Sunday, September 18, 2005

Profile of Professor John Yoo

As Opinio Juris has noted, it is not often that law professors get front page write ups in papers like the Wall Street Journal. Professor John Yoo of Boalt Hall is profiled here (sub reqd.). The article notes that John is part of a new movement within the American legal academy of "sovereigntists" who are challenging the long-received liberal internationalist view of such places as the American Society of International Law. Not everyone is taking the intellectual challenge so well. I am not a sovereigntist in exactly the same sense, I believe, as John. If I understand his position correctly, he asserts sovereignty as its own value, whereas I believe sovereignty is a secondary value - a good because it makes possible or, more exactly, makes safe, another value, viz., democracy. I am a democratic sovereigntist because I am a democrat first, and sovereignty is valuable because it provides the power necessary to defend it. I'm not sure John would really disagree with that, but he is probably more of a foreign policy realist than I am, and in that sense more concerned to emphasize sovereignty for its own sake than I.

(John's work raises another question, however, not an international law one, but a question about the foreign policy power under the United States constitution and the scope of executive power and war power. Some of these questions came up, of course, in the questioning of Judge Roberts this past week by the Senate Judiciary Committee.)

(John has also been the subject of considerable personal attacks for his work in the Justice Department, over the so-called torture memos. I don't have a lot of patience with the personal attacks; I don't agree with all the conclusions of those internal documents by any means, but none of them seemed to me to warrant the level of invective directed at him. There are important questions that need to be answered about how individuals in various categories - Zarqawi, if ever captured, for example, who might well have information that could save many Iraqi lives versus the quite possibly innocent shepherd - should be treated as detainees and, no, the Torture Convention does not really answer them.)

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