Chris Edley on John Yoo, and a Question in Response...

Berkeley law dean Chris Edley writes on John Yoo "as dean, but speaking only for himself" here.

I am not satisfied:

Dear Chris--

I note your statement in re John Yoo that:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct--that is, some breach of the professional ethics applicable to a government attorney--material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met..."

I don't yet have an informed view in re John Yoo--I am not a lawyer. I suspect that when I have an informed and settled view it will be the Ernst Kantorowicz view: that once somebody is a member of the university their judgment is not to be constrained in any way whatsoever on any question that could possibly be considered "political."

But I do know lawyers expert in human rights who say that in their judgment John's memo of March 14, 2003 suggests a fact pattern that, if developed and filled out in ways that we can reasonably project, make him part of a conspiracy to commit crimes against what Thomas Jefferson would call Nature and Nature's God.

And I do know lawyers expert in constitutional law--including some Boalt professors--who say that in their judgment the failure of John's memo to make any attempt to distinguish the situation he was analyzing from the situation in Youngstown takes the memo out of the realm of possible good-faith argument and into that of being a serious breach of professional ethics--misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work.

I cannot help but think that it is time for some appropriate arm of the university that is expert enough to have an informed view to consider the matter, and to advise me and the rest of the faculty (a) why John's memo of March 14, 2003 does not, despite appearances, rise to the level of participating in a conspiracy to torture goatherds from Afghanistan who have been sold to the military by clan enemies falsely claiming they are members of Al Qaeda; and (b) why John's memo of March 14, 2003, does not, despite appearances, constitute a breach of the duty of a lawyer to his clients (in this case, the majors and colonels of the U.S. army who did the torturing) of a level equivalent to that of the falsification of evidence in a scholarly work--or to say (c) that in spite of substantial evidence of participation in a conspiracy to torture innocent goatherds and to deceive the majors and colonels who were his clients and acted in reliance on his advice, the Kantorowicz freedom-of-academic-speech position still applies.

I would like to know.

There is, I think, only a choice of poisons here no matter which way Berkeley moves. But I would like smarter and more informed people than me to publicly say what they think the least damaging poison for us all is.

--

Yours,

Brad DeLong

Comments

[Steven Palmer Peterson]

Don't know about smarter and more informed, but probably at least a peer -- Brian Leiter has come out strongly in favor of protecting tenure even though he despises the man:

http://leiterreports.typepad.com/blog/2008/04/american-freedo.html

[BlueStatah]

Bravo, Brad. Well argued, well written, persuasive.

[Francis]

As an attorney who practices before California administrative agencies, I am well aware of the general principles of due process embodied in the various procedural laws governing agencies such as UC Berkeley.

I am not requesting that Yoo be fired. I am requesting that the University INVESTIGATE whether Yoo should be fired or otherwise disciplined.

The very idea that a law school dean is conflating one possible outcome -- firing -- with the process leading up to the outcome is really shocking.

If the University had evidence that you, Brad, had raped and murdered a student, but procured a pardon from the President barring any judicial agency from trying you for the crime, would the University really take the position that the lack of prosecution meant that the University should not investigate your conduct?

Perhaps you had justification. Perhaps you were following the President's orders. Perhaps there are national security implications for your conduct. All of these defenses could come out at your administrative hearing, as would the University's case-in-chief against you.

Prof. Yoo is essentially similarly situated. He has very likely committed federal crimes and war crimes, but is extremely unlikely to be prosecuted due to the political nature of his crimes.

The failure of the federal government to investigate the conduct of its senior staff does not justify the university failing to conduct a preliminary investigation of the same senior staff, who is now the recipient of extraordinary rights and privileges as a professor at one of the most highly regarded educational institutions in the world.

[jerry]

Thank you for following up on this. Tenure is only loosely coupled with academic freedom. Professors without tenure still have academic freedom.

I think it is very reasonable to ask (which is why I come back to this theme) does academic freedom via tenure still have the same value that it used to? If Yoo or Delong were fired, how long would it take for a think tank to snap them up and fully pay for their ride? If someone who's research requires "big dollars" to fund it like "aids heretic" Peter Duesberg (I am not taking any side on Duesberg one way or the other) cannot get funding for his research, of what value is tenure?

In this day of 1 terabyte disk drives for the home, and 100mb free websites, and youtube and think tanks, it is not clear to me at all that tenure provides anything of value to the citizen and the taxpayer, and little of value to the professor besides the widespread acclaim for the size of their penis. Or as Brad puts it, "a member of the university." It's not of much value to students since they often are taught by the untenured, and it's not helpful to gradual students who find it difficult to obtain positions at a university since they need to wait for the tenured to die off.

Harvey Silverglate, cofounder of FIRE, who has taught at Boston and at Harvard is a strong proponent of academic freedom. He also believes that any investigation by the University would be devastating to academic freedom, but he does believe that Yoo's work products at the Whitehouse could be grounds for disbarment.

He's written more about this and going after the other enablers at his blog, The Free For All, http://thephoenix.com/TheFreeForAll/

[Michael McIntyre]

The University of South Florida, to its shame, fired Sami el-Arian because it decided he was probably guilty of criminal acts. Does UC-Berkeley want to make a similar decision regarding John Yoo? I agree that Yoo deserves far worse than loss of employment, but it would be a mistake to send the university down this road because of the frustrating near-certainty that Yoo will never be brought to justice.

[Joe S.]

As a lawyer, I am infuriated by Dean Edley's argument. He conflated two arguments: a moral and a legal one. His moral argument--Yoo is less culpable than the waterboarders because Yoo is better-groomed--is laughable. He also exculpated Yoo because Yoo was in a lawyer's role and reported to Rumsfeld. Bullshit. Lawyers, writing opinions, are constrained from giving their clients whatever they want. Of course, anybody who didn't cite Youngstown Steel in such a memo is ignoring the constraints, and not being a lawyer. I will give Edley his other moral argument. Yoo did, in fact, report to Rumsfeld and Co. I agree with Edley: an eager-beaver Eichmann is indeed less culpable than a Hitler. Not that Eichmann didn't deserve hanging.

His legal argument is good, but like many legal arguments, a harsh one. He cited the UCal faculty discipline rules. I read them in context, and he cited them truly. The rules are divided into a more-or-less unenforceable aspirational part, and an enforceable part. There is no provision for disciplining a faculty criminal (which Yoo is), unless the criminal is convicted (which he won't be.) If Edley had the integrity to stick to the rules and avoided the moralistic whitewash, I would have much more respect for him. Although his intended audience might not.

[Kate G.]

excellent brad.

Kate g.

[ladeluge]

You might want to read Scott Horton's post on Jack Balkin's blog:

http://balkin.blogspot.com/2008/04/response-to-dean-edley.html

[Leila Abu-Saba]

Why would this process be poison to Berkeley? Why can't the whole thing be a gigantic teaching moment?

Humans, even those with tenure, make mistakes, whether wilful or inadvertent. A collection of mistakes turn into a perfect storm of institutional and governmental crimes. Why not analyze the whole thing, in public, for the benefit of the students of Berkeley and the concerned public?

Clearly America needs some lessons on why torture is wrong.

The institution of the university is not harmed by the mistakes of one of its members. The cover up or the accepting of these errors causes harm. The organization is devoted to learning - use this opportunity to teach.

Air our government's dirty torture laundry in public as a lesson to us all - and give us the justice we fear we won't get from our elected representatives in Congress.

[David Milstein]

At the very least, Mr. Yoo should be subject to the extra-legal sanction of having his fellow professors shun him. Serious. This is BERKLEY. If you want to have a community with good values, you have to have an enforcement mechanism. The way good and kind people maintain a community that shares their values cannot be violence, but it also cannot be inaction. Mr. Yoo needs to understand, at an emotional level, that he has transgressed. He has done wrong, as those around him understand it, and they want him the **** out. Some sharp words go a long way, sometimes. The a**hole can get a job at George Mason in DeLay's Washington, but should not be welcome to sully the concept of law in the shadow of the Golden Gate.

[Leila Abu-Saba]

Shunning just turns it into a personal problem.

Think of all the nascent John Yoos studying at Cal, undergrad and graduate. They hear that torture is wrong as an article of faith. They are trained to question assumptions. They might suspect from the press that the outcry against Yoo is political, partisan, a matter of the latte-sippers vs. the "realists" of the world.

Such young persons, whether in the law school or anywhere else, need some good instruction on what exactly is wrong with torture; what are the obligations of a lawyer in public service; the nature of fascism and the history of its rise, particularly in Germany; and they also need to hear from a senior military officer about the rules of war and the military code of conduct.

(For the last, I would suggest Col. Patrick Lang).

This issue of Yoo is not about him personally; it is not about G. W. Bush's administration; it is about protecting our democracy from decay from within. Torture is bad for the republic. Our students need to hear about this, and the reasons why.

Otherwise you will have chased away John Yoo without preventing the rise of another in his place. Remember, he's a product of Harvard and Yale. The American university has an obligation to teach the values that underpin this Republic.

Teach us, Berkeley, teach us. For the sake of democracy, teach us.

[jerry]

Wow, very well put Ms. Abu-Saba, thank you.

[Colin Danby]

The position Francis stakes out above seems plausible. The idea of investigating what colleagues do on leave still gives me the creeps, and Edley has a number of plausible worries. The dean is the person who has to ask what exactly would you have us do, what kind of process or tribunal do you want us to set up here. It is still not clear to me how you reach the necessary findings of fact absent any result from a court.

OTOH Brad has sharpened his argument over the last fortnight while Edley and Leiter fall back on unpersuasive line-drawing. If I understand the anti-Yoo argument, it is that he was not just writing think-pieces on the government's dime, but that he wittingly facilitated, as a powerful official in an position of public trust, an end-run around the law and appropriate process. (Joe S. is good on that.) If that's the case then you can't separate his culpability from the higher officials he helped out.

[Colin Danby]

The Scott Horton thing that Brad now posts at http://delong.typepad.com/sdj/2008/04/scott-horton-on.html seems a solid critique of the Edley memo; he must regret having written it.

On the other side, Eric's posts at Edge of the American West have been thoughtful explorations of the process problems here.

[M. Carey]

Who cares about the "tenure" issue by itself- Why cant he be tried and convicted of war crimes while he is a tenured professor ?

[sm]

M. Carey --

Those who are equally or more guilty have the power to choke off the legal remedies. Or everyone else is acting as if they do. Berkeley is culpable if it does nothing, but if it does something systematic and principled, it may have a very good effect. Someone -- some group of standing -- has to say this is wrong first. Judging the question of Yoo would force people to take a stand -- behind arguments of principal morality and law. Or Berkeley and everyone else in America can continue to act as if nothing important is happening, or that what's important is whether Obama likes orange juice or coffee.

[Roger Bigod]

In theory, there's no reason he can't be tried for a war crime while he has a position at Berkeley. In practice, it would be lame if none of the deciders are prosecuted. Especially when it appears that he was just writing up an ex posto facto justification for acts already committed. It would be difficult to have a trial before Jan 2009, and Bush would pardon him on the way out the door, leading to a tangle of constitutional issues.

It looks like he could be fired after a quick, behind-closed-doors decision, or after a public hearing in which he can present his side of the matter, challenge witnesses, etc. IOW, something like a criminal trial. There are policy arguments in favor of that. It would consume a huge amound of resources, but given that the torture issue stands for the abrogation of habeas corpus, illegal surveillance, indefinite detention, etc. the university would be doing society a great service.

A criminal prosecution might be the best solution, even if the chances of a trial and conviction are nil. It would at least show that some responsible members of the legal profession are willing to stand up for the Constitution. It wouldn't have to be for war crimes. Conspiracy would do just fine. As a knee-jerk ACLUer I hate the conspiracy doctrine, but it certainly applies here.

[Matthew Ernest]

The trouble with invoking Ernst Kantorowicz is in that case the degree to which the question was a matter of politics was the degree to which it was not a matter of scholarship. In contrast, in the case of John Yoo the degree to which the question is a matter of politics contributes to the degree that is is a matter of scholarship.

The question of scholarship is rightly one to bring up with respect to the institution of tenure.

[tc]

As a non-specialist myself, but nevertheless a UC academician, I do not believe that the issue is that of academic freedom. Scholars would probably build a solid case the Yoo's opinion violated established interpretation and practice of international law and, more importantly, contributed to the occurrence of war crimes. Berkley can argue that it cannot do anything until active prosecution takes place. Yet, I believe the University senate can investigate Yoo's actions in the matter based on such premises.

[James Wimberley]

It's rarely the majors and colonels who wield the generator, pliers or the bucket; they sit and ask the questions before, after and sometimes during. There are two ways to organise torture. One is to seek out psychopaths who enjoy the work. The other is to coerce normal NCOs and grunts into doing it. The second line inflicts considerable trauma and guilt on the soldiers. In both cases the duty makes them commit very serious crimes. Yoo had a responsibility to every level of the US armed services and intelligence community, and failed in it.

[China Hand]

I'm a believer in the whole academic free speech/tenure thing. I'm no lawyer but, absent a successful move to censure, disbar, or prosecute Yoo, a Berkeley-led investigation and effort to strip him of tenure would appear to be on shaky ground. Having said that, he's an awful person and a terrible guy for Berkeley to have around, let alone providing an example to the impressionable lawyers of tomorrow. Seems the way to go is to analyze the Yoo's opinions and actions and how they impact Berkeley's reputation and have the deans publicly invite him to go somewhere else. If the academic senate can work itself up in a self-righteous lather and pass a motion of censure disavowing Yoo's opinions and rejecting his presence on the law faculty, that would probably help. If some well-heeled alumnus wants to endow the "Don't Let the Door Hit Your Torturing Butt on the Way Out Chair of Non-Yoo Humanitarian Jurisprudence", that would probably help grease the skids. Surely there are dozens of schools that would welcome a Federalist Society bigwig who clerked for Clarence Thomas and give him a pass on the whole war criminal thing. But that school doesn't have to be--shouldn't be--Berkeley.

[DW]

If Berkeley / Edley is having a hard time w/ the procedural end of pursuing Yoo on tenure and/or employment perhaps an alternate choice is to sponsor a high-profile school debate on Torture. Find one or several other well-spoken professors to debate him publicly on this. Televise it. Make a big deal out of it. Get him to defend his views out in front of his peers and his community. Probably more satisfying than any more back door approach. I personally want to see him provide a rationale for this on the record, on camera.

And I think this also asks the question, is Edley even interested in having Yoo leave? What sort of Law school brings a person of this character on as a professor at one of the finest law schools in the land anyway-- was it his extraordinary credentials as a scholar and a lawyer?