Support for Professors Yoo and Rotunda and The Right of Free Speech

Below is my letter to the editors of the Chapman Panther in support of Professor Ronald Rotunda's piece, "The right of free speech, regardless of what is spoken":

Kudos to Ronald Rotunda for his piece, "The Right of Free Speech, Regardless of What Is Spoken," for steering clear of the faux legal argumentation polluting the airspace in the debate on detention and interrogation policy. Many attorneys, even those among our law faculty, cannot withstand the temptation to make a legal-shaped block fit in a moral-shaped opening. These "legal" arguments have taken a couple different forms, including a particularly creative one: that the memos written by Professor Yoo and others were legally inept and thus do not qualify for First Amendment protection. It is a clever position that seeks to paint those authors as unmitigated advocates of torture -- perhaps out of concern for national security, or perhaps just out of sadism. So stripped of legal privilege, as the strategy goes, Yoo and co. are now exposed to endless moral stone-throwing by an indignant populace growing ever colder on our nation's "Overseas Contingency Operation."

But this is not a serious argument -- certainly less, at least, than John Yoo's analysis of the legal merits of the administration's positions. To take just one example, Professor Yoo's March 14, 2003 memo -- a veritable treatise at 81 pages on every imaginable domestic and international source of authority respecting the treatment of detainees -- exemplifies the rigor to which the administration subjected the legal issues at play. Yoo even discusses hypothetical defenses based on necessity and the sovereign right of self-defense, which might be raised in the event the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not).

Recently, at The Volokh Conspiracy (http://volokh.com), University of Minnesota professor and former White House ethics attorney Richard Painter, took issue with these defenses as described in Professor Yoo's memo, apparently because they do not answer whether they are likely to be successful or not. Of necessity, any discussion on the defenses available in such unprecedented circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. Thus, attacks from folks like Painter are pure form over function, because, under their view, Yoo could have resolved the issue by offering a meaningless disclaimer, something like, "these are sound arguments, but predicting a court's ruling would be impossible without knowing the politics of the particular judge."

But Professor Yoo took as good a crack at it as can be asked of any lawyer called upon to opine on moral philosophy and political theory -- areas that are "above his payrate" as an attorney giving legal advice. For his efforts, he now receives steady lashings from folks who would modify legal arguments to advance their moral cause. But the real losers are those of us who actually do want real scrutiny on the moral issues at stake: All the noise and chatter from wrong-headed arguments – making legal claims in moral arenas – give the impression that there are no good reasons to be critical of our nation’s interrogation and detention policies. There are. The importance of the moral questions are diminished by blustering legal responses. Lawyers ought to stop offering them.