In Re John Yoo...

The consensus of thoughtful lawyers on the matter of John Yoo appears to be that John Yoo's conduct amounts to intellectual malpractice--and rises to a level warranting dismissal from the University of California:

With this many academics talking about this stuff, if there were enough directly applicable precedents to be 'controlling' here, someone would know the story offhand. I could be wrong, but I'd bet a fair amount that the decision of how to apply the faculty code of conduct is up to Boalt Hall, reasoning from first principles, not from precedent.

And at that point, I have a very easy time saying it's the equivalent of scholarly misconduct. Legal work isn't exactly scholarship, but it has its own ethical obligations. And writing a memo like that [of March 14, 2003] (everyone's harping on Youngstown, but that's something whose absence takes the memo out of the realm of possible good-faith argument) is unethical -- if those arguments were made to a court, they would be an unethical attempt to deceive the court into believing there was no contrary precedent. That failure to meet the standards of practice required by the legal profession appears to me to be close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct.

Note that I'm not arguing that he's such a bad man that he should be fired, but that the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating) lawyer that he should be fired as a professor of law....

I think it's a pretty easy case to make... [O]n some level the reason you can fire a professor for scholarly misconduct is to make it clear that if you, e.g., falsify data, you may not teach -- people learning to be scholars shouldn't learn that such falsification is compatible with scholarship. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is very much the same sort of misconduct, and the argument that people learning to be lawyers must be protected from coming to believe that it's an acceptable part of lawyering is closely parallel...

This seems to me to be dispositive. I don't see an answer to this argument.

Comments

[save_the_rustbelt]

If we are going to sack lawyers for unethical conduct about half of them will have to become plumbers.

And if we start sacking professors who incompetent and/or looney the ranks of academia will thin considerably.

Not that he should have been hired, but now that he is the same due process applies to him as other lawyers and professors.

So who hired him?

** "scholarly misconduct"

Does that include professors who publish work by grad students under their own name, without attribution?

[jerry]

str, he was hired long before he went all torture on our ass -- the question is why was he given tenure, and the answer is that tenure is a pro-forma procedure used to initiate a member into the old boy's network at the expense of the taxpayer.

And if a few professors are fired for incompetency, have no fear, it's like cockroaches, there will be plenty more behind them. In fact, it would actually be a very good thing because most gradual students know there is very little chance they will get a perfessership, again, due to the problems of tenure.

As I travel around the blogosphere, especially my liberal blogosphere, I am constantly finding myself wandering by accident into some pseudo-liberal professor's bogosphere.

[RW]

Following a couple comments rooted in prejudice and stereotype (with the second adding almost complete incoherency to the mix) ought to make any contribution to the conversation easy but since the topic is someone who could in principle be convicted of violating Article 4 of the torture convention, as well as Common Article 3, arguing for his dismissal based on academic misfeasance becomes complicated by the potential accusation that he is actually being punished for more than that misfeasance.

And that forces the observation that relevant parties in Boalt Hall, even setting their respective need to rationalize a manifestly poor selection of colleague aside, might encounter real difficulty in making any decision other than facing down the storm. Pity.

[Nathan Myers]

The problem Boalt Hall has in firing Yoo is that they need an argument that justifies firing him but doesn't justify firing them as well.

[Leila Abu-Saba]

John Conyers wants Yoo to testify to Congress about the whole business. Yoo says he don't wanna. Conyers says he'll subpoena.

http://tpmmuckraker.talkingpointsmemo.com/2008/04/conyers_schedules_hearing_with.php

If Cal won't hold him to account, Congress will? Fingers crossed.

[Neal]

Yoo never intended his findings to be debated in a court of law--it was a "clever" response to a request of the theoretical limits of presidential power. It a matter of providing a the preliminary lines of a legal "fig leaf" for the leaders so that they could say that their methods and procedures had been reviewed by legal counsel. They escape criminal charges on the basis of Yoo's counsel. Yoo escapes criminal charges because his was "theoretical" work, and he had no expectation of subsequent actual criminal conduct.

[Barbara]

I am going to pull an anne from the annals of DOJ legal reasoning that pushes the envelope:

DISABILTY:NO 'LAWLESS' GOVERNMENT STANCE...
E-MAIL Print Save Published: June 28, 1984
To the Editor:

With characteristic understatement, Anthony Lewis finds the Government's position of ''nonacquiescence'' in lower-court rulings in Social Security disability cases to be ''lawless in the most profound sense'' (column June 18). I do not comprehend Mr. Lewis's definition of ''lawless.''

The only law on this question is the Supreme Court's unanimous ruling in the Mendoza case - that the Government is not legally bound to follow adverse rulings in the lower Federal courts in subsequent cases involving different parties. Would there not be some small virtue in Mr. Lewis's revealing the existence of this case to his readers?

The further question is: When should the Government voluntarily acquiesce in such rulings as a matter of sound policy? That question does not lend itself to a simple uniform answer. Fairness, conservation of scarce resources and assuring the sound development of legal doctrine must all enter into the balance.

In the case of the disability program, additional constraints are created by the mandate (enacted in 1980 by a Democratic Congress and signed by President Carter) that the massive disability eligibility rolls be reviewed every three years and by the statutory requirement that the administration of the statute be ''uniform . . . throughout the United States.'' Nevertheless, contrary to the picture Mr. Lewis paints, formal nonacquiescence in court of appeals rulings has always been and continues to be a rather exceptional practice. He quotes former Solicitor General Griswold's sensible rule of thumb that the Government should, in any event, not press a legal position after failing to prevail in four courts of appeals; in fact, the Government's litigating posture in disability cases has complied substantially with that guideline. Mr. Lewis complains in particular about the Government's actions in cases where a recipient of disability benefits is found not to be disabled under current standards but where no ''medical improvement'' has been shown - cases, by the way, involving not a new Reagan Administration standard at all but one initiated under President Carter. The Government lost cases on this issue in several circuits and won in one. Thereafter, the Secretary of Health and Human Services announced a moratorium on further disability termination under this standard. On the other hand, it was determined that pending court cases raising this issue should be continued.

This course of conduct does not in any way depart from norms set in other administrations; the word ''lawless'' seems to me, in any event, not an apt way to describe it.

Mr. Lewis apparently believes that only in this Administration has nonacquiescence ever applied within a circuit. He is misinformed.

Nonacquiescence in lower-court Social Security rulings, inside and outside the circuit, has been a practice engaged in by many administrations (including, specifically, both the Johnson and Carter Administrations). Nonacquiescence in tax and labor board cases has never been limited to cases outside the circuit.

Just where to draw the lines of nonacquiescence in lower-court decisions is a complex issue about which there has been over the years disagreement within as well as without the Government. It is not at all clear to me where Mr. Lewis himself would draw the lines, and whether I would disagree with him. In any event, he is too swift to conclude that anyone who differs with him about just where to draw those lines must suffer from gross moral turpitude. PAUL M. BATOR Washington, June 20, 1984

The writer is Deputy Solicitor General and counselor to the Solicitor General.

The author was a celebrated law professor (there's still an award given in his name) who was the legal mastermind of the government's "meat axe" approach to trimming the disability rolls in the early 1980's. Non-acquiescence is a fancy way of stating that the government doesn't have to obey specific court decisions in any jurisdiction other than the narrowest reach of the court that rendered the opinion. It was, to say the least, controversial, and in the view of many, truly an attack on the rule of law.

[Barbara]

Here was Anthony Lewis's response:

ABROAD AT HOME ; Respect For Law?
E-MAIL Print Save By ANTHONY LEWIS ; WILLIAM SAFIRE IS ON VACATION.
Published: June 18, 1984
Does the Reagan Administration show contempt for the rule of law? A sharp denial of that charge has come from a distinguished legal figure in the Administration. Paul M. Bator, a Harvard law professor now serving as Deputy Solicitor General, addressed the question in a speech to the American Law Institute. His analysis deserves reflection.

The particular context is the legal treatment of Americans getting disability benefits under Social Security. Since taking office the Reagan Administration has moved to cut about 500,000 individuals from the disability rolls. Federal Courts around the country have held in case after case that improper standards were used in stripping people of benefits. But the Social Security Administration has repeatedly refused to follow those decisions in other, similar cases.

The pattern of official ''nonacquiescence'' in judicial disability decisions was described in a New York Times news story on May 13. It quoted strong criticism of the practice by several Federal judges. In a subsequent column I used the disability situation as an example of official lawlessness. The two pieces were severely criticized by Professor Bator. He said they showed how the press oversimplified public issues, reducing hard problems to ''superficial one-liners.''

The disability cases, he suggested, were not about disregard for the rule of law. Rather they raised a ''subtle and interesting'' problem of how the Government could assure adequate judicial consideration of difficult legal issues.

If the Government had to treat every case it lost in the lower courts as binding in all like cases, Professor Bator said, there would be terrible consequences. There would be no chance for other Federal circuits to consider the issue, for conflicts among the circuits to develop, for reflection to deepen understanding. There would be pressure on the Solicitor General to take every such case on up to the Supreme Court, and for the Court to rush to judgment.

Professor Bator was quite right to say that the first judicial decision cannot be the last word on the question of Federal law. But that theory does not reach the reality of what has been happening in the disability cases.

First of all, the Government has not just resisted a decision in one or two circuits, waiting for a possible legal conflict to develop with others. Most of the 12 Federal Courts of Appeals have now rejected one or more of the Administration's standards for revoking disability benefits. Most have held, for example, that there must be evidence of medical improvement before an administrator can say that someone is no longer disabled.

Erwin N. Griswold, former dean of the Harvard Law School, worked in the Solicitor General's office 50 years ago and was Solicitor General in the Nixon Administration. He says the office followed the practice of acquiescing if three or at most four courts of appeals decided a legal issue the same way - unless the issue was taken to the Supreme Court. For example, Mr. Griswold said, the Treasury did not want to recognize professional corporations, ''but after three or four losses in the courts of appeals I said I wouldn't authorize any more appeals.''

Second, when a Court of Appeals has laid down a rule of law, the general Government practice has been to apply it within that circuit even while seeking a different outcome elsewhere. That has not been done in the disability cases. If a disabled New Jersey woman goes to court and gets her benefits back, the Administration keeps taking them away from others in New Jersey in similar situations.

Professor Bator conceded that the refusal to follow decisions within a circuit raised concerns of fairness, but he said there were countervailing interests of national uniformity in ''mass programs of welfare and tax.'' But the Internal Revenue Service, even when it disagrees with one circuit's decision, applies it to all cases in that circuit.

That the disability cases are different from the model described by Professor Bator is also evident from the judicial reaction. Judges all over the country are expressing outrage at the policy of nonacquiescence, and speaking of official contempt. If Mr. Bator has any quarrel with the talk of Administration lawlessness, it should be with judges before journalists.

Federal District Judge Joseph S. Lord 3d of Philadelphia, finding last month that a woman whose illness had her down to 88 pounds was totally disabled, said it was ''blatant hypocrisy'' for the Government to find otherwise. ''If the purpose of the Department of Health and Human Services is to crush defenseless human beings,'' he said, ''as it seems to be, it would succeed unless in cases like this courts interposed a protective arm.''

That is the other thing about these disability cases. They are not just abstractions of legal theory. They involve human beings: mostly poor, desperate people with wasted intestines and missing limbs. Few know about their rights or have lawyers to fight for them. For a Government to say that each must litigate an issue of law again, no matter how often it has been decided, is lawless in the most profound sense.

[Barbara]

The goal isn't to punish Yoo, it is for knowledgeable people to debate his reasoning in the light of day and if the result is utter humiliation, well, so much the better for the defenseless who are unlikely to ever be in a position to protect themselves.

[Patrick]

I'm not feeling this one. That ethical rule applies to documents presented to a court. This was not a document presented to a court. Case closed.

I'd say he's a bad lawyer for failing to provide his client with a balanced view of the law in private correspondence (lawyers are expected to counsel clients, and advocate before courts- one requires objectivity, the other aggressive subjectivity). But he certainly never misled a court about the nature of legal precedent.

If he should be fired or censured, it should be for what we all know he did- he wrote a fig leaf memo in bad faith in order to satisfy a powerful client who wanted legal cover for illegal acts. He's a dishonest toady. If some rule has to be mangled in order to fire him for being a dishonest toady, it should probably be the rules of tenure, not legal ethics.

[Joe S.]

You can't equate legal to scholarly misconduct. As a general matter, a lawyer is doing her job when she argues a position to other lawyers because she was paid to do so. This is at the core of legal representation, but is also at the core of scholarly misconduct. (Yep, this is pretty common conduct among scholars these days. It doesn't make it better. Scholars dance around it by claiming that they would have taken the position anyway, but may as well take the money as well.)

A better argument for firing Yoo's sorry ass goes like this:

1. Yoo committed a crime: aiding and abetting torture through a legal memo which had no objective merit. (This is also a violation of legal ethics, but this is a peccadillo, compared to the substantive crime. It's torture, for God's sake!) I am not sure if Yoo's subjective state of mind is relevant. If so, it would be up to Berkeley to decide on this.
2. Perhaps not all criminals are immoral, but all torturers are.
3. IIRC, Yoo was affiliated with Berkeley when he wrote these memos. (If not, you could still argue that Yoo was hired with the understanding that he was a moral person.)
4. Berkeley should therefore treat him the way it would treat any professor who--say--diddles undergrads: termination. Torture is a far greater moral offense than having sex with a (semi-)consenting (semi-)adult.

[me]

For those that think Yoo is defensible read how Murat Kurnaz was treated in "Five Years of my Life An Innocent Man in Guantanamo". Yoo is a traitor to the constitution and didn't he swear to uphold the constitution when he became a lawyer.

This guy is lucky there is no Nuremberg.

[Sebastian]

"Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is very much the same sort of misconduct, and the argument that people learning to be lawyers must be protected from coming to believe that it's an acceptable part of lawyering is closely parallel"

I detest Yoo and his torture memos,but lawyers are deceiving themselves (or maybe not, perhaps just trying to deceive you) if they believe that his memo was fundamentally different from memos and advice given by shady but not disbar-able or dismiss-able lawyers everywhere.

It is just especially jarring to see cheesy legal techniques marshaled in defense of something so awful. And his legal theories aren’t even that wacky when put in context with the free-form legal jurisprudence which was so popular among American liberals over the last 50. If terms can change their meanings so much as to contradict other sections of the Constitution (8th amendment flatly disallows the death penalty says Marshall and Brennan which must come as a surprise to the 5th amendment “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” and “nor be deprived of life, liberty, or property, without due process of law”.”

He applied the same technique to the Presidential war power.

Should a textualist say that he is clearly wrong? Of course. But textualism has been abandoned by a majority of legal intellectuals for so long that is hardly a serious indictment.

Yoo pushed on the edge of the boundaries of the profession, yes, but he did so in a long tradition of lawyering.

If you want to say that describes lawyering as being in an atrocious state, I’ll agree with you wholeheartedly.

[Doug]

Not kidding with the Nuremberg reference. Harper’s reports ("A Tale of Three Lawyers" by Scott Horton, April 8, 2008):

The memo was authored by John Yoo. This memorandum was designed to authorize the introduction of torture and other cruel, inhuman and degrading interrogation techniques to be used upon prisoners held at Guantánamo, and ultimately also used in Afghanistan and Iraq. The memorandum authorized waterboarding, long-time standing, hypothermia, the administration of psychotropic drugs and sleep deprivation in excess of two days in addition to a number of other techniques. Each of these techniques is long established as torture as a matter of American and international law. The application and implementation of these techniques was and is a crime. …

Following the implementation of these techniques, more than 108 detainees died in detention. In a large number of these cases, the deaths have been ruled a homicide and connected to torture. These homicides were a forseeable consequence of the advice that Haynes and Yoo gave.

+++

Firing for cause seems a secondary issue.

[anne]

Barbara, that was entirely to the point and excellent. Thank you.

[don juan anon]

In response to Sebastian's "argument" (i.e., "It's the liberals' fault."), a couple points are worth mentioning.

First, as a matter of professional responsibility of a member of the bar, a lawyer cannot completely ignore obvious, pertinent precedent on the ground of interpretive method.

Second, Yoo doesn't claim to subscribe to "free-form legal jurisprudence." He considers himself a textualist and an originalist--that is, someone who looks to the original meaning of the Constitution at the time of the founding--like his mentor and former boss, Clarence Thomas.

Third, it doesn't surprise me that a textualist and originalist of the Thomas school of interpretation would feel free to ignore contrary precedent. Thomas has frequently declared that prior caselaw--no matter how well settled--is not binding unless it comports with what he believes was the original meaning of the Constitution. That's a nice trick. Not as underhanded as Yoo's efforts (Thomas will actually take the time to explain why prior precedent contradicts his preferred interpretation of the Constitution). But it explains, I think, why Yoo could make the short leap to completely ignoring controlling cases that contradicted his position. In his world of interpretation (and, apparently, in Sebastian's), the don't really count.

[Sebastian]

"In response to Sebastian's "argument" (i.e., "It's the liberals' fault."), a couple points are worth mentioning."

No, I think lawyers on both sides do violence to the law because they think that is how the game is played--you get to be creative to force your way when you are afraid of trying to the democratic process even if the Constitution is silent and/or contradicts you.

What Yoo claims to be is belied by what he does. Someone who takes the text itself seriously couldn't come to the conclusions on Presidential power the he comes to. I don't agree with Yoo or his memo at all.

But that isn't the issue Brad brought before us. He suggested that Yoo departed from the outer bounds of permissible lawyering. The bounds of permissible lawyering have almost nothing to do with textualism, and they haven't in decades. He didn't. He used the tools for ignoring the text that have been well honed over the past 50 years. Furthermore he wasn't arguing before the Court, and thus had no duty to raise contrary precedent, especially if he didn't think it applied for whatever reason.

He is a complete worm of a man, his legal theories are repugnant and he exhibits no respect for the rule of law.

But he is a lawyer and now an academic. We've seen that in extreme cases none of those are outright disqualifications for either profession. If we want to aruge against tenure, or we want to try to bring the text into Constitutional analysis, we can have those discussions.

But pretending that Yoo is some sort of shocking abberration in the profession, is just silly. He perverted the law in a way we don't like, but he used well established tools that were created to ignore the Constitution in other contexts.

[Kate G]

Sebastian is wrong--tenure protects you against some kinds of arbitrary dismissal but if they can dismiss you for cause, well, they can dismiss you for cause. The question of whether this cause is sufficient is another question but it needs to be asked. We don't need to inquire into the history of tenure to determine that yes, of course, people have always lost tenure or been forced out for lots of reasons. The weapon is there, and we should use it if we think it necessary.

As for the failing to live up to the highest standards of his profession and to his role as an officer of the court I think that its absurd to say that Yoo didn't do any worse than any other lawyer, or any other criminal lawyer. He wasn't a criminal lawyer. His client *wasn't a criminal* and wasn't, theoretically, attempting to figure out how to *get around or break the law* with impunity but was actually *the US government.* If I were the client of a lawyer and my lawyer gave me false and unethical advice on any topic I'd sue the lawyer for *failure to provide me with adequate counsel* since by definition I am not an unethical person and *can't use* advice on how to break the law. Much less, might I add, can I use advice so incompetent as to expose me to legal danger. Yoo does'nt have any more protection against this charge than if he scribbled "kill the bastard" on a napkin and passed it over to his client. He doesn't get to say "that wasn't a legal brief submitted to a court." This, of course, gets back to the earlier thread where someone mentioned "performative utterances."

But be all that as it may I continue to stand out for social punishment. I advise anyone living in berkeley to familiarize themselves with Professor Yoo's picture and his habits and to simply drop bits of red paint wherever he walks, to put up little pictures of torture victims (post card size) on his pathway to and from class, to leave such pictures and drops of paint on his chair in the classroom (by all means it should be washable or even just a red post it note). People should also turn their backs on him when they see him--on the street, in shops, in elevators. Shunning is a time honored tradition. If it is carried out effectively, you can expect to see Yoo flee berkeley in very short order.

Kate G.

[Anderson]

Perhaps the post should link to or credit the author of the quotation?

[sm]

I continue to be amazed at the number of people who argue in effect that UC should do nothing. I'd respond with "Why not put the situation to the test?"
but I think the real issue is, it's this kind of thing that has led the US into its current situation. Dare you eat a peach?

[Charles]

Brad, since you find the argument dispositive, that should mean that you're planning to take practical steps to have John Yoo's tenure reviewed. Is that correct, or will this be held over for further debate?

[anne]

Barbara, thank you so much for the terrific exchange which tells me how careful lawyers, not philosophers, would construct the argument.

[jerry]

"Shunning is a time honored tradition."

Shunning is considered a form of abuse and aggression. It is highly passive aggressive. (It's part of wikipedia tradition that keeps shunning from being entered and then removed from the abuse page itself. But the shunning page makes it clear.) http://en.wikipedia.org/wiki/Shunning

I'd recommend facing him like a man, and make your charges clear: war crimes, incompetence, malfeasance. Get him disbarred and/or ask the tenure committee to revoke his membership.

[Joe Sommer]

I'm more with Kate G than Jerry.

Jerry starts with the right assumption; shunning is nasty stuff. But his conclusion is a non sequitur. Shunning is nasty, but so is imprisonment. Yoo deserves both. Imprisonment belongs only to the state, but shunning belongs to all of us. There are limits to tolerance: torture is one of them.

[non-lawyer]

In the course of history bad people have done bad, egregiously bad, things and gotten away with it. In looking back we wonder how is it that the rest of the society failed to take action. Now we know how these things happen. We are seeing it unfold in America today. History will be noting the time when America went to hell and who the players were and history will also be noting those who were in a position to act to correct the situation and did nothing. History will probably not note how scholarly and nuanced their positions (excuses) were however.

[Barbara]

anne,

Thanks. What I was trying to show is that contempt for the rule of law by those sworn to uphold it in pursuit of a political agenda has plagued us before. The only way to face down and defeat government lawlessness is to expose the reasoning that supports it to the light of day where people who know what they are talking about can show it for the utterly result oriented legal hash that it is. I honestly doubt if there is a clean way to unseat Yoo from his little ivory perch, but there sure are ways to hold a public debate that allows learned professors to state what they think of his exercise in a way that he will not soon forget.

As a result of the public outrage over Bator's "theory," the law was changed and the Reagan administration had to back down. It is crucially important to recognize that this is exactly why these memos were classified. Because, to put it bluntly, they sucked as exercises of legal reasoning. Their sole function is to serve as a shield for those who can claim to have relied on them. This is really the greater outrage, that no debate was permitted. So let's have one now.

[CharleyCarp]

One can no more defend Mr. Yoo by claiming that some judge, somewhere, was intellectually dishonest, then one can defend a accused shoplifter by pointing out that others have gotten away with it in the past.

If Sebastian is encountering lawyers who are intentionally mis-advising their clients, as part of an effort to allow those client to participate in criminal misconduct with impunity, maybe he should be talking to Bar Counsel. The bars of which I am a member would require me to do so.

If I thought Mr. Yoo was merely negligent, I wouldn't think either firing or substantial bar discipline appropriate. I don't think he was, though, and I don't think he's claiming to have been.

Not sure it matters much in this context, but it's maybe useful to keep in mind that his client was the United States, not some particular public employee(s).

[Kate G]

Jerry,
I totally agree with you that John Yoo should be prosecuted by the US government for his crimes against the state and humanity. Oh, what's that you say? He performed his illegal and inhumane and immoral acts at the behest of the US government? No legal action is likely to be taken against him? Well...that 's where I personally begin. I don't see shunning as "passive agressive" at all--shunning and the practical steps I advise ordinary citizens to take is a very serious form of public correction. Why do you think that criminals in high profile cases habitually hide their faces as they go into court? Because they are ashamed. Yoo has, up until now, gone to work in complete obscurity. Remove that obscurity and reveal to him that he is a hated and detested figure and he will fold, and quickly too. I'd like to see Boalt hall redeem itself by firing him and publicly ripping off any bits of scholarly paraphernalia that they can. But I'm not holding my breath. What matters to these guys is money and social position. None of us can affect the money but we can all affect the social position. And we should. No more cocktail weenies for Yoo! And more than that, no more anonymity for the man who helped hold the constitution down for a good raping.

Kate G.

[PSP]

Legal "ethics" have little to do with moral or philosophical ethics. Standards of Practice better describes the contents of the Code of Professional Responsibility. As a consequence, looking there for a basis to attack Yoo for immoral acts won't get you far.

On the other hand, the criminal law has evolved precisely to deal with such situations. Conspiracy is an agreement to commit an unlawful act. A conspirator need not agree to specific action committed in furtherance of the conspiracy, if he has agreed to the unlawful goal. The whole Bush administration national security apparatus is really a conspiracy to commit crimes against peace and crimes against humanity. Yoo could assert advice of counsel as an affirmative defense, and there are apparently cases supporting such an assertion.

Are felonies a basis for loss of tenure?

I’m actually surprised that the amnesty international group at the law school hasn’t already acted.

[Roger Bigod]

It looks like if he were to be fired, it would be for his being a bad man, not any competence to teach. If it came out that a surgeon at UCSF had had a role as torturer with Pinochet, there's no reason to fire him for incompetence. If he had done a bad job as a torturer, how does that matter? There is a rational reason to fire him for the sake of the school's reputation or because he presence made people feel uncomfortable. But tenure is supposed to protect against firing for those reasons. Bad precedent.

Shunning or ostracising is a different matter. A resolution of the faculty Senate sounds fine too.

[D Johnston]

I see via Talking Points Memo that UC Law Dean Edley has posted a statement about Yoo and the memos on the Law School website at http://www.law.berkeley.edu/news/2008/edley041008.html :

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo’s continuing employment at UC Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

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.

..etc

[jerry]

Thanks D Johnston for pointing out that memo.

"As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders."

Here's a part of Edley's memo I take exception with. I think Yoo's actions, taken while he was safe in an office in the United States and NOT responsible for the safety of troops or citizens as Rumsfeld and Bush were and easily able to resign and come back to his tenured position at Berkeley, were in fact MUCH WORSE morally than Rumsfeld and Bush.

[jerry]

"Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. 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 think Edley is calling on lawyers to move to have Yoo disbarred. Instructions on how to go about this have been posted on this thread and the older thread.

[Roger Bigod]

Firing Yoo is the feel-righteous thing to do. It would accomplish little, except to make Boalt look less like a parking place for the Federalist Society than it does. It won't help the prisoners in our Gulag, much less make it less likely that the situation will happen in the future.

I agree with the Dean's conclusions. However, the Deanspeak suggests that he's made a nice calculation of the effect on conservative and liberal donors.

But the Dean is a lion of courage compared with Reid and Pelosi. They have clear indications of war crimes, but will do nothing. How are they not complicit?