Who knew that my law school could be such a controversial and exciting place?
Robert Delahunty is in the national news (by which I mean Brian Leiter, not USNWR) these days. Wait, who? It’s just not a sexy name like "Yoo" or "Gonzales!"
Delahunty co-authored a Jan 9, 2002 memorandum with John Yoo for the Office of Legal Counsel (OLC) to the Department of Defense (one of the infamous "torture memos"), in which they concluded that "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention Conditions in Guantanamo Bay… or to trial by military commission of al Qaeda or Taliban prisoners," and that "customary international law has no binding legal effect on either the President or the military."
Delahunty’s obligation as an OLC attorney was to give an objective statement of the law, to tell the President (here, the DoD) whether conduct is lawful, knowing that the advice would be relied upon given the President’s constitutional duty to faithfully execute the law in accordance with the Constitution–due to the Supreme Court’s refusal to issue advisory opinions outside of triable cases or controversies, the OLC functions as a sort of "advisory Supreme Court" for the President (with the notable exception that for it, unlike the Court’s Justices, Supreme Court precedent is the binding law of the land). Unfortunately, that’s not what he did.
To me, the memo reads like an advocate’s argument for a desired outcome, which would be fine if that were his lawyerly responsibility, e.g. if he were defending Rumsfeld in court. It is widely agreed by legal scholars that the analysis in this memo is so bad that the authors are guilty either of incompetence or bad faith.
Delahunty helped to lay the legal groundwork for actual and foreseeable torture of detainees, i.e., war crimes and crimes against humanity. One might argue that his best defense is incompetence (like Yoo, however, he possesses sterling academic credentials and would otherwise seem to be highly intelligent and well-trained). Or maybe he just had his ideological blinders on–it can happen to anyone. Either way, it’s clear that there are grave concerns about Delahunty’s professional ethics.
Oh yeah, and the international community widely regards him as a war criminal.
(My own admittedly incomplete understanding of history, Nuremberg, and the international law of war crimes and crimes against humanity is such that he could, in this view, be convicted as a war criminal regardless of whether he merely "got it wrong" or intentionally twisted the law.)
Needless to say, this isn’t the sort of thing anyone wants to be associated with. Which is why there’s now a controversy at the University of Minnesota, albeit one which has perhaps not been reported quite accurately. Dean Charles was misquoted speaking about the students; 1L Jon Taylor–an organizing force behind the petition for the reconsideration of Delahunty’s hiring–was misquoted, somehow "It doesn’t have anything to do with ideology" incorrectly becoming "It has more to do with ideology." (This rather significant misquotation still flies proudly at Volokh, in addition to some other unfortunate posts.)
UMN law professors have published an open letter requesting that the Co-Deans "reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accomodate students who may have concerns about taking a mandatory course from such an individual." In the letter they express concern that the law school as an institution, the faculty, and the students will be tainted by association with the ethically suspect Delahunty. They also rightly rebuke Professor Paulsen for his embarrassing public comments: "We find these statements, and especially one who currently occupies the position of Associate Dean, deplorable."
It’s a sad situation. Here’s what happened: Dale Carpenter, who teaches a year-long 1L constitutional law course, requested leave for the spring semester to focus on his research and scholarship. The two-headed Dean Morrison and Charles (a two-headed Dean is not, sadly, quite as exciting as the worldwide hydra-headed enemy Justice Thomas imagines lurking everywhere in the shadows, but we’ll make do with what we’ve got), in an obvious hurry, hired Delahunty, who teaches at nearby St. Thomas Law School, to serve next semester as an adjunct lecturer. He had a seemingly impressive resume, was strongly recommended by one unnamed professor here, and teaches at a nearby accredited law school. The hiring process for adjuncts is naturally not as careful as that for tenure-track, or even visiting professor, appointments. Co-Deans Morrison and Charles did not know when they hired him that he wrote that particular memo. If they had, (I think) they would not have hired Mr. Delahunty.
Shortly before Thanksgiving, we (students) learned that Delahunty would replace Professor Carpenter next semester. Discovering who "some guy from St. Thomas" in fact turned out to be, students organized to voice their concern and dismay over the hiring of Robert Delahunty; a petition is currently circulating the school requesting his un-hiring. The problem is, the Co-Deans believe they lack (and presumably do lack) cause to fire him, even though they would (presumably) not have hired him in the first place had they been more adequately informed. I kind of feel sorry for them, because what are the odds of this happening? One in a million? They may come off looking worse than they deserve.
For now we’re kind of stuck. Many students and some faculty have publicly distanced themselves from Mr. Delahunty’s views and past work products. They also do not wish for him to join this institution, however temporarily, but Delahunty will very probably be here next semester teaching us. I expect the semester to go smoothly: students will study, teachers will teach, and nearly all of us are capable of being mature and professional individuals. In the interim (and admittedly, much to his credit), Delahunty will speak with his future students and attempt to address any concerns they might have.
So this is what happens when a war criminal is a professor! (I know, I know, presumption of innocence, due process, etc…. it sounds more interesting my way.)
And for the record, it’s quite disappointing that some individuals (both at the school and in the blogosphere) insist on denouncing this all as political trash. There are serious concerns that Delahunty gravely breached his ethical obligations as a government attorney, or that in the perhaps less plausible alternative, he merely produced incompetent legal analysis which was repudiated by the Supreme Court. This is sufficient to oppose bringing him on board. So please, leave aside the absurd cries you direct at those of us who oppose his hiring. "Partisans! Stop hating on conservatives!" "This is academic censorship!" You only make yourself look foolish.