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The Robert Delahunty torture-memo controversy at St. Thomas

Should Robert Delahunty, an author of memos leading up to the Bush administration's fateful decision to abandon the Geneva Conventions with regard to war-on-terror prisoners, hold the position of associate professor of law at the University of St. Thomas School of Law?

Robert Delahunty's résumé is unimpeachable. He attended a Jesuit high school. He has three bachelor's degrees (summa cum laude, Columbia University, 1968; Oxford, classics in 1970; Oxford, philosophy, 1972). In 1983, he received a JD cum laude from Harvard and promptly passed the New York Bar. He began a government career. From 1992 to 2002, he served as special counsel to the Office of Legal Counsel at the Department of Justice. He concluded his public service with a brief stint at the Office of Homeland Security. He now teaches international law at the University of St. Thomas.

The controversy is about three memos and a calendar.

Jan. 9, 2002: Memorandum to William J. Haynes (General Counsel, Department of Defense), "Application of Treaties and Laws to al Qaeda and Taliban Detainees." (PDF) This legal opinion for the Defense Department, by Deputy Assistant Attorney General John Yoo and Special Counsel Delahunty, concludes that al-Qaeda and Taliban members are "not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs." Ten days later, Secretary of Defense Rumsfeld wrote to the Joint Chiefs of Staff a directive (PDF) stating: "The United States has determined that al Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949."

Jan. 11, 2002: In a memorandum for Alberto Gonzales (counsel to the president) entitled "Geneva Conventions," Yoo and Delahunty repeated the position of their Jan. 9 memo. This provoked a sharp dissent from William Taft IV, the State Department legal adviser, who argued that the analysis was "seriously flawed," "untenable," "incorrect" and "confused." Taft copied his memo to Gonzales.

Jan. 14, 2002: Yoo and Delahunty sent a rebuttal to Taft that is entitled "Prosecution for Conduct Against al Qaeda and Taliban Members under the War Crimes Act." (This correspondence is not currently posted online but has been widely discussed, including by Jane Mayer in "Outsourcing Torture," The New Yorker, Feb. 14, 2005.)

Delahunty also coauthored with Yoo a memo (PDF) on Oct. 23, 2001. This went to Gonzales and William Haynes and is entitled "Authority for use of Military Force to Combat Terrorist Activities within the United States" [note: underline in original].

This memo argues that Defense Department could conduct military operations against terrorists inside the United States.

Delahunty will not publicly debate his critics. His supporters say that Delahunty does not support torture. Some supporters argued that he was simply laying out options, although the memos clearly express a legal conclusion.

Some have said that Delahunty's memos are not central to the torture scandal. It is clear however, that the policy decision to set aside the Geneva Conventions cleared the way for creating abusive interrogation policies. The timing and content of the Yoo/Delahunty memos show that they were pivotal in the process of abandoning the Geneva Conventions. The Jan. 9 memo was written as a legal opinion to the Defense Department. It was understood as such by the secretary of Defense, who communicated it as such to Joint Chiefs of Staff in a policy directive only 10 days after it was written. The two memos on Jan. 11 and 14 backing up the opinion that the Geneva Conventions did not apply to the Taliban and Al-Qaeda were directed to the White House. Three weeks later, President Bush issued his finding (PDF):

"I accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, ... Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees do not qualify as prisoners of war under Article 4 of Geneva.  ... Al Qaeda detainees also do not qualify as prisoners of war."

Delahunty was a mature lawyer who had a position as a senior public servant when he wrote his opinions. He did not have to sign those documents. His peers, including William Taft IV, in the administration dissented. Delahunty has a right of free speech — but the debate is not about free speech. It is about the quality of Delahunty's work, the sycophancy of his service, and the destructive impact of his work on the edifice of law itself. For these, he does not merit the honor of being a professor of law.

Steven H. Miles, MD, a professor at the Center for Bioethics, University of Minnesota, is the author of "Oath Betrayed: America's Torture Doctors."

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Comments (7)

University of St. Thomas School of Law Dean Thomas Mengler has inexplicably and repeatedly insisted in his defense of Professor Delahunty that he (Delahunty) only wrote one of the legal memos drafted by the Office of Legal Counsel. How can the Dean not know of Delahunty's much greater involvement in writing these other cornerstone memos? And how can the Dean not know that other government officials (i.e. State Dept. lawyers, FBI and military officials) vigorously opposed Delahunty's legal opinions supporting torture? The FBI even opened a "war crimes file" on the abuses agents witnessed as a result of Yoo-Delahunty's legal reasoning that the Geneva Conventions did not apply.

The Dean also attempts to distance Delahunty from the later, more explicit "torture memos" authored by Yoo and Bybee, but the St. Thomas "Distinguished Chair" Michael Stokes Paulsen (who is Delahunty's mentor and who St. Thomas hired for some reason at about the same time as Delahunty) does just the opposite in his defense of the authors of the "torture memos". Paulsen has written and testified in May of this year about "The Lawfulness of the Interrogation Memos" by relying on Delahunty's mistaken notion that the Geneva Conventions did not apply to Bush's "war on terror". Unless I'm not reading his opinion correctly, Paulsen seems to be defending ALL of the later more explicit torture memos by relying on the initial Yoo-Delahunty faulty reasoning.

What's most disconcerting is that these professors currently teach constitutional law and ethics at St. Thomas. The hypocrisy is breathtaking when Dean Mengler welcomes students to the St. Thomas Law School by boasting that "we have a reputation as an academically excellent law school firmly ground in our Catholic intellectual and social tradition. Our unique mission of "integrating faith and reason in the search for truth through a focus on morality and social justice" is the foundation on which we build a community that emphasizes professional excellence and servant leadership.

Maybe I'm missing some key legal artifice, but I would challenge St. Thomas Dean Mengler, Associate Professor Robert Delahunty and "Distinguished Chair" Michael Stokes Paulsen to explain how their support of the torture memos squares with "a focus on morality and social justice".

Thank you Dr. Stephen Miles for your excellent article. It is incredible when we see such a brilliant mind as Delahunty loose balance and perception of ethical aspects of the law in an effort to be on the team even when the team is heading down a dark hole of evil actions. It just goes to show that being a brilliant student is not the same as being wise.

And thank you Coleen Rowley for your complementary observations. I also would like to hear how Dean Mengler thinks he is leading St. Thomas "through a focus on morality and social justice" when this focus includes deflecting the historic social and ethical values of the Geneva Conventions.

Even if people interpret Article 3 of the Geneva Conventions differently, torture is still a violation of international law, as agreed to in the United Nations Universal Declaration of Human Rights. The pertinent Articles are:

5) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

6) Everyone has the right to recognition everywhere as a person before the law.

8) Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

9) No one shall be subjected to arbitrary arrest, detention or exile.

10) Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

William W. Taft IV, January 11, 2002 Memo
directed to John Yoo:

William W. Taft IV, February 2, 2002 Memo

Colin L. Powell, Secretary of State, January 26, 2002 Memo.

More of the legal memos before and after Taft's can be found here:

The subsequent (but related) JAG memos on the Working Group Recommendations on Detainee Interrogations also highlight the potential dangers to members of the US military inherent in the policy of Geneva Convention carve-out memos and the subsequent Detainee interrogation policies.

Thank you for this comment, which I have been waiting to hear for month after month of silence from various media organs, deafening. What on Earth. Torture issues aside, and does it ever sound strange to start a sentence like that, the man supplied a formal legal opinion suggesting that the president of the United States can pretty much do as he will on American soil in the name of preventing terrorism. That opens the door to gulags and no habeas corpus stateside and martial law. As far as I can tell he has not rescinded these comments and has even written a half dozen articles in recent years with Professor Yoo defending them:

No one is saying he needs to be thrown in jail, but can the University of St. Thomas please find the dignity to remove him from a program that uses the words "Faith, Reason, and Community" to describe its purpose?

Thank you, Dr. Miles, for writing this article. As an STA alumni, I hope someone in the St. Thomas college administration holds Delahunty accountable for his not-very-Christian and very illegal activities in the Justice department. The last thing we need is a man of the poorest possible morals indoctrinating the next generation of St. Thomas law students.

Is the employment of individuals whose work effort runs contrary to the common understanding of christian values and the dignity and sanctity of life a good thing for a prominent Catholic university to do?

It is troubling enough to think of these individuals teaching at a public university, but for St. Thomas to continue their employment is beyond the pale.

Where is the moral outrage from spiritual leaders who found it so easy to castigate Notre Dame for its invitation to President Obama to speak at commencement earlier this year? Surely a 20-minute speech and an honorary degree does not warrant the level of protest as say professors at a Catholic university who openly condone and support torture.