Seeker Blog

In this Tech Central Station essay What Academic Freedom? Pejman Yousefzadeh quotes the invaluable legal blog Volokh Conspiracy on the DOJ memo and the Berkeley law students petition demanding that the University of California fire memo author, now professor, Yoo:

These charges just don’t square with the facts. As pseudonymous legal blogger Juan Non-Volokh points out, Yoo’s memo

“did not advocate torture; it did not even advocate forgoing Geneva Convention protections for Al Qaeda and Taliban detainees. To the contrary, it explicitly took no position on the matter and made clear that the President could, pursuant to his authority as commander-in-chief could impose the Geneva Convention’s requirements on military personnel. It was a legal memorandum written on behalf of a client, not a policy recommendation.”

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.

In writing his memo, Yoo did not editorialize on what the law should be. Instead, he found out what the law is on the issue of the Geneva Convention’s applicability. His conclusions may be debatable — it should surprise no one that legal issues become the subject of fierce debate — but that does not mean that Yoo’s findings should be renounced or that he should be dismissed from his teaching position.