Clever, but only by half

I agree: these Berkely protesters are nuts. Professor Yoo's "torture" memorandum -- though dreadful as a piece of writing, analysis, and research -- is no reason to dismiss the man. (And, take note that even when I was in full "off with their heads" mode, I limited my criticisms to the DoD memorandum, not Professor Yoo's).

That said, however, Pejman Yousefzadeh's criticism of the Berkely protestors is too facile, and misses the mark. Here's what Yousefzadeh writes (via Glenn Reynolds):

For lawyers, an interoffice memo -- such as Yoo's -- is not meant to advocate a particular argument. Advocacy comes only in briefs or memos of points and authority that are presented to a court. The writer of a brief or a memo of points and authorities will take a certain side, and will zealously argue it in an effort to persuade the reader (the judge) of the rightness of the position taken in the brief or memo. Interoffice memos, on the other hand, are designed to explore and give both sides of an issue. Any conclusions will be tentative so as to allow readers of the memo the maximum possible flexibility to question or disagree with the conclusions of the memo. Even if the lawyer does not like what he/she finds in the course of researching an issue, even if the findings are not favorable for the lawyer's client, the lawyer's duty is to fairly and accurately report the law in the memo.

. . . .

It is more than a little shocking that some Berkeley law students don't seem to understand the function of a legal research memo. They will likely be called on to draft many such memos -- some of which may lead to unpalatable conclusions. Again, the drafters of those memos may very well have compelling public policy reasons for what the law should say on a given issue. But that doesn't mean that they can shoehorn their research and their findings to fit their own preconceived notions.

Yousefzadeh is right that an interoffice memo should completely explore the law and "play the bad news" for a client, if there is bad news to be played. But he's wrong to imply that it's a neutral exploration. A legal memorandum does not spring like Athena from the thigh of curiousity. Legal memoranda exist in order to help the client to make a decision. A legal memorandum is an answer to a question, usually: I intend to take action "X". Tell me how to do it within the law.

Rarely, the answer will be that you cannot take action X under the law. More often, the answer is (subject to the kind of CYA caveats only lawyers dream up) you can take action X (or X-prime instead) based on the following legal justification: __________. Sometimes the justification is strong. Sometimes the justification is weak. A good memorandum, of course, gives the client guidance as to whether the justification is strong or weak, as well as the possible consequences if a Court later disagrees.

This is the kind of memorandum Yoo drafted.

There are other kinds of memoranda, of course. My company been sued by a Canadian company; do we have a good or bad argument that the case should be dismissed for Forum non Conveniens? I'd like to produce this product; what patents are out there, and what is the possibility it might be found to infringe one of them? I'd like to use tax shelter Z; give me a good legal justification for it (that way, I'll pay a fine rather than go to jail if I'm caught & the IRS disagrees).

In each case, contrary to Yousefzadeh, the memorandum is arguing -- sometimes tacitly, sometimes overtly -- that the client may take a particular action within the law. It may not be endorsing the action as a matter of policy; that decision is for the policy makers. But it is arguing that a certain policy is within (or outside) the law, and that opinion is fairly attributed to the memorandum's drafter.

That Yoo holds his view on torture may not tell us much about his morality, as Yousefzadeh suggests, or whether he thinks torture is a good idea. It tells us quite a bit, however, regarding Yoo's legal views.

Comments

[sidereal]

"I've been sued by a Canadian company"
You too?

[Edward]

This is so beyond rich,

The petition against John Yoo should concern us. Future lawyers are being led to believe that legal arguments with which they do not agree can be undercut via intimidation.

OR...future lawyers should be led to believe that even cold academic calculations about torturing people are sure to enrage a population who consider such actions morally indefensible.