Evan Goldstein: Torture and Tenure at Berkeley

Torture and Tenure at Berkeley - ChronicleReview.com: The release a few weeks ago of a memorandum on torture written by John C. Yoo in 2003 has prompted calls for his dismissal from the University of California at Berkeley. In the 81-page memo, Yoo — a tenured professor of law at Berkeley and at the time a senior official in the Justice Department's Office of Legal Counsel — offered a detailed opinion on the legal strictures governing U.S. military interrogations of detainees. The memo advocated a narrow definition of torture, defended the use of harsh interrogation tactics, and gave the White House sweeping wartime authority to override federal law and international treaties. While the memo was later rescinded, critics charge it provided the legal underpinning for abuses that took place at the Abu Ghraib prison in Iraq.

A petition circulated by the American Freedom Campaign, a liberal pressure group, states: "John Yoo should not only be disqualified from ever serving in government again, but he should also be prohibited from spreading his distorted view of the law and the role of lawyers to young law students." The National Lawyers Guild is also calling for Yoo's dismissal. Such efforts have, in turn, sparked a vigorous debate about tenure, academic freedom, accountability, and moral turpitude.

Christopher Edley Jr., dean of the law school, University of California at Berkeley: My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless. (BerkeleyLaw)

Brian R. Leiter, professor of law and philosophy, University of Texas at Austin: I certainly think that Bush and his gang of war criminals deserve to have their status confirmed by a court of law. If Professor Yoo is convicted of a crime, then this would be a different case. But it is not even clear … that he is guilty of any crime, and he has, quite plainly, not been convicted of any. Anyone calling for him to be fired is calling for him to be punished for his ideas, and nothing else. (Leiter Reports: A Philosophy Blog)

Paul Campos, professor of law, University of Colorado: This is absurd. What's at issue aren't Yoo's ideas, but rather the very real possibility that he is a war criminal. (Indeed, U.S. courts have established what … Scott Horton [of Columbia Law School] describes as "a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude toward international humanitarian law.") …

Under such circumstances, it takes a twisted sense of moral priorities to get outraged about the (very slim) possibility that Yoo might lose his academic sinecure because he went out of his way to help the U.S. government commit war crimes.

In the end, I suspect that for Leiter, as for so many professors of this or that, words such as "torture" and "war crimes" are indeed nothing more than words, with which they can continue to play their petty and useless academic games. (Rocky Mountain News)

Timothy Burke, professor of history, Swarthmore College: Riddle me this: Why isn't John Yoo just as big a hack when it comes to constitutional law as Ward Churchill was when it came to Native American history? This isn't about simple disagreement with the substance of his arguments in the "torture memos." It's about Yoo making claims (claims with consequences far greater than what normally follows from scholarship, even legal scholarship) that are just factually wrong or are screamingly disingenuous.

Whatever the standards might be for employment at the Justice Department (a different issue), shouldn't this kind of approach to knowledge and scholarship disqualify someone for an academic post? (Easily Distracted)

Stephen Bainbridge, professor of law, University of California at Los Angeles: If we're going to start firing academic lawyers for having represented unpopular clients or having unpopular views, I've got a very long list of left-liberal law professors that could be given pink slips. (StephenBainbridge.com)

Henry Farrell, assistant professor of political science, George Washington University: This is not, in the end, an issue of academic freedom. That is, it doesn't concern Yoo's ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the U.S. government, to facilitate war crimes. …

The issue isn't that Yoo believes that the president's powers allow him to do this, or that he has made the case in public argument that this is so; instead, the issue is that he wrote an opinion which appears on its face to be directly intended to help U.S. personnel to torture and (if necessary) maim prisoners.

Thus, while I personally find, say, Alan Dershowitz's opinions on torture and the bombing of civilians to be reprehensible and disgusting … I wouldn't argue that he be asked to step down from his position, because this would chill the ability of academics to freely engage in unpopular and controversial arguments. I have serious doubts over whether these liberties should provide protection

for the kind of action that Yoo is alleged to have engaged in. (Crooked Timber)

Mark A.R. Kleiman, professor of public policy, University of California at Los Angeles: In the absence of a criminal conviction, does Yoo's conduct warrant removal of tenure? I don't think so.

It wasn't committed in connection with his university duties. The act of giving advice to the president, even bad advice, isn't obviously inconsistent with competent academic performance. For a law faculty to set itself up as the judge of whether the advice Yoo gave fell so far below professional standards as to raise questions about his scholarly credentials, and to do so in a politically charged atmosphere, strikes me both as a terrible idea on its own merits and a precedent I'd hate to see established.

So, strange as it seems, I'm inclined to think that John Yoo belongs in prison (along with his client) but not to think that in the absence of a conviction he ought to be stripped of tenure. (The Reality-Based Community)

Matthew Yglesias, associate editor, The Atlantic: Either Yoo's legal advice to President George W. Bush — i.e., that he has under the Constitution an unlimited right to, for example, order his subordinates to "crush the testicles of a child" — falls in that category of things reasonable people can agree to disagree about, or else it amounts to participating in the war crimes of the Bush administration. If the former, then he clearly doesn't belong in prison. But if the latter, then how can he teach law students? (Matthew Yglesias, The Atlantic Online)

Michael C. Dorf, professor of law, Columbia University: I agree with the critics of the memo that it was shoddy, dangerous work. But Professor Yoo should not be made into a scapegoat whose culpability relieves the Bush administration more broadly, or Congress, of responsibility for interrogation policy in recent years. (Dorf on Law)