Above the law at the law school?

A new law school professor hired by the University personifies the primary political problem of the past five years.

Jason Stahl

The past five years have been disastrous for America’s standing in the world. An unnecessary war against those who did not attack us, torture of prisoners, and indefinite imprisonment for unknown charges are just a few examples of actions taken during this period which show the United States to be weak, immoral and incapable of living up to our own traditions.

How did we get here? This is the question historians of the United States like myself will continue to ask for years to come. And while there are certainly many reasons for how we arrived at such a point, one reason stands out above all others: We have been led by men and women who felt their authority superseded the authority of the law. Such a worldview created a moral and ethical vacuum from which there emerged the policies I cited above – along with many others.

Clearly, George W. Bush, Dick Cheney, and Donald Rumsfeld were key acceptors of such a worldview. They declared a “new world” and a “new type of war” after Sept. 11 – a world and a war which they understood better than anyone else. This type of hubris led them to disregard laws which, they argued, hampered actions that they “needed” to take. And while it is obviously important to keep the focus on high-level actors such as Bush and Cheney, it is equally important to shed light on those who worked inside of the administration and enabled this worldview.

Last week brought news that the University’s law school was hiring one of these insiders, Robert Delahunty, to teach constitutional law during the upcoming spring semester. In 2002, Delahunty worked in the Justice Department’s Office of Legal Counsel. In this capacity, he authored, along with fellow lawyer John Yoo, a now infamous draft memorandum to the general counsel of the Department of Defense titled, “Application of Treaties and Laws to al Qaeda and Taliban Detainees.”

The overall conclusion of the memo was twofold. First, it concluded that domestic and international laws of warfare (such as the War Crimes Act or the Geneva Conventions) did not apply to al-Qaida and Taliban fighters because they were “non-State actors.” Second, it argued that “customary international law has no binding legal effect on either the president or the military because it is not federal law, as recognized by the Constitution.”

One would be hard-pressed to find a more perfect example of enabling the “men above laws” mentality as the memo clearly situates the president above both international and domestic laws. Members of the State Department immediately recognized this, arguing in a 40-page response memo that both conclusions were “untenable” and “wrong.”

So why did Yoo and Delahunty come to such a conclusion? Like Bush, Cheney, and Rumsfeld, they too accepted the premise that their authority superseded the law in a post-9/11 world. On Sept. 11, 2001, Yoo declared, “This is war. The law operates differently.” This mentality clearly impressed Delahunty, who swooned that Yoo “came to this first, before others.”

To have lawyers who take such an “above the law” position teaching constitutional law seems problematic at best and unethical at worst, which is why law students and faculty are now organizing against the appointment. The deans of the law school are attempting to belittle this movement in the media claiming, as Dean Guy-Uriel Charles did, that it is “not that big of a deal” and that “you’ve probably only got three students who are unhappy.”

In reality, when I last checked on Friday, 90 students and nine professors had signed petitions against the hiring. Moreover, the deans have only themselves to blame as they made the hiring decision without any input from faculty and/or students – thus forcing these groups to air their grievances in public.

And it is good that they are doing so, for there ultimately needs to be as broad a repudiation as possible of the lawlessness of the Bush administration.

If we are ever to fully return to the idea that we are a nation of laws, and not a nation of men, Americans will need to refute and discredit all those who argued for the opposite – whether they are still in the White House or teaching in our universities. Only then will we begin to recover our nation and its tattered international reputation.

Jason Stahl welcomes comments at [email protected]