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| 5/23 |
| 2008/4/11-16 [Politics/Domestic/Crime, Politics/Domestic/President/Bush] UID:49724 Activity:moderate |
4/11 So ummm.... Why the heck is John Yoo a prof at Boalt?
\_ Because Berekley is a great academic institution with a wide
diversity of viewpoints?
\_ Why do you ask? (I keep hearing stuff about Yoo on the motd
but I don't see why he's controversial.)
\_ He is the main author of the "torture is okey-dokey" legal
argument.
\_ Perhaps b/c he is an excellent lawyer, teacher and scholar?
I am not saying that Prof. Yoo is any of those things b/c I
do not know him. But he could be an exceptional lawyer and
teacher even if his politics are completely incompatible w/
yours. My favorite law school prof and I have quite different
political views on many things but it does not change the fact
that he is a superb lawyer and teacher.
\_ If he such a superb lawyer, why did he produce such a
wrongheaded legal opinion?
\_ I do not know why Prof. Yoo wrote the torture memo.
My experience suggests that someone asked him to
write it. That he reached a conclusion that you
\_ I did not say that Prof. Yoo was a superb lawyer.
Also, I do not know why Prof. Yoo wrote the torture
memo. My experience suggests that someone asked him
to write it. That he reached a conclusion that you
(and perhaps he also) disagree with, does not mean
that he is not a good lawyer. Clients sometimes
(often?) ask one to do support positions one thinks
are morally, though not legally, unsupportable.
(often?) ask one to find legal support for positions
one thinks are morally unsupportable. Fortunately,
sometimes the law does not offer such support. In
other situations, the law does offer the support a
client seeks. And in those case, one has no choice
client seeks. And in those cases, one has no choice
but to disclose that fact to the client.
Anyway, my point was merely that Prof. Yoo may have
qualities that qualify him for the job he holds,
abilities that qualify him for the job he holds,
desipte his political views.
[Update: I think the following blog post is
particularly relevant:
http://preview.tinyurl.com/3g96eg [legal ethics forum]]
\_ No, he is a counter-revolutionary and must be sent to the
gulags. There can be no dissent!
\_ Do you think torture is something that America should
support? Do you think that it is against the law of
the land?
\_ I personally do not think torture is something
America should support. But I do not think that
it is against the law of the land in all cases.
\_ Anyone who defends a counter-revolutionary is also
counter-revolutionary! We will root out these
traitors!
\_ At a certain point, someone has to be responsible for
ass-covering. "I was only following orders" and all that.
\_ Well, he has tenure, which should protect him from
being fired for holding unpopular opinions. But since
he apparently was primarily responsible for the US
violating the Geneva Convention, jail time is not
out of the question.
\_ I have not followed in detail the USSC's decisions
on the GC issue, but as far as I am aware, it is
not clear that the GC has been violated by BUSHCO's
actions or that a violation of the GC would imply
jail time for the principals b/c no applicable
privilege exists.
Re "following orders" - I agree that someone should
be held accountable, but why should it be Prof. Yoo
instead of those who commissioned his memo?
\_ http://en.wikipedia.org/wiki/Criminal_conspiracy
\_ It remains unclear that any law has been
broken wrt Prof. Yoo and/or those who
sought his advice and acted upon it.
Even if some crime has occured, it is
unclear that some form of executive priv.
would not apply.
\_ Do you believe the executive has the
privilege to break the law with impunity?
The Supreme Court disagrees with that.
\_ As I said, I have not followed the
USSC's decision wrt the GC. Based
on my very brief reading of the
decisions, it is unclear that any
crime has been committed by Prof.
Yoo or those who sought his advice.
It is also unclear that even if a
crime has been committed an exec.
privilege will not apply. The USSC
has not rule on this particular
issue and likely never will
("John Marshall has issued his
order now let him enforce it").
\_ Google "United States v. Nixon."
\_ It is not clear to me that
Nixon applies to this
situation. There may be
many kinds of executive
privilege and power.
\_ I think US v. Nixon is very
clear - executive priv. exists,
but it is specifically NOT
immune to judicial review,
particularly in the case
where a crime may have been
committed. I don't think there
are "many kinds" of executive
priv. - there is the kind
recognized by the courts only.
\_ It is not at all clear that
Nixon applies when the Pres.
acts in the arena of foreign
affairs or national defense,
which is the situation in
relevant to Prof. Yoo. The
Pres. inherent power may be
overriding in those realms.
[I was not using "privilege"
in the technical sense]
\_ I am doubtful of that
argument, and I believe
most legal scholars are
as well. Note that
Congress is given the
power to ratify treaties.
\_ Congress is also given
the power to declare
war, maintain a navy,
&c. so clearly there is
shared power over the
conduct of foreign
affairs and national
security. But it is
still unclear whether
the Pres. power trumps.
BUSHCO clearly believes
it does. I am not sure
they are correct. But
the argument exists.
And I believe that we
will never have an
answer.
\_ I wonder how many of the Yoo defenders were calling for that
stupid "A million little Hitler's" prof's head on a platter.
(Or some such nazi/9-11 reference)
\_ They hired him fresh out of the administration in 2004. The torture
memos weren't revealed until after that. If he were brought up on
charges as a contributor to undermining and violating the Convention
Against Torture and war crimes, could he lose his tenure then?
I was very happy to see him on talk show right after he was hired.
A prominent conservative from Berkeley! Now I'd like to see him in jail.
\_ Absolutely, COMRADE! Those who write or speak statements that
WE the PEOPLES disagree with shall be imprisoned! The FIRST
AMENDMENT only protects POPULAR speach WE like! Excuse me,
COMRADE, I must now march on our ENEMIES, the TERRORISTS of
EURASIA. Up with the REVOLUTION, COMRADE!
\_ Uh, is the criminal or incompetent practice of law a first amendment
issue? Surely there are standards about whether an argument is a good
faith effort or a load of legal bullshit, with no evidence or
justification in US jurisprudence. Writing legal opinions
to justify the use of torture makes you a party to violating our
own laws, and treaties against torture and war crimes to which the US
is a signatory.
That's why he's in the news. Because his classified memos are
finally coming out -- those upon which Gitmo and the Padilla
confinement are based -- and they are laughable, to the point of
malpractice.
http://preview.tinyurl.com/4q74q
\_ 404 Not Found
http://preview.tinyurl.com/4q74qt
Bush: "We had legal opinions that enabled us to do it."
\_ Bush will pardon the whole lot of them. |
| 5/23 |
|
| preview.tinyurl.com/3g96eg -> legalethicsforum.typepad.com/blog/2008/04/fire-john-yoo.html While I agree that there are insufficient grounds to dismiss Yoo, I think it is important to separate two strands of criticism of the Yoo memos on torture, executive power, wiretapping, and so on. One strand is that torture is a grave moral evil, the establishment of a "torture culture" (David Luban's term) in the United States has been a moral catastrophe, and we have ceded the moral high ground in international affairs for the foreseeable future. Dean Edley responds to this with a version of the standard lawyer's defense -- the culpability of an advisor must be less than the culpability of the client, whether a private or a government actor. The moral opprobrium belongs to the policy-makers -- Cheney, Rumsfeld, Feith, et al. He also argues that reasonable people can disagree, not that torture is a serious wrong, but over the quality of Yoo's legal analysis: There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. This leads to the second strand of criticism of Yoo's advising, which is that it represents "legal advice" only in the sense that it contains words, cites cases and statutes, and is signed by a lawyer. Although Yoo thinks these memos represent a sound view of what the law permits, they are really nothing more than his fantasy of what the law should permit, if courts and academics hadn't screwed it up. The only thing to do is to wade into the arguments and engage with them as we're all trained to do. I think that with enough time and care, it is possible to demonstrate the the analysis in the Yoo memos is not only shoddy (as Leiter puts it), but so egregiously shoddy that it has to be understood as something other than legal advising -- something more like providing the basis for CIA interrogators to assert an advice of counsel defense if they are ever prosecuted. Marty Lederman and Hilzoy have provided this kind of analysis, and there are countless law review articles making the same point. I do worry, however, that the first and second strands of the criticism get run together in the following way. Defenders of Yoo will say that I'm just another liberal, latte-sipping academic who buys into the lefty human rights agenda, doesn't recognize the danger posed by "Islamofascism," wants the terrorists to win, blah blah blah. In other words, they deny that there is a non-partisan, non-ideological standpoint from which the quality of legal advice can be assessed. If I think Yoo provided shoddy advice, it must be because I disagree with him as a matter of policy preferences. To some extent, that argument is weakened by the existence of conservative lawyers like Jack Goldsmith, who stood up to a great deal of pressure to defend the ideal of the rule of law. Goldsmith is a special case, because he was a lawyer at OLC, but there is no shortage of conservative critics of the administration's attitude toward the law. So I don't think it necessarily makes one a latte-sipper to criticize Yoo on these grounds. Still, I have been following the debate over the OLC lawyers for some time, on blogs and in the media, and it's significant how little confidence we seem to have in the notion of a non-ideological standpoint from which to assess the quality of legal advice. Anyone who suggests that Yoo is somehow deficient as a lawyer is automatically labeled intolerant of intellectual diversity. Set aside the tenure question for a minute and imagine that John Yoo was an entryy-level faculty candidate, after having served in OLC and writing the memos he wrote. My disagreement with his positions, as a substantive, ideological matter, would not be a legitimate basis for opposing his appointment to a law faculty position. But it would be legitimate to oppose his appointment because he has a bizarre idea of what sound legal advice looks like, or a wrongheaded idea of what lawyers should do when their clients demand that they produce legal advice that allows them to do whatever they want to do. This goes to a core competence of law professors, and would be a viewpoint-neutral basis for opposing his appointment. hether there are other steps other members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality, but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing. I would think the answer to this would be obvious: Yoo should be a marginal figure in the legal academy. Someone whose arguments are so deficient, in terms of the standards of legal craft, that they can hardly be called legal arguments at all, should not expect to be taken seriously. Maybe it will just take some time to digest all of these arguments and refute them carefully. Dean Edley is correct that there would be a chilling effect if universities contemplated formal sanctions against law professors who make lousy arguments. But there would be no chilling effect if other law professors didn't take lousy arguments seriously. Again, by "lousy" I don't mean "unpopular" or "controversial," even though I know some will hear me saying that. Or, if you think I mean to equate bad legal arguments with those that are not acceptable to latte-sipping liberals, we have a different argument -- one about whether there is any such thing as the rule of law. |
| en.wikipedia.org/wiki/Criminal_conspiracy actus reus is a continuing one and parties may join "the plot" later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted and/or cannot be traced. prosecution a choice whether to charge statutory or common law conspiracy where the agreement would amount to the commission of an offence if carried out. If the victim has suffered any financial or other prejudice, there is no need to establish that the defendant deceived him or her. dishonestly deceived by one or more of the parties to the agreement into running an economic risk that he or she would not otherwise have run, if the victim has not suffered any loss. edit Conspiracy to corrupt public morals or to outrage public decency These two offences exist, if at all, only when the agreement would not amount to a substantive crime if carried out by a single person and covers situations where, for example, a publisher encourages immoral behavior through explicit content in a magazine or periodical. conviction, it was held that an act outraging public decency required a deliberate act which was in itself lewd, obscene or disgusting, so Rowley's motive in leaving the notes was irrelevant and, since there was nothing in the notes themselves capable of outraging public decency, the conviction was quashed. edit Statutory conspiracy This offence was created as a result of the Law Commission's recommendations in their Report, Conspiracy and Criminal Law Reform, 1976, Law Com No 76. This was part of the Commission's programme of codification of the criminal law. The eventual aim was to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in silly ways which might offend the principle of certainty. There was an additional problem that it could be a criminal conspiracy at common law to engage in conduct which was not in itself a criminal offence: see Law Com No 76, para 17 This was a major mischief at which the 1977 Act was aimed, although it retained (as a temporary measure) the convenient concept of a common law conspiracy to defraud: see Law Com No 76, paras 19 and 116. Henceforward it would only be an offence to agree to engage in a course of conduct which was itself a criminal offence. The so-called Wharton's rule (also known as "Concert of Action Rule") regarding conspiracies is relatively simple: Unless the statute specifies otherwise, when two people are required to commit a crime, such as gambling or prostitution, there can be no charge of conspiracy where only two people are involved. The reasoning behind this rule, which has been enacted in many states, is that conspiracies, by their very nature, bring together individuals with different resources and abilities. However, where there are only two people involved in a crime that requires two people to commit it, there are no concerted group action. In order to prosecute under gambling or prostitution as a conspiracy, most states require more than two people involved. UKHL 6 (03 February 2005) at paragraph 25 referred to: The rule about confessions is subject to exceptions. The first is where the co-accused by his words or conduct accepts the truth of the statement so as to make all or part of it a confession statement of his own. The second exception, which is perhaps best understood in terms of implied agency, applies in the case of conspiracy: statements (or acts) of one conspirator which the jury is satisfies were said (or done) in the execution or furtherance of the common design are admissible in evidence against another conspirator, even though he was not present at the time, to prove the nature and scope of the conspiracy, provided that there is some independent evidence to show the existence of the conspiracy and that the other conspirator was a party to it. edit Conspiracy in the United States Conspiracy has been defined in the US as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. For example, planning to rob a bank (an illegal act) in order to raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use illegal means to accomplish the end goal. A conspiracy does not need to have been planned in secret in order to meet the definition of the crime. com, provides this useful example on the application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the law can handle both the criminal and the civil need for justice. Conspiracy law usually does not require proof of the specific intent by the defendants to injure any specific person in order to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law. Therefore, the Government need not prove the commission of any overt acts in furtherance of those narcotics conspiracies prohibited by 21 USC 846. The Shabani case illustrates that it is a matter of legislative prerogative whether to require an overt step, or not to require an overt step in any conspiracy statute. The court compares the need to prove an overt step to be criminally liable under the conspiracy provision of the Organized Crime Control Act of 1970, while there is no such requirement under 21 USC 846. The Supreme Court pointed out that common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis. The conspirators can be guilty even if they do not know the identity of the other members of the conspiracy. California criminal law is somewhat representative of other jurisdictions. A punishable conspiracy exists when at least two people form an agreement to commit a crime, and at least one of them does some act in furtherance to committing the crime. Each person is punishable in the same manner and to the same extent as is provided for the punishment of the crime itself. The Han Twins Murder Conspiracy case, where one twin sister attempted to hire two youths to have her twin sister killed. One important feature of a conspiracy charge is that it relieves prosecutors of the need to prove the particular roles of conspirators. If two persons plot to kill another (and this can be proven), and the victim is indeed killed as a result of the actions of either conspirator, it is not necessary to prove with specificity which of the conspirators actually pulled the trigger. In order to achieve a conviction on charges of conspiracy, is sufficient to prove that a) the conspirators did indeed conspire to commit the crime, and b) the crime was committed by an individual involved in the conspiracy. Proof of which individual it was is usually not necessary. Such unindicted co-conspirators are commonly found when the identities or whereabouts of members of a conspiracy are unknown; or when the prosecution is only concerned with a particular individual among the conspirators. |
| preview.tinyurl.com/4q74q -> hegel.research.att.com/tts/speech/8108b1046abe52fc86c292fe4d7a19b8.wav Not Found The requested URL /tts/speech/8108b1046abe52fc86c292fe4d7a19b8.wav was not found on this server. Apache/2.0.52 (CentOS) Server at hegel.research.att.com Port 80 |
| preview.tinyurl.com/4q74qt -> www.washingtonpost.com/wp-dyn/content/article/2008/04/11/AR2008041103653.html CLOSE Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. President Bush said Friday that he was aware his top national security advisers had discussed the details of harsh interrogation tactics to be used on detainees. CIA began to prepare for a secret interrogation program that included waterboarding, or simulated drowning, and other coercive techniques. "Well, we started to connect the dots, in order to protect the American people" by learning what various detainees knew, Bush said in the interview at the presidential ranch here. "And yes, I'm aware our national security team met on this issue. The remarks underscore the extent to which the top officials were directly involved in setting the controversial interrogation policies. The Post reported that the methods discussed included open-handed slapping, the threat of live burial and waterboarding. The threat of live burial was rejected, according to an official familiar with the meetings. State Department officials and military lawyers were intentionally excluded from these deliberations, officials said. Gonzales and his staff had no reservations about the proposed interrogation methods and did not suggest major changes, two officials involved in the deliberations said. |