comment | 02-20-09 9:02 PM
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270: I read that Dushku is slated to be the female lead in the remake of Tremors that's coming in 2011 (i.e. the young geologist who falls for the Kevin Bacon character).


Posted by: MH | Link to this comment | 02-20-09 9:02 PM
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273 is all too realistic.


Posted by: JRoth | Link to this comment | 02-20-09 9:06 PM
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I just drank a whole bottle of wine all by my self. It probably is bad that I am more proud than anything else about this fact.


Posted by: Cecily | Link to this comment | 02-20-09 9:06 PM
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in the remake of Tremors

My god why?


Posted by: essear | Link to this comment | 02-20-09 9:09 PM
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Maybe they're anticipating another writer's strike.


Posted by: eb | Link to this comment | 02-20-09 9:10 PM
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Rape scenes, meh.

Anybody remember the scene in the parking garage, where Dushku and her handler are waiting for the elevator? I can't quote, but something about she had always focused on looks too much, pecs and abs, and sure Jason is a little heavy, but personality counts for so much , and can the handler wait, becaise Dushku really wants to go back to Jason.

This was cringy horror of the first rank.

Mind-control fantasies are all over the webs, and are some kind of major disgusting evil rape shit.

Which do you think is worse, to rape with a knife or gun, or to take someone's mind along with the body?


Posted by: bob mcmanus | Link to this comment | 02-20-09 9:12 PM
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277: They'll never do better than the first one. Tremors II and III aren't bad either. The fourth one drags a bit.


Posted by: MH | Link to this comment | 02-20-09 9:13 PM
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279: wait I don't understand why that particular scene was bad. Did I miss some plot point about Jason being a bad person? Or are you just objecting to how the handler was all nod-and-smile about her desires?


Posted by: Cecily | Link to this comment | 02-20-09 9:15 PM
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I've heard, and this isn't scrupulously sourced mind you, that Joss struck some deal with Fox that the first seven episodes could be basically shown in any order. I would guess this is going to make them very episodic and you aren't going to see the normal Joss story arcs until later.

The story arc starts after it gets cancelled! I look forward to the comic book.


Posted by: CRyptuic ned | Link to this comment | 02-20-09 9:15 PM
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("just" was probably inappropriate; I agree that the lack of agency is very disturbing.)


Posted by: Cecily | Link to this comment | 02-20-09 9:16 PM
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It's worse than lack of agency, though, right? I think that's what bob is getting at. It's not just that she has no control over what she does, it's no control over what she thinks. Here she is thinking she's head-over-heels for this guy and really it's that her brain has been rearranged so that she has no choice but to be so. I agree that there's something extremely disturbing about it, though I have a hard time articulating it.


Posted by: essear | Link to this comment | 02-20-09 9:20 PM
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And Whedon and Dushku may not be able to handle it, but I find this subject fascinating.

How close is seduction to rape? Are differences in intellect, experience, power positions irrelevant? Sure a woman might say she is willing, but in the patriarchy, is she really free?

I don't find "consent" that simple a concept.


Posted by: bob mcmanus | Link to this comment | 02-20-09 9:22 PM
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oh. I thought the falling in love parts were between assignments when she was more or less her own self. But I admit to not having paid a huge amount of attention to it all so I could well be wrong.


Posted by: Cecily | Link to this comment | 02-20-09 9:22 PM
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and, I agree with all the problematized items in 285.2, but just hadn't thought that the wanting-to-date-a-fat-guy scene was especially bad. Compared to like the crazy stalky killer arrow guy I mean.


Posted by: Cecily | Link to this comment | 02-20-09 9:26 PM
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281:She has been imprinted to "love" Jason for just one weekend, and then have those memories and feelings erased to be available for the next customer.

Are they "her desires?" For the weekend.

All the support cast seems to justify it because her initial personality and memories have been erased. They repeatedly say "there is nobody home" inside that body. And you know what? They're right.

Are they?


Posted by: bob mcmanus | Link to this comment | 02-20-09 9:28 PM
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oh okay. I totally missed a part of it then (apparently when they were programming her). Then yes, you are right. About everything.


Posted by: Cecily | Link to this comment | 02-20-09 9:29 PM
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I totally missed a part of it then (apparently when they were programming her)

I don't think we were shown that. But my understanding (and it hasn't been made explicit in the two episodes so far, I think) is that she only leaves the Dollhouse when programmed, for one job or another. In between she lives that weird semi-zombie-like existence just wandering between workouts and sleep.


Posted by: essear | Link to this comment | 02-20-09 9:31 PM
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I'm mildly concerned about how I don't really think any of us ever think thoughts that aren't determined by the physical state of our brain, and how much of my own existence is a semi-zombie-like wandering between various repetitive daily tasks and sleep, but probably that means I should think less. Or drink more.


Posted by: essear | Link to this comment | 02-20-09 9:34 PM
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291: but, I don't get it. The state of our brain is the wildly high-dimensional product of an enormously, and thus far bafflingly complex informational apparatus that -- even if it is accurately simulatable -- will never be predictable. So what's the difference?


Posted by: Sifu Tweety | Link to this comment | 02-20-09 9:52 PM
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Oh, no difference, just wondering how to draw the line between what is troubling about the lack of free will of the character in Dollhouse that is not troubling in the rest of us, since in the middle of any given job she's contracted out on, she operates like any other person with some set of memories and free will. And I guess it's a combination of the external agency that is shaping her brain-state, together with her lack of ability to remember her own true past.


Posted by: essear | Link to this comment | 02-20-09 9:58 PM
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292:will never be predictable. So what's the difference?

Well, of course, that is the difference. Programmed Echo is predictable, within an attractive an interesting range, or guaranteed money back.

She is not just imprinted with a personality, but also imprinted with a mission from which she will not waver. Not much free will.


Posted by: bob mcmanus | Link to this comment | 02-20-09 10:09 PM
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She is not just imprinted with a personality, but also imprinted with a mission from which she will not waver

I haven't seen this weeks episode, but from last weeks I am not totally sure this is true. They said that they can't just make up a persona they have to use parts of or whole personas of actually people. It didn't make it sound like they necessarily imprinted a mission so much as designed a persona that would driven to do what they wanted which is slightly different and closer to what essear is talking about.

Maybe this weeks episode further fleshed it out though and I am wrong.


Posted by: CJB | Link to this comment | 02-20-09 10:16 PM
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O WAMTAS TADDDDDDDDdddddd

I WANT TO DATE A FAT GUY BUT LOVE A THIN GUY. AND THEN THE OPPOSITE, ONE WEEK LATER


Posted by: OPINIONATED GRANDMA | Link to this comment | 02-20-09 10:22 PM
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295:Look, Jason is not gonna pay the big bucks to have Echo dump him at the bar and go off with the other guy in the red shirt.

In episode 1, woman #2 was the first thru the kidnappers door, facing the gunfire.

That they can program their subjects to think they have good reasons to love, or to fight & die doesn't mean they have a choice whether to love or fight & die. The Dollhouse is selling the job, not the personality.

Whoa, we all think we have reasons, don't we?


Posted by: bob mcmanus | Link to this comment | 02-20-09 10:25 PM
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The non romantic type engagements seem like they would be relatively straight forward to do without some kind of mission imprint as it were. The romantic assignments do seem like they would be more problematic. They do also have some way to get them to come back for their "treatments" so they do seem to have some control over them as well. I assume this will get more fleshed out as the series continues.


Posted by: CJB | Link to this comment | 02-20-09 10:39 PM
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Usually Law & Order is very good at this, but every once in a while they end the show BEFORE THE TRIAL GETS TO A VERDICT. I really really hate it when they do this.

I really like it when they do that; it shows the intrinsically dodgy nature of the criminal justice system.

(bet you also hate when it isn't obvious whoddunnit.)

(speaking of cranks, I just drunkenly ranted at the current head (or generic high hidyin )of I/c/a/n/n about Richard fucking Stallman and IP and NZ's S92.)


Posted by: Keir | Link to this comment | 02-21-09 7:09 AM
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Dean Baker on bailout fakery


Posted by: John Emerson | Link to this comment | 02-21-09 7:19 AM
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s/b `becks-style' for `drunkenly' and s/b `wankerly boasting:' for `speaking of cranks'.


Posted by: Keir | Link to this comment | 02-21-09 7:22 AM
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299.last: I cann see how all four of those entities are related, but am curious if is there some obvious way the last three would be part of a rant directed at the first.


Posted by: JP Stormcrow | Link to this comment | 02-21-09 7:49 AM
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300: There was also the unusual Thursday takeover of Washington Mutual. Banks are usually EATED, as they say, on Fridays. (If people are looking for more to add to the conspiracy theory.) Questions were asked at the time and I guess reporters were fine with the answers.


Posted by: eb | Link to this comment | 02-21-09 8:02 AM
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All this talk about Dollhouse is just making me remember the House of Blue Lights in Burning Chrome, and I think another version of that shows up as a side scene in Neuromancer.


Posted by: Nathan Williams | Link to this comment | 02-21-09 9:59 AM
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Is this cheese kosher?

I could live without pork and shrimp, but not without cheese. And I mean rennet cheese.

Those people are crazy.


Posted by: John Emerson | Link to this comment | 02-21-09 10:16 AM
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Sponsor and Executive


Posted by: John Emerson | Link to this comment | 02-21-09 10:20 AM
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299.last: I cann see how all four of those entities are related, but am curious if is there some obvious way the last three would be part of a rant directed at the first.

It made sense at the time.


Posted by: Keir | Link to this comment | 02-21-09 10:26 AM
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292: I knew you were going to say that.


Posted by: Walt Someguy | Link to this comment | 02-21-09 10:45 AM
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To the OP. Rafael Robb, Econ Professor at UPenn, killed his wife (pleaded guilty to reduced charges). He'll be out in five years or so. There's no public information regarding his position at the University at that time. Will he come back to teach? Should he?


Posted by: jackie | Link to this comment | 02-21-09 4:27 PM
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Blue eyes are a mild form of albinism which reduces the melanin in the iris.

Is this true, Emerson (and I'm willing, in this case, at least, to work with a very broad and generous definition of "true"), or is it just something that you, well, sort of made up?

I guess the Yoo discussion is pretty much over, but I'd like to suggest, if somewhat belatedly, that the broad principle of "freedom of speech" (which should be guaranteed to all citizens, imho) is not at all synonymous with the guild privilege of "academic freedom" (which depends upon the former principle for its moral force, but which is very narrowly applied to a very small subset of citizens). The idea that you can't fire one of the architects of a pro-torture regime because it might undermine the institution of tenure has always seemed a bit laughable to me. Probably because I see 'tenure = guarantee of academic freedom = guarantee of freedom of speech in some legally and constitutionally meaningful way' as a pretty silly equation in the first place.

I would like to see Yoo both fired from Berkeley and prosecuted for war crimes. But I'd settle for one or the other (though preferably the prosecutions, if it could only be one or the other). I doubt I'll see either, of course.


Posted by: Mary Catherine | Link to this comment | 02-21-09 10:35 PM
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310: it's basically true.


Posted by: Sifu Tweety | Link to this comment | 02-21-09 10:43 PM
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Surely there must be a few Berkeley students on here? Defenestration sounds great fun.


Posted by: Alex | Link to this comment | 02-23-09 2:02 PM
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