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Thinking out loud about John Yoo (and about Carl Schmitt)

By Jack M. Balkin

I am in the process of sorting out my thoughts about John Yoo. On the assumption that others are also perplexed about the right response to the significant charges that have been made against him and their relevance to his position at the University of California (Boalt Hall), I offer the following as very tentative observations and non-rhetorical questions:

1) What would our response be if he were a tax teacher and had been involved, while on leave or during his authorized service as a day-a-week "consultant" to a private law firm, in writing what almost all members of the relevant "interpretive community" regarded as patently deficient "opinion letters" ostensibly legitimizing tax shelters that served as a very important part of a scheme to defraud the US taxpayers of millions of dollars?

2) Why is it dispositive whether he is charged with or convicted of a crime? I can imagine all sorts of "criminals" I would be proud to have on my faculty--e.g., those who engaged in civil disobedience and perhaps outright resistance to evil political regimes. I can also imagine being basically indifferent to whether colleagues had violated a variety of crimes that are "merely" malum prohibitum. Or am I wrong: Does a law school have a higher obligation to care about its faculty's fidelity to any and all laws than, say, a political science or biology department, which I presume should be guided almost exclusively by concerns about intellectual merit?

Concomitantly, I can offer all sorts of reasons why it is exceedingly unlikely (though Scott Horton suggests that I may be mistaken on this point) that the Department of Justice will in fact prosecute any of the conspirators involved in move toward torture. Is the political unwillingness of the Bush Administration, or, most likely though for different reasons, a Clinton, McCain, or Obama administration, to bring charges against Yoo, Rumsfeld, Colin Powell (alas--surely, that is the most dispiriting news of the week), etc. to be taken as binding the rest of us from making an independent judgment about their culpability? Is any such exercise of independent judgment to be dismissed as vigilante justice? (Recall, I do not regard this as a rhetorical question.)

3) Carl Schmitt, Hans Kelsen, and John Yoo. One of the most distinguished members of the U.C. Berkeley faculty for many years was Hans Kelsen, who had been run out of Germany in part because of the perfidy of the notorious Carl Schmitt, who was prohibited, following World War II, from returning to teach in any German university. As a matter of fact, though, Schmitt continued to exercise real influence on a number of German jurisprudes, including, for that matter, the drafters of the German Constitution, who stipulated the unamendability of provisions dealing with "human dignity" in part because of his brilliant critique, in Legality and Legitimacy, of amendment systems, like that in the United States, that seemingly left basic rights to the tender mercies of a supermajoritarian triumph of the will.

Kelsen, unlike Schmitt, was no apologist for Hitler. But Kelsen defended a theory of "revolutionary legality" that certainly could be turned to a defense of a singularly unattractive grundnorm under relevant circumstances. As much to the point, by almost any account, Schmitt was a truly brilliant thinker who might be said to have much to teach, with regard to the analysis of contemporary legal realities, to law students and law professors. Students might have especially profited from a continuation of seminal Weimar legal debates that had occurred between Kelsen and Schmitt.

So does any defense of John Yoo that doesn't depend on the basically formal argument that he is already at Berkeley--but instead argues that it is in fact a good thing that Berkeley has him as a member of its faculty--require acceptance as well of the proposition that Berkeley should have had the courage to offer Carl Schmitt a position in, say, 1950? Or, to complete the analogy, if Schmitt had been a member of the Boalt Hall faculty in the 1920's who took an authorized leave to defend the Nazi takeover in 1933, would that have been disqualifying? Does the answer depend on finding support of Hitler simply beyond the pale, as against support for the "global war on terror"? (Schmitt was neither tried nor convicted of any criminal activities, though he was never formally "denazified," unlike many people who arguably were more serious collaborators than he in the enforcement of Nazi law.)

Lest there be any confusion, I do not in the least believe that Hitler and Bush are comparable, and I do believe that the United States has all sorts of good reasons to embark on gaining "actionable intelligence" about people, especially if unaffiliated with traditional state, who wish us harm. (On this, see Niall Ferguson's review of my friend and colleague Philip Bobbitt's new book on Terror and Consent: The Wars for the Twenty-first Century, which will appear in tomorrow's New York Times.)

4) I have also recently read William Stevenson's The Man Called Intrepid, about all sorts of irregular and illegal activities that book place both in Great Britain and the United States prior to the formal outbreak of World War II. Indeed, Robert Sherwood is quoted as saying that FDR realized that he would impeached if Americans knew of some of his violation of the neutrality acts. I have no reason to doubt that John Yoo believed that the situation facing the United States after September 11 was as dire as that facing England and the United States in 1939-40. How important is it whether one agrees or disagrees with his analysis of the situation and his concomitant willingness to do what he did?

I will be genuinely grateful for any reflections on these questions--and any other questions that any respondents might wish to raise--as I try to figure out my own position on whether Berkeley has any duty to initiate a serious inquiry into John Yoo's fitness to continue as a member of its faculty (since I agree with my colleague Brian Leiter that demands for his firing even prior to any such inquiry asks for what is an unequivocal violation of important principles of academic freedom).

Full post as published by Balkinization on April 12, 2008 (boomark / email).