U of M law student and blogger Ivan Ludmer has an interesting piece on the University’s decision to hire former Office of Legal Counsel attorney Robert Delahunty. Prof. Delahunty was one of the authors of a controversial memo that stated that the Geneva Conventions do not apply to captured al-Qaeda prisoners.
In the spirit of full disclosure, Prof. Delahunty is a professor at the University of St. Thomas, and will be my Constitutional Law professor in the spring.
At The Volokh Conspiracy there is also a lengthy series of posts on the controversy as well.
There are two arguments generally getting bandied about here, the first being a violation of academic freedom and the other a questionable determination of legal scholarship.
The first argument is that Prof. Delahunty’s position on the torture issue makes him unfit to be a member of the legal academy. That argument doesn’t fly with the notion of academic freedom. If we are to have an open and inclusive academy, then unpopular, controversial, or difficult opinions must not be shunned on expressly ideological grounds.
As one opponent to the Prof. Delahunty hiring has said, this is an issue about ideology. (UPDATE: The student was misquoted. However, the arguments being made are generally ideological ones, regardless of the stated intentions of the petitioners.) Some people have a deep-seated opposition to the use of coercive interrogation methods. They have a right to that opinion, but that does not mean that they have the right to determine who can be a member of the legal community merely on the basis of their ideological beliefs.
The second argument is that the OLC memo was simply sloppy legal work that’s unbefitting of a member of the legal academy. That’s a plausible argument, but as David Bernstein notes, the view espoused by that memo is shared by at least one member of the United States Supreme Court. Looking at the memo doesn’t seem to support the contention that it’s such a sloppy piece of work that it’s completely invalid or a sign of bad faith.
The real test here is this: would there be any controversy if Prof. Delahunty had authored a memo of equal legal scholarship in support of a massive new expansion of federal government powers on environmental issues? Something tells me that the level of controversy would be practically nil. My impression is that the scholarship argument tends to be little more than a façade for the real ideology basis for opposition to Prof. Delahunty’s hiring.
The University of St. Thomas is a Catholic law school that tries to integrate Catholic values into the curriculum whenever appropriate. I don’t think one can make a strong argument that the interrogation methods advocated in the OLC memo are at all compatible with Catholic legal tradition — in fact, Catholic legal theory is quite explicit in its opposition to torture. Yet UST did what I believe was the right thing: brought in someone with an excellent record of legal scholarship who can challenge those beliefs. That’s what the academic community should do.
The University of Minnesota has the right to uphold whatever standards they want in hiring their faculty. However, if the grounds for withdrawing Delahunty’s offer is one of ideology, that the U of M is abrogating their obligation to support academic freedom. The position of the OLC memo may be morally questionable, but the overheated rhetoric that some have used to attack it is pure hyperbole. The memo may be sloppy legal work — I don’t find that to be particularly persuasive — but if the issue is that Prof. Delahunty supported a position that some find morally reprehensible, that’s still not enough.
UPDATE: The Minnesota Daily has updated the quotation from Mr. Taylor to say that the issue isn’t about ideology. However, that seems to be a less than persuasive arguments based on the attacks being used. Still, the correction should be noted.