Delahunty (cont.)

I'm glad to see all the reaction my post below on bringing in Professor Delahunty is getting. I think it's an important conversation to have and good points are being made on both sides. There have been some more developments on this for anyone who remains interested:

• Nine* professors at the law school wrote an open letter opposing the hiring of Professor Delahunty.
• The Minnesota Daily has an article on the topic, including a claim that the authors of the above-linked letter take issue with.**
• The St. Paul Pioneer Press also has an article in it, notable primarily for quoting me for the conservative viewpoint (and people say there is no liberal media bias! Oh wait, those people include me...).
• The City Pages picked up on a claim in the Pioneer Press article that "U officials apparently didn't realize that Delahunty also co-authored one of the most controversial legal opinions from the nation's war on terror and that hiring him could prompt criticism on campus," asking "Do they have the internets at the U of M Law School?" From the Press article, it looks like Dean Morrison was unaware of Delahunty's authorship of the memos before hiring him, though the articles misrepresent the situation by using the plural of 'official.'
  
• Finally, the City Pages question about whether we at the U Law School have internets seems justified on one other point, since the letter from the professors linked above was supposedly sent out to the student body via e-mail, yet we never got it.
• Volokh Conspirators Jonathan Adler and David Bernstein have also weighed in. I noticed when hits on this site started spiking, as Professor Adler kindly linked here.
  

*The letter concludes by saying that the professors who signed were just the ones around when the draft was being written, so it represents a lower limit on opposition, rather than an upper one.

**"Paulsen also said the protests are coming from a few extreme individuals in the Law School.

"That's a gross violation of academic ethics and academic freedom," he said.

Paulsen attributes the uproar to one professor in particular he said has an ideological problem with those who disagree with his legal point of view. Paulsen declined to name the professor.

"It sometimes happens that even professors are not respecters of academic freedom and get their facts wrong, too," he said."

So, does the tone in my bullet points mean I've changed my position on the Delahunty hiring? No, it just means that there is some rather unsavory stuff happening around the hiring and Delahunty would probably be better off with different defenders. For example, the claim from Professor Paulsen about "a gross violation of academic ethics and academic freedom" is, at best, hyperbolic alarmism. I think Professor Paulsen just likes to ratchet up his rhetoric to match that of the people he's arguing against, but that detracts from his credibility (and as the law professors' letter notes, his credibility is further reduced by claiming this is one rogue professor). Finally, his claim that this is coming from extreme individuals is neither necessary nor proper, to go with some Con Law lingo. Many people would consider Paulsen to hold extreme views, and I doubt he would enjoy having those views dismissed on that basis.

Also, the failure of Dean Morrison to know that Delahunty co-authored a torture memo is really disappointing. He should have known before making the offer. My guess--and this isn't to make an excuse, since it doesn't excuse him, it just explains--is that the information failure stems in part from our two-headed Dean problem. Charles could have known and not thought it important, or each could have thought the other was more active in the vetting process. (I should also note that if Dean Morrison wants to retract the offer on this basis, that's fine, but I don't think it's necessary. Amy Bergquist--also quoted in the Pioneer Press article--told me that, at a meeting with affected 1Ls, Dean Morrison said that an obstacle to withdrawal is due process, since the offer's been made and accepted. As Amy said, that doesn't strike me as crucial, since if the U changed its mind, it could offer to pay the contract plus a premium to get out of it and likely not face problems.) (UPDATE: According to commenter Adam, "[i]t was explicitly stated at a staff meeting today that neither Dean knew about the memos when they hired Delahunty." Like I said above, this serious mistake might be attributed to the two-headed Dean issue, so I wouldn't necessarily agree with Adam that the process should be changed because of it, but it is a big issue that "we can't trust the Deans to conduct even the most basic inquiry into the people they're bringing in to teach here." There should probably be some blowback for it, at least a public apology from them. And it stands reiteration that if, knowing what they now know, they wouldn't have hired Delahunty, then they should withdraw the offer and thank the people who brought it to their attention. UPDATE END.)

So onto substance, since I know that's why you all come here, to read my arguments, not read me summarize other peoples' arguments (right? Right? Please?). I have to say that I didn't find the professors' article particularly convincing. Their ultimate claim is that

Our opposition to the hiring of Mr. Delahunty has got absolutely nothing to do with academic freedom but all to do with legal ethics. Mr. Delahunty's role in the Torture Memos was not academic and we object to hiring someone of his credentials rather than to anything that he may say in class should he be so hired or concerns about his scholarly research or academic work.

Fine and good. But if he truly believes his arguments in the torture memo are a statement of the law, why should it make a difference whether he did it in pursuit of academics or public service? It still seems to me Professor Delahunty is being opposed for having gone to work for the government, whereas if he'd shot straight to academia, there would be no problem. I'm in favor of people engaging in government service, so the incentives here seem to me to line up the wrong way. But let's roll with this--what do the professors have to say about Delahnty's ethical problems?

They quote an Amnesty International statement "call[ing] upon state bar authorities to investigate the Administration lawyers alleged to be involved in the torture scandal for failing to meet professional responsibility standards." All right, which standards? Unfortunately, the statement does not say, I suppose because it's evident to them.

The professors also note (as did an anonymous commenter here) that in Hamdan, the Supreme Court rejected the Yoo-Delahunty memo. Yes, they did, but they rejected it 5-4. I'd be very hesitant before claiming that having a position adopted by a substantial minority--even one Justice--of the Supreme Court is prima facie evidence of ethical problems or violations of US law.

We get to the meat of the claim just below, though. "[A]ttorneys providing advice to a client regarding how to circumvent the law may be held complicit in the resulting criminal conduct. . . . [S]uch attorneys may be violating their professional obligations to determine the scope of the law, and to refer to relevant moral and ethical considerations when giving advice." They also quote at length an editorial in the American Journal of International Law, which argues that government attorneys have obligations beyond that of private attorneys, since they represent the government and American public.

But what's the claim here? It looks to me--and please correct me, as I know some of you are itching to do--that the claim is that Delahunty was wrong and should have known he was wrong. Is there really anything more here? Let's concede the first point, that he was wrong. I think he was wrong. The nine professors think he was wrong. Amnesty International thinks he was wrong. But the key point is, he seems to think he was right and there appears to be a decent basis for that belief, since there is support in the scholarly community (e.g., Michael Paulsen) and the judicial community (e.g., the four Hamdan dissenters) for that view. So why exclude him from the academy, again? On the basis of "tainted credentials?" Would those credentials be tainted if (G-d forbid) Hamdan came down the other way? And if not, how can we say they're tainted now? I just don't buy the argument the professors are making here. I might sound like a broken record, but this strikes me as viewpoint-, not credential-based opposition. Please do keep trying to convince me otherwise, though. I enjoy the discussion this is producing and appreciate that the tone has been civil throughout. Let's keep it that way.