Marty Lederman on The Waldron/Yoo Debate on Torture

April 26, 2005

cross-posted on Balkinization
Last Thursday, the Columbia Law School chapters of the American Constitution Society and Federalist Society co-sponsored a debate on torture featuring University Professor Jeremy Waldron, of Columbia, and John Yoo, of the Boalt Law School (formerly of OLC). Professor Waldron is the author of the forthcoming article Torture and Positive Law: Jurisprudence for the White House, to be published in the Columbia Law Review.

The Columbia ACS has now posted a video of the hour-long debate here. I strongly encourage all those interested in this issue to take the time to view it. Professor Waldron's presentation is perhaps the most powerful and cogent account I have recently seen on this subject. But don't take my word for it: I also strongly recommend this defense of Professor Waldron by the pseudonymous Columbia Federalist Society blogger "T. More."

A couple of especially provocative comments from Professor Yoo:

Upon noting that Professor Waldron is a distinguished Kantian philosopher: "I think it would be very difficult to be a Kantian and to have any responsibility in the government."

And, in response to a question about the broad assertions in the OLC memos of the President's alleged authority as Commander-in-Chief to ignore statutory limitations-such as the argument in the August 2002 torture opinion (which I discuss briefly here) that Congress is powerless to restrict the President's decisions concerning "what methods to use to best prevail against the enemy"-Professor Yoo explains that Congress cannot criminalize any "legitimate exercise" of conduct that "falls within" the President's Commander-in-Chief power. What Professor Yoo apparently means by this is that if the President may engage in particular conduct in the absence of statutory limitation, Congress is foreclosed from restricting that conduct by statute. Thus, for example, Professor Yoo shockingly asserts that Congress could not enact a law prohibiting the President from ordering the use of nuclear weapons or from sending troops to Europe.

Perhaps the most interesting exchange occurred toward the end of the debate, when "Ex Post" asked Professor Yoo to engage Professor Waldron on the moral questions raised by the Administration's legal manipulations of the words of the torture statute and the Geneva Conventions. Yoo explained that such moral considerations are for the policymakers, not the lawyers: "In [writing] the legal memos, what's the function of a lawyer? I view the function of a lawyer in those cases as to interpret the Geneva Conventions or the torture statute and not to interject my own moral views into what the government should do. . . . [The moral arguments] are the kinds of things that ought to be considered in an analysis that's separate from the legal analysis."

To which Waldron responded as follows:

"I think with regard to some law, you can do the strict separation between the letter of the law and the moral spirit that Professor Yoo has indicated. [W]ith regard to much human rights law, and much international law, and much constitutional law, sometimes you cannot do that; you cannot understand the human rights provisions without understanding-at least in some sense-the moral ideas that inform it, imbue it, give it its coherence, shape its concepts, give us our sense of its importance. I believe that's true of human rights provisions prohibiting torture. I believe it's true also of the scheme of protection laid down in the Geneva Conventions. You need to understand this not as a strange set of runes which we will look at as if we've never seen them before, and have no idea what they're trying to do, but [will] try to figure out what the text requires. In some sense, that's obtuse lawyering, as well as obtuse morally.

Now, Professor Yoo is exactly right that that doesn't mean we intersperse our own moral or ethical or religious preferences into the matter. But these are provisions that have what Gerry Neumann [of Columbia Law School] calls a 'supra-positive aspect.' You cannot understand them without understanding that they embody certain moral ideas-and that [understanding] affects what you can do in the way of manipulating them or limiting them or restricting them out of existence."

I think Professor Waldron is absolutely correct that it is "obtuse" to attempt to construe the torture statute and the Geneva Conventions without giving serious regard to the moral and practical objectives that obviously embue those laws. And as many of my earlier posts here have demonstrated, I'm certainly no defender of the legal analysis in the August 2002 OLC torture memorandum, which did not even acknowledge those moral and practical objectives. Nevertheless, having been an OLC attorney for eight years, I can attest that it is often much easier said than done to incorporate the "supra-positive" aspect of such laws into one's legal analysis; or, more to the point, it's extremely difficult to persuade policymakers to act in accord with such "supra-positive" aspects of the laws, when the actual words of the laws contain evident gaps, limitations, and ambiguities-some of which were inserted intentionally by the lawmakers who negotiated, drafted, and ratified such enactments. I'd be very interested in hearing others' views on this question.