More Yoo
I've been reading avidly through law professors' comments about Professor Yoo, and I will trouble you, dear readers, with only a few reactions.
All the professors are mighty quick to defend the sacrosanct nature of tenure, on the grounds that academic freedom permits them not only to say, but to think and right pretty much anything they want, no matter whether their comments make as much sense as a frog's croaks or whether they are acting in service of the most reprehensible acts. But I think they go too far. First, isn't there a standard of morality that must be met to retain tenure? And if there is, Dean Edley rather quickly prejudged the matter in announcing that there was no moral equivalence between Yoo and the President; he was rather harsh on the President, too, in his rush to judge Yoo exonerated. It seems to me that at the least Boalt ought to investigate the question of morality, by learning the facts and disclosing them. We shouldn't need a legal action to learn what actually happened in the case of the infamous memo.
Second,
what classes does anyone at Boalt think Professor Yoo ought to teach? Constitutional law, military law, procedure, and administrative law all seem ruled out, at least to me. It's one thing to maintain his tenure but a different thing to tell the students they should learn from him.
Third, exactly what is so terrible about asking law professors to move on to other jobs if their work is not only incompetent but morally repugnant? University presidents have to leave, from time to time, for reasons that do not approach what has been uncovered here; so too with deans. In science, those who fabricate experimental results or simply do bad science find that they lose all support in their academic positions, and they go elsewhere. It seems to me that academic freedom is not under assault in the present instance, but rather the legal profession is being challenged to explain under what circumstances issues of character, integrity, ethics, and respect for life govern the judgment and conduct of lawyers. When the first reaction of law professors is to assert that of course they can never lose their guaranteed employment, but on that basis alone they are willing to discuss the questions presented, let me say that the group in general isn't making a good impression on the jury.
Sadly, I think termination is not an available remedy for unethical legal conduct within the University of California system.
While I think the rule is too rigid, it is the applicable law. Unlike Mr. Yoo, I treat legal standards as binding and think he is legally entitled to keep his job. Dean Edley has said the same.
On the other hand, I think his colleagues are entitled to be quite clear about their opinion of his legal analysis and his legal ethics, and the students are quite free to select courses taught by those who respect the rule of law--which will likely make Mr. Yoo a very lonely man.
April 14, 2008 12:52 AM | Reply | Permalink
Sit him in a room with nothing to do. Most people leave within weeks.
April 14, 2008 3:28 AM | Reply | Permalink
Scapegoating Yoo is engaging in the game played to oust Churchill, and worse would only be an exercise in counterproductive futility. Yoo would end up being provided a rock to hide under by a think tank until time and spin has washed away the past, and then he could reemerge championed by contemporary conservatives.
Think I am wrong? Consider:
Has the quality of students entering into UC, Berkeley dropped to the point that they need to be protected from exposure to Yoo?
It is a far better punishment that Yoo retains his Professorship, and be forced to see the derision in undergraduates' eyes for the rest of his tenured career.
April 14, 2008 8:33 AM | Reply | Permalink
The abuse of professors during the anti-communist era needs to be remembered. People's careers were terminated, not because of what they did, but because of what they believed. This was a complete perversion of the right to freedom of speech.
The Yoo case has the potential to become an example of the same type of punishment of ideology, but from the other side. The proper course of action is for Yoo to be investigated by a suitable professional ethics body within the legal profession. If he is found to have violated the code of conduct of the legal profession then the university has grounds to dismiss him for his misconduct, not for his beliefs.
There are other professors who have controversial viewpoints like Richard Posner and Alan Dershowitz, but they continue to teach because their professional behavior remains within the proper bounds.
In a true democracy one has to be willing to put up with all sorts of distasteful speech. A lesson that too many people are willing to ignore.
April 14, 2008 8:48 AM | Reply | Permalink
And in the free-marketplace of ideas, I firmly believe that John Yoo's vision will lose. It would be unwise to send him packing into the shadows.
April 14, 2008 8:56 AM | Reply | Permalink
Dean Edley should be condemned for hiring someone with Yoo's record. One might wonder why Edley hasn't also hired Alberto Gonzales, who I read is looking for a job.
April 14, 2008 10:40 AM | Reply | Permalink
To set the record straight --
John Yoo was hired in 1997 and granted tenure at Boalt Hall in 1999; Dean Edley wasn't hired until 2004.
April 14, 2008 11:44 AM | Reply | Permalink
Ellen, thanks for the correction.
After reading the posts I "assumed" and got my ass kicked. :-)
I wonder if Yoo always saw the world as he did when he was working for the Bush gang or did he have a conversion after he was hired by these cretins.
April 14, 2008 2:50 PM | Reply | Permalink
Interesting question.
Yoo is a member, a very, very active member, of the Federalist Society, which preaches a strict separation of powers. Once he decided that defending the country -- prosecuting the War on Terror -- was an Article 2 responsibility, he would naturally conclude that legislative decrees (statutes, treaties, and such) based on Article 1 powers which sought to limit those Article 2 powers were nullities.
The memo, under this view, would have been unnecessary; however, those puling, scaredy-cat bureaucrats demanded something -- so he produced it.
April 14, 2008 11:47 PM | Reply | Permalink
Tenure has no relevance to this discussion as the activity in question is the work he did as a lawyer for the government, not his academic views he expresses as a professor. The fact that he maintains those views now as a professor ought not protect him from the actual work he did before assuming that post.
April 14, 2008 11:29 AM | Reply | Permalink
UC Berkeley biologist Peter Duesberg, due to his skeptical views between the causal relationship between HIV and AIDS, is another whose dismissal has been intensely promoted by those who find his views immoral, even though the debate is entirely scientific. The use of morality as a bludgeon against politically unpalatable discussion in academia clearly risks abuse and further dampening of debate, already compromised by corporate funding of so much research today.
April 14, 2008 11:51 AM | Reply | Permalink
due to his skeptical views on the causal relationship between
April 14, 2008 11:53 AM | Reply | Permalink
A list about "Rehabilitation" of people with questionable morals cannot exclude Admiral John Poindexter. He hid his sliminess long enough to come back and haunt us as the head of intelligence gathering. Fortunately, he has left that post.
April 14, 2008 2:20 PM | Reply | Permalink
Academic freedom protects Yoo's tenure. That should not even be on the table for discussion. However, there is no reason for him to be assigned required courses nor is there any reason for students to attend his electives. It is up to the students and his colleagues to shun, condemn, ridicule and let him know that his alien ideas concerning American law will not be accepted. And why is Alan Dershkowitz being excluded from this discussion. He is the one that introduced legalizing torture into the discussion at the elite law schools.
April 14, 2008 4:12 PM | Reply | Permalink
syvanen,
you are not the first person to mistakenly equate yoo with dershowitz.
there is absolutely no comparison and does a dis-service to dershowitz who has a fine legal mind and would never have produced the torture memo as conceived by yoo and by any measure would not have produced the desired result.
the dershowitz torture meme has taken on a life of its own and been twisted. dershowitz was actually making a far more nuanced argument.
essentially, he theorized that if you believe in the ticking time bomb scenario, state right up front that you torture and get a warrant for it from a judge. iow, make it explicitly legal and subject to the rule of law. don't relegate it to the shadows.
personally, i believe the TTB scenario is a crock, but, i respect the intellectual honesty to game out the alternatives.
despite, alan's rabid support for israel, he's no yoo.
the key thing is not Yoo's poor logic and endorsement of radical, authoritarianism, it's his criminal complicity and his actions.
April 14, 2008 6:53 PM | Reply | Permalink
Sorry that is not an excuse. Dershowitz brought up the ticking time bomb story as a wedge to introduce the use of torture into the civilized circles that rule America. He was actually trying to excuse Israeli interrogation techniques that have been considered torture for many decades. But he opened the discussion. Yoo as an impressionable young ambitious lawyer simply extended Alan's ruminations into policy. He is probably correct. There will likely be a reward for him from some ultraright benefactor.
BTW We now probably have over 2000 suspects that have been tortured by Americans or its proxies over the past few years: Can anyone name a single example where the interrogation revealed the location of a ticking time bomb? I didn't think so. So what is the point of bringing up an issue if it has zero practical application. Well Alan is not stupid. He knew as well as any other sensible human that the scenarios he envisioned do not arise in real life. However, he is a good propagandist and he wanted to put torture into civilized discussion. He succeeded. Alan is not defensible.
April 14, 2008 8:24 PM | Reply | Permalink
again, that is not entirely fair.
dershowitz didn't invent the ticking time bomb scenario. he argues that it is more beneficial to regulate torture, because it will happen anyway, and the benefits thus derived are better than the costs, which is an incremental spread both legal and illegal torture.
i happen to think he is wrong and that in this case the cure would be far worse than the disease so to speak.
such a system, were he somehow to foist it on the american people in a criminal conspiracy with the WH, i agree would also likely be a war crime.
April 14, 2008 9:54 PM | Reply | Permalink
It appears likely that Yoo is a war criminal.
IF, he is a war criminal, he can and should be fired.
I think Berkeley has an obligation to determine whether or not Yoo is, in fact, a war criminal.
There's no need to rush. Various investigations are on-going and many of his memos remain classified. I would be comfortable with Boalt waiting a reasonable time for the record to develop and perhaps the answer to is Yoo a war criminal will be definitively answered.
However, should any doubt remain, the University has an obligation to make an independent determination as to whether or not Yoo is a war criminal, and if so fire him.
I believe the tenure system here protects Yoo's beliefs no matter how repugnant, but it does and should not guarantee a war criminal employment.
April 14, 2008 6:40 PM | Reply | Permalink
Damn right!
Tenure or no tenure the idea that California taxpayers should have to pay a teacher who never shows up for classes because he's sitting in a Dutch prison in The Hague is outrageous!
April 14, 2008 8:28 PM | Reply | Permalink
I'm a big supporter of tenure -- but there are three grounds for firing a tenured professor for cause -- grounds which are significantly underused -- and two of them may apply in this case.
(1) misfeasance.
Teaching so inaccurately that it constitutes malpractice. This is very hard to judge in most subjects, but things like a math teacher announcing to his or her students that 1+1=3, and testing them on it, would qualify.
The consensus among lawyers is that Yoo's memo represents legal malpractice (by failing to reference Youngstown, for starters); if he teaches his students to "practice" law this way, it would probably be misfeasance.
On the other hand, perhaps he only gives this sort of bad legal advice on his own time, and teaches his students not to do anything of the sort; that wouldn't be misfeasance.
(2) malfeasance.
Committing serious crimes, or moral turpitude. Yoo probably is guilty of conspiracy to commit war crimes, and is definitely guilty of moral turpitude for supporting torture. I think is this pretty clear, but the evidence is certainly strong enough to justify a malfeasance hearing.
(3) nonfeasance.
Just not showing up for work. He's not guilty of this one.
April 14, 2008 9:19 PM | Reply | Permalink
I also wonder if Yoo can be disbarred in California. Would that not ahave an effect on his ability to teach. Even if not, it would send a mesage to Yoo wannabe's at Boalt...
April 16, 2008 3:46 PM | Reply | Permalink
I think Yoo probably is a war criminal. But he's not disclosing everything about his direct and substantial involvement. I wonder what would convince him to come clean?
April 14, 2008 8:54 PM | Reply | Permalink
I am not qualified to comment on tenure or what is ethical/unethical for law professors to advocate. What I do know is that if it were not for the A.C.L.U., we would not know the details of the "Yoo Memos," which is what catapulted this story back into the news of late. What we need to do now, I think, is get behind the A.C.L.U.'s effort to push the House Judicary Committee for a fuller, deeper and wider investigation of the entire issue. John Conyers needs to issue subpoenas rather than invitations. And major media outlets will not keep this story in the news unless they are forced by developments to do so. I hope everyone who is as disturbed by the latest disclosures and the administration's "So what?" response to them as I am will do two things: contact your congressman, and then, ask your local paper why they are not covering President "We do not torture" Bush's latest arrogant retort.
April 14, 2008 9:30 PM | Reply | Permalink
You make my case. No he is not in favor of torture, he only wants to regulate it.
Give use a break. He is telling beureucrats how to introduce torture. Why regulate it of course!
He put this out there for discussion and some bufoon like Yoo is given the lead in putting it into practice. Alan D is one of architects of this torture policy. His name should be discussed along with Yoo.
April 14, 2008 11:11 PM | Reply | Permalink
As someone who spent a quarter century dealing with the academic personnel sytem of the University of California, I can speak to the tenure question. The point is not the content of the legal advice Yoo gave when he was on leave from the University. He was, to use a new phrase, just doing his job. He was asked to justify legally whatever the administration wanted to do. That's what he did.
Now, I agree with those who see his actions as being those of a war criminal. However, it's not the job of the University to try and convict. That is the responsibility of the judicial system, either national or international. Once such a determination is made, then the University can withdraw tenure and fire his ass.
April 14, 2008 11:45 PM | Reply | Permalink
Dershowitz introduced the 'ticking time bomb' argument into our discussion. It lead directly into the justification of torture for prisoners in our custody. Dershkowitz, as well as Yoo, are responsible for the outcome. Accept it. Both are torture lawyers and both are the products of America's elite law schools.
April 15, 2008 3:15 AM | Reply | Permalink
It is amazing how easy it is for the vast majority of culpable individuals for The American Government's imprimatur upon human torture to slip away from responsibility by just sacrificing one of their own to the ravening packs.
Look at a few who have already abandoned the BuShip and are playing renunciants from the shore: Doug Feith, Richard Perle, and Michael Rubin to name, significant because they are Neoconservatives, and this is a strategy historically played by Trotskyites. How many times willed the left-side of the political bipolarity be neoconned by this shell game, before they realise they are rubes? This idiocy and another also again in play, the circular firing squad, has cost y'all more than you can even begin to imagine in just my lifetime. So watch the rats as they scurry for their sewer hidey holes, and remember that during the primaries, you fire blanks, or The Nation is liable to end-up with President John McCainold, serving-up the same old mediocrity responsible for this present-day insanity, First Lady, Cindy McNovocaine, and reappearing rat-bastards slipped-in via executive appointments.
Here's an abridged short-list of appointees, who need be considered as investigative targets, when considering torture's imprimatur I have handy:
Bybee sits as a Federal Judge, and you shriek about Yoo? Think about priorities, and true potential for societal harm.
April 15, 2008 10:59 AM | Reply | Permalink
"distasteful speech", "Yoo's beliefs", "unpalatable political discussion in academia"
this isn't about ideas - please, trudge through the memo - and while you're at it, put aside any concerns about the slapdash, schlocky nature of his, um, work -(although his dearth of citations is grounds for tenure loss/dismissal)
if the aforementioned UC Biologist, in an official capacity through govt contract, had written a public health directive promoting malpractice and quite specifically provided practitioners with means to do so with impunity - ex post facto, then we'd be talking
this isn't about morally repugnant legal theory or some 'what if' session at Boalt - Yoo's crime is obvious to anyone reading through
April 16, 2008 8:21 AM | Reply | Permalink