This Garment Stands for Its Bearer's Maturity of Mind, His Independence of Judgment, and His Direct Responsibility to His Conscience and His God...

Marty Lederman directs us to http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf and http://gulcfac.typepad.com/georgetown_university_law/files/march14.memo.part2.pdf.

And he notes:

The March 2003 Yoo Memo Emerges! (not an April Fool's Joke): The Torture Memo to Top All Torture Memos: Friday, March 13, 2003, Jay Bybee left his office as the Assistant Attorney General for the Office of Legal Counsel. The very next day -- a Saturday -- John Yoo, merely a Deputy AAG in the Office, issued his notorious memo to the Pentagon, on behalf of OLC, which effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which applied only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004.... Think about that: Either Jay Bybee -- who actually signed the August 2002 torture memo concerning the CIA -- did not know of this explosive memorandum, or it was so implausible that Bybee refused to issue it to the Pentagon. And as soon as he was quite literally out the door, John Yoo did not hesitate to issue the opinion on a weekend, presumably bypassing the head of the office (Acting AAG Ed Whelan) and the Attorney General. (I am assured that Ed had no involvement in this matter.)

As I've discussed previously -- see for instance here and here, and as Jane Mayer has reported in great detail, the March 14th Yoo memorandum, and the April 2, 2003 DOD Working Group Report that incorporated its outrageous arguments about justifications for ignoring statutory limits on interrogation, was secretly briefed to Geoffrey Miller before he was assigned to Iraq, and became the source of all the abuse that occurred there in 2003 and early 2004. (In late 2004, new OLC head Jack Goldsmith reviewed the March 2003 memo, was stunned by what he later called the "unusual lack of care and sobriety in [its] legal analysis" -- it "seemed more an exercise of sheer power than reasoned analysis" -- and immediately called the Pentagon to implore them not to rely upon it. Later, the next head of OLC, Dan Levin, wrote the Pentagon to confirm that they rescind any policies that had been based on the Yoo memo. See the whole story here.)...

My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude.

But I find myself frozen, unable to decide whether I should or should not write to William Drummond. I find myself frozen because I am confronted by the ghost of medieval scholar Ernst Kantorowicz. Ernst Kantorowicz--right-wing authoritarian anti-Democratic anti-communist German nationalist--was asked as a condition of his appointment to the University of California faculty to swear this oath:

Having taken the constitutional oath of the office required by the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.

He refused and protested:

Ernst Kantorowicz: There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

What should the Berkeley Division of the Senate of the University of California Do?

Comments

[Kate G.]

I don't know, brad, I don't think the cases are comperable. Yoo's briefs strike me as a different order of act than being a member even of a disfavored political party. Therefore its not clear that the analogy stands. Yoo's briefs on torture, especially the infamous observation that the president could, if he choose, legally "crush the testicles" of an innocent child if the thought that would advance an american agenda, is more like a form of reckless endangerment of the country and of its citizens and their morality. But I'd settle for a controlling legal and political authority crushing Mr. Yoo's testicles and then asking to have their case heard by a higher court. I don't think he has to be fired from Berkeley to make the point.

Kate G.

[bks]

Waterboard John Yoo to find out yes, or no: Is he a member of al-Qaeda?

--bks

[CN]

As soon as you use the words "under duress" and "violation of human sovereignty" you condemn John Yoo for the actions taken with respect to his work. The path is clear, Dr. DeLong.

[John Emerson]

Law is an unclean profession anyway, like economics. To demand minimally ethical behavior of one individual would be discriminatory and unfair, and the shock waves from the precedent would bring the entire profession crashing to the ground.

[jerry]

My understanding from some long ago discussion is that his tenure is potentially revocable if his decisions, writings, etc. do not come up to par thereby bringing his ability to teach under question.

Apparently, it is quite reasonable for lawyers to think this memo and similar indicate enormous malpractice -- and that doesn't indicate any need to question his morals or lack thereof.

If you wrote a memo, say, defending Free Trade, it would be quite reasonable for people to ask why you should have tenure. Similarly, a lawyer writing that it is okay to torture, contrary to all other rulings, raises the question of his ability to understand the law, how to interpret it, and how to teach it.

[jerry]

There is another profession that wears gowns and is in many ways similar to the judge, priest, and scholar except for intellectual honesty in which it is almost always the clear leader.

[MaryLou]

John Yoo's moral turpitude relates as much to his actions as to his ideas or legal opinions. He clearly violated his duty to his office and his superiors in the chain of command, in order to eliminate any possibility of their disapproving of his memo and blocking it. This was improper and unethical. Whether he did it out of craven opportunism in order to enhance his career (ultimately landing a gig at Berkeley - not bad!) or out of a mistaken deference to powerful men in the office of the vice president, his actions speak for themselves. Write the memo.

[jerry]

You could even throw off your shackles and examine if tenure, in the age of the Internet with free blogs, youtube, and thinktanks is actually needed in every department.

If Yoo's tenure were revoked, how would that effect Yoo? I assume Heritage would gain a "fine scholar." How would it effect other law professors? Probably not much. Tossing law professors out for incompetence is most likely more rare than tossing teachers out for failing to pass an exam.

Apart from the lawyers associated with the Innocence Project, why do law professors actually need tenure? Dershowitz once said (or at least he said it in the movie) that it wasn't tenure or schools funding his defenses, it was his taking up the Claus von Bülow's that paid for the pro bono work.

And if lawyers don't need tenure, why do professors in a business program? What are these professors saying or doing that requires tenure?

How many "non-reality based" departments are at Berkeley, teaching subjects that you cannot imagine are worthy of being called a science? Many feminists love to call out "evolutionary psychology" as bogus junk science. So clearly, you would love to see either a) evolutionary psychology departments lose credentials and tenure or b) feminists that teach an untestable theory of the patriarchy lose credentials and tenure. Dropping tenure will improve UC Berkeley.

In this case, John Yoo can help lead the way to a better University.

HTH.

[Leila Abu-Saba]

Nobody is asking John Yoo to swear fealty to or against any principle. We are asking for somebody, in this case the other gowned academics who are Yoo's colleagues at Cal, to call him to account for his morally indefensible writings which have cause human suffering and brought shame and dishonor upon our Republic.

Is there no society of the law that could also call him to account? The ABA or whomever?

I mean, pace Godwin's law, if you were at a university in Germany in the 1930s and your colleagues were getting tenure for writing the memos condoning the camps and Mengele's experiments, wouldn't you think you were morally responsible to either speak up, or leave the country to save your skin?

I am sorry to invoke that parallel but I am also sorry that our society has come to this point, where a lawyer can write an opinion such as Yoo has done, and then GET TENURE AT UC BERKELEY???

Makes me think all my crazed paranoid leftist America-hating friends were right after all.

[Leila Abu-Saba]

And I realize that a person who (for instance) believes that abortion is murder/genocide/destructive to the Republic could use the same argument to lobby for some hypothetical feminist studies or medical ethics professor to lose tenure. I just assume that the will of the collective wisdom of the Faculty would sort it all out.

Since it seems there will be no accounting before the law (international tribunal) for the perpetrators of torture in our government, at the very least I hope for some kind of public accounting at Cal for the moral turpitude of this professor in your midst.

[ottnott]

One remedy would be for the California Law Review to publish analyses of the Yoo memo.

U.C. faculty members (along with UC staffers and other state employees) are still required to sign an oath, which reads:
"STATE OATH OF ALLEGIANCE I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter."

[dennisS]

Say what!? Jerry, did you really compare free trade to torture? Please review your words. In the meantime I'll try and shake off this 5 o'clock cocktail and make sure I'm reading you accurately.

No, four re-reads later I still can't believe you said that so I blame the schgin for my addled schomprehension.

[jerry]

(just razzing our free-trading, prius-driving, latte-drinking, tenure-enjoying host....)

[jerry]

"Whether he did it out of craven opportunism in order to enhance his career (ultimately landing a gig at Berkeley - not bad!)"

Yoo has taught at Berkeley since 1993 and lists himself as a Professor (presumably with tenure) since 1999.

http://www.law.berkeley.edu/faculty/yooj/

So it's quite likely that his HAVING tenure is what enabled him to take this completely bullshit approach to the law. If he didn't have tenure he would have made sure that his work itself was outstanding and shone proudly on his analytical skills.

Again we see how tenure corrupts the system, precisely the opposite outcome for which it was originally intended.

[dogfacegeorge]

"Law is an unclean profession anyway . . . . To demand minimally ethical behavior of one individual would be discriminatory and unfair, and the shock waves from the precedent would bring the entire profession crashing to the ground."

And Chinese can't drive, and blondes are dumb, and jews are greedy, and on and on and on. Funny, JE, right?

[M. Carey]

It is a shame and a scandal that such a war criminal as John Yoo is allowed his freedon; even more that he is allowed to show his face in polite company. There should have been demonstrations and general ruckus all over Berkeley over this issue several years ago; It seems like these skills have been lost (except for some lonley tree-sitters).

[John Emerson]

No one is born a lawyer or an economist, dogface. People choose their professions. You can take your self-pity and whining..... and put it out of sight somewhere.

[Cal]

If we can remove a Governor, then we can remove him.

[dogfacegeorge]

JE: I'm not whining, and I certainly don't pity myself. I'm just saying that you are spewing prejudiced bile, that's all.

[John Emerson]

Well, your argument was worthless. Start over again.

[jerry]

dogfacegeorge, get a load of the hate speech at this site:
http://politicalhumor.about.com/od/lawyerjokes/Lawyer_Jokes_and_Legal_Humor.htm

Apart from university tenured feminists, I can't think of a more oppressed group than lawyers. Kudos to your bravely speaking truth to power.

(When did NOLO sell out and purge their site of lawyer jokes?)

[Colin Danby]

I'm with Kantorowicz and understand your worry. We don't want to be going after people based on their views. Period. People have a right to be wrong. The distinction that your post suggests is that Yoo was not just opining but recklessly facilitating, that he bears direct responsibility for torture on account of his position.

I dunno. What does the relevant part of your faculty code say?

[low-tech cyclist]

To the pain.

A day or two ago, I said this over at Cogitamus about the architects of the Iraq war:

"Even if there's no war crimes trial, no impeachment, no nothing, every decent person should ask Bush, Cheney, Rumsfeld, and all the rest of them at every opportunity, how they live with themselves in the knowledge of the deaths they've caused - how come the psychic pain of dealing with that reality hasn't forced them to throw themselves under a train or something."

I don't know whether Yoo's memo led to any deaths, but it surely led to horrors whose complete description - let alone actually suffering them - would surely lead to a near-permanent state of insomnia.

The solution to Yoo is for the rest of the UC-Berkeley faculty to ask him similar questions, every time he dares to show his face. Every encounter with an actual human being on the University campus should be punctuated by such questions, leaving no doubt as to the loathing the questioner has for Yoo.

In short, he should have only two states while on campus: either he will be alone, or he should be in the company of persons who are expressing their deep disgust and revulsion for everything he stands for.

The University is a haven of free speech, and should be defended as such a haven. Yoo should be on the receiving end of a constant stream of speech expressing his utter loathsomeness every time he sets foot outside his office.

[John Emerson]

I can't believe that university professional and ethical codes are no stricter than the law of the land, so that anything legal must also also ethical and professional. Yoo wasn't "expressing views", he was part of an working bureaucracy wrongfully imprisoning and torturing people.

Dr. K. presumably had self-serving reasons for wanting immunity against judgment. He wasn't a communist, but reportedly something just as bad. A sly move on his part, and very well expressed in the most highminded of language.

[dogfacegeorge]

I'm not saying lawyers are oppressed. I'm saying that any joke that depends upon stereotypically negative assumptions about some group offends.

[Emma Anne]

He certainly ought to be disbarred if the account above is true.

[John Emerson]

It's all true, George. Most lawyers understand. And prejudice against behavioral groups is different than prejudice against racial groups.

Anyway, my punchline was throwing economists in with the lawyers.

[dennisS]

Oh-kaaaaaay, but I don't agree tenure is the problem here. True, it protects unpopular ideas... by design. But, torture? That is more than unpopular. I hesitate to get into an argument about something I know so little about, but my view of tenure is that it's a rarely used institution and deserves some protection merely because as a way of organizing seniority it is only found in a few realms; Big picture, variety breeds strength and all that.

[jerry]

"People have a right to be wrong."

Of course they do, and I will defend Yoo to the death from anyone that wants to waterboard him for his craptacular views.

Yoo has no right to a tenured faculty position. If as other lawyers suggest and Emma Anne reminds us, Yoo can be disbarred for his malpractice, than there is no reason to allow a disbarred lawyer a tenured faculty position.

(Um, I'm a bit cowardly, and I've got two wonderful kids and so I probably would not defend Yoo to the death but I would feel bad about myself. I'm not sure I would even defend him to the pain.)

[Bernard Yomtov]

You are wrong to be frozen. Write the memo. Organize demonstrations, in fact.

Ask yourself this: is there anything a Berkeley faculty member could do to justify the revocation of his appointment? If so, what is it? And how do the consequences of that hypothetical act compare to the consequences of Yoo's memos?

This is not some rarefied intellectual dispute. Yoo's work had real and terrible consequences for actual people. To cast it as a question of intellectual freedom is absurd.

You could, barely, get away with that if he had written this stuff as an academic exercise. Academic exercises can be judged by academic standards. But he didn't. He wrote it when it mattered, and that calls for a different standard altogether.

[Fifi]

Brad,

I don't get the parallel. This is not an issue of academic freedom.

What John Yoo has to answer for are not thoughts but actions.

Those legal memos issued Office of Legal Counsel are not some abstract theories or anything falling under free speech or academic freedom. Those are enabling acts, designed by the executive to give cover for the use of torture by its subordinates. Without the memos - legal opinions, really - the would-be torturers have no legal cover. With the memos, they do hence they can act. They are positive enabling actions towards the commission of war crimes, with a clear line of authority and a clear sequence of consequences.

You can commit a crime as easily with a pen as with a gun. And for war crimes, crimes against peace and genocide, the rules of responsibility are extremely extensive and many defenses - acceptable in other circumstances - go out the window, like freedom of speech, legal immunity or deference to higher orders .

Berkeley has a problem on its hands in the person of John Yoo, not because of his moral turpitude but because he is quite possibly a war criminal.

You should advocate that the known facts regarding John Yoo's actions at the Office of Legal Counsel be gathered, that a faculty panel of peer legal scholars from Berkeley and other reputable institutions, well versed in the very particular legal strictures surrounding the prosecution of war crimes, crimes against peace and genocide, be convened, that said panel considers those facts, that said panel hears Professor Yoo if he wishes to appear and be hearded, and that, finally, said panel examine whether or not it is conceivable that Professor Yoo would be found guilty of war crimes if his actions at the Office of Legal Counsel were ever prosecuted by a court of the United States of America or any other venue from other countries that may choose to exercise its jurisdiction.

And, if the answer is yes, then Professor Yoo shall be excluded of the faculty on the grounds that, however unlikely on practical grounds, such prosecution and condemnation of a member for such a heinous crime would be an unacceptable and irreparable taint on the reputation of the faculty and of Berkeley as a whole, a risk that cannot be accepted.

I'm pretty sure Yoo would get the hell out of Berkeley on his own, well before any panel is gathered :)

[jerry]

"True, it protects unpopular ideas... by design"

I am curious if there have been any studies done that show how well tenure has been protecting unpopular ideas in the past, say, 20 years.

Does tenure guarantee funding? How efficient is it? Do we have an idea of the number of unpopular ideas it has protected? Is there a more effective way to protect those ideas? Say provide a guaranteed website with say 100Gb of hard disk and 10Gb bandwidth INSTEAD of tenure to every professor? Seems that could do a far better job of protecting unpopular ideas than tenure in 2008.

Tenure is the problem here since it's what keeps Yoo employed by the California tax payer, paid to defend torture.

(link for dfg: http://en.wikipedia.org/wiki/Protected_class)

[christofay]

If you decide to fight then you will be exceptional for being one of the few Americans who found his balls and decided to push back. That would be commendable.

Yoo's right to be wrong? But he supported the junta so he aided in implementing torture. Might is right, so he was right to be wrong.

Imagine the United States as Argentina, that's easy, and you're living next door to a immigrant death camp administrator who didn't actually press the start button but did see that the trains ran on time and that poison gas was in stock.

[jerry]

http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10179&id=1144
Registering a Complaint

All lawyers who practice in California must live up to ethical standards imposed by the California Supreme Court and the state legislature. As an arm of the California Supreme Court, the State Bar investigates and prosecutes complaints against lawyers.

Depending on the seriousness of the offense, a lawyer can be given a warning, put on probation, suspended from practicing law for a period of time, or disbarred - prohibited from practicing law in California.

The bar has limited authority to discipline lawyers for such behavior as rudeness or making a single honest mistake. It is limited by law to complaints about unethical behavior as defined in the Rules of Professional Conduct and/or the State Bar Act.

===
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?sCategoryPath=/Home/Attorney%20Resources/Rules%20%26%20Regulations/Rules%20of%20Professional%20Conduct
Rules of Professional Conduct

===
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Current_Rules.gif&sCategoryPath=/Home/Attorney%20Resources/Rules%20%26%20Regulations/Rules%20of%20Professional%20Conduct&sFileType=HTML&sCatHtmlPath=html/RPC_Current-Rules-3-110.html
Rules of Professional Conduct

Rule 3-110. Failing to Act Competently.

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

HTH

[christofay]

Of the people rounded up and sent to the detention camps, only a few innocent people so far have been tortured to death.

[jerry]

Brad's been waffling about this stuff since at least November 1, 2006.
http://delong.typepad.com/sdj/2006/10/why_oh_why_cant_21.html

It appears Yoo may be a member of the Pennsylvania Bar. The argument and instructions for disbarring him there through their bar can be found here:
http://legalethicsforum.typepad.com/blog/2008/01/david-lubans-th.html

Brad, I am pretty sure there are law students on campus that would like to see Yoo disciplined or disbarred for his activities in the White House. At least there were as of 2004:
http://www.talkleft.com/story/2005/12/25/756/14099

You may wish to seek these students out and help them file a complaint with the bar and the chancellor.

But come on, sh*t or get off the pot already.

[Mark Field]

As a Boalt graduate (1977), I feel a very personal interest in this. I have several comments, but my bottom line is yes, you should be doing everything you can to insist on Yoo's removal from the faculty. Now let me explain why.

To start with, a complaint to the CA Bar won't work. The reason is simple: Yoo is not a member of the CA Bar. I know; I checked because I intended to file a complaint myself. I don't know where he is licensed.

Now to the grounds for Yoo's removal. As I see it, there are two:

1. Yoo's memo demonstrates legal incompetence. While you're not a lawyer, there is no shortage of analysis on the internet (Balkinization and even The Volokh Conspiracy) which demonstrates the flagrant omissions and outright mis-statements of law which characterize Yoo's analysis. I'll give one simple example: in his entire memo, including his discussion of Presidential power, he failed even to mention the single most important Supreme Court opinion on this issue, namely Youngstown. That's malpractice which would get a first year associate fired. It's deliberate and -- the only possible conclusion -- criminal for a professor of constitutional law to leave it out.

2. Which segues into my other reason: as others have noted above, this memo wasn't an abstract discussion for a law review, it was intended to and did guide action within the Executive. The actions it guided were and are criminal. Worse than criminal, despicable, cruel and inhumane. Yoo's memo served no better purpose than the Nacht und Nebel decree.

Do it. Whatever I can do to help, I'll do.

[John Emerson]

Looking back at K.'s statement, it would have been authoritarian self-serving crap even coming from someone else. He probably didn't think that commoners should be able to testify in court against academics, either. That guy was a piece of work.

[david]

Kantorowicz is a scholar, Yoo is a hack. Maybe it's a problem with law schools, but Yoo's work, at least recently (I haven't reviewed the older stuff I presume exists) is awful, stupid, embarrassing. Tenure's tenure, and he's a blight on your university that you can't get rid of, but there must be some way to point out to the world that his work is a blight on the university.

And what Fifi said too -- I imagine in a well-functioning world Yoo would be up on charges, but that's probably not your role in the play, though a letter wouldn't hurt.

[sm]

Do you care about the reputation of UC Berkeley?

[bad Jim]

Yes, it is time to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude. His fellow faculty members at Berkeley ought at the least to consider whether there are grounds for removing him from their ranks.

Yoo's behavior was outrageous in the extreme, and avoiding the question of whether it merits his expulsion does the academic community no credit.

[plschwartz]

Brad
Since his appointment I was rather curious as to the circumstances in which he obtained a tenured position. I felt then and felt now that it was an academic travesty. However I disagree with trying to revoke his tenure. If for no other reason then it will make him the new John Birch.
I think that your community at Berkley would be well served by a public airing of the circumstances which led to the offer. Someone felt that he had the intellectual stature to be offered his tenured position. I do not feel that Departmental politics is covered by any notions of academic freedom. Not Yoo's political position but his intellectual vacuousness is what I think needs be the issue. From what I have read, his legal acumen is on a par with Clarence Thomas. Were I on the Berkley faculty (be still my heart)I would irate because his appointment debased Berkley's standards of academic excellence.
Second you should encourage your community to press him into a public defense of his views. I think that an open forum for his limitations and the public shame of such an encounter would be the worst punishment for Mr. Yoo.
Finally I would encourage his department to assign him non-required courses so that students could freely choose to boycott his classes

BTW good luck on your college choosing. We did the same just last year with my daughter. She did not want to live in Baltimore and so didn't interview John Hopkins.I regretted this as I felt that this school would have given her a more balanced viewpoint.

[plschwartz]

Brad
Since his appointment I was rather curious as to the circumstances in which he obtained a tenured position. I felt then and felt now that it was an academic travesty. However I disagree with trying to revoke his tenure. If for no other reason then it will make him the new John Birch.
I think that your community at Berkley would be well served by a public airing of the circumstances which led to the offer. Someone felt that he had the intellectual stature to be offered his tenured position. I do not feel that Departmental politics is covered by any notions of academic freedom. Not Yoo's political position but his intellectual vacuousness is what I think needs be the issue. From what I have read, his legal acumen is on a par with Clarence Thomas. Were I on the Berkley faculty (be still my heart)I would irate because his appointment debased Berkley's standards of academic excellence.
Second you should encourage your community to press him into a public defense of his views. I think that an open forum for his limitations and the public shame of such an encounter would be the worst punishment for Mr. Yoo.
Finally I would encourage his department to assign him non-required courses so that students could freely choose to boycott his classes

BTW good luck on your college choosing. We did the same just last year with my daughter. She did not want to live in Baltimore and so didn't interview John Hopkins.I regretted this as I felt that this school would have given her a more balanced viewpoint.

[Robert Jennings]

In the spirit of piling on:
1) Fifi's right
2) Yoo's actions were not defending an "idea" if John Yoo "academic" wants to write an article about why torture is actually "just fine and dandy" I will think he's not very smart but I wouldn't demand he lose tenure. If John Yoo "vacationing academic" tortured puppies I would want him prosecuted and if found guilty I'd like him to lose his job. If John Yoo "vacationing academic" holds the bucket of water for someone who is torturing a prisoner I think he is also guilty.

So, Brad, I enjoy your wit and your grasp of a hundred topics I know poorly (if at all) but explain to me why the University and freedom of speech have anything to do with "John Yoo - bucket holder"

then explain to me why my university (1978) should have him on the payroll ?

Thanks

[Steinn Sigurdsson]

Did Yoo's actions at the DOJ constitute an attack on the Constitution?
If so, he is in violation of his oath as UC faculty member, in that he did not defend or support the US Constitution.
He could of course argue that the oath is unconstitutional, illegal or unenforceable.
He might well succeed. Which might not be a bad thing.

[M. Carey]

For all I care he can keep his dam'd Tenure- As long as he keeps it in prison.

[Charles]

I agree that the path is clear.

Ultimately, our host does not have the power on his own of revocation of tenure and dismissal. Nor should he, since Yoo deserves the same due process he denied others. All Brad can do is call for review. By remaining silent, he helps to guarantee that the issue will never be reviewed. If Yoo has, as I believe, committed crimes against humanity, Brad makes himself an accomplice by silence.

By speaking out, he merely calls his colleagues to investigate the issue and reach their own judgments. Only then, if there is agreement after the facts have been given full examination. to proceed with sanctions.

The road is crystal clear.

[Jeremy]

Bernard Yomtov eloquently stated my position:

We're not talking about promulgating ideas here, but about promulgating ACTIONS.

Yoo didn't shout "Fire" in a theater; he lit torches and passed them out.

Again, we're not talking about simple crimes here - we're talking about war crimes. Crimes against humanity.

As such, Brad, I think you certainly have a moral duty. This man is TEACHING. Passing on the torch, if you will, to the next generation.

[BlueStatah]

All I can add to this discussion is, like so many others, to urge Brad to write the memo and get the process started. I have long been an admirer of the University of California, having started my career at one of its campuses (not Berkeley); my daughter now teaches on another campus (also not Berkeley). John Yoo's torture memo is a disgrace to the legal profession and a foul blot on the reputation of the institution that employs him. As its author and promoter, Yoo should be disbarred from the practice of law and dismissed from the faculty of a great university.

[wcw]

Keep Yoo, like Polisci kept Gregor.

Fire the lackwits who hired him -- every last one of them.

Actions have consequences.

[judith]

I would think that the UC Berkeley Law School Faculty might, at the very least, be expected to justify why Mr. Yoo continues to be on its faculty, given the text of these memos on torture and executive power. If the Faculty thinks his tenure is to be honored under any and all conditions because of academic freedom, they should be willing to say so. And to say in what way academic freedom is exemplified by providing legal advice to the government while not a faculty member at the university in question. As a long-time academic, I never grasped that my 'academic freedom' covered every word I ever spoke, every action I took, regardless of the circumstances and context and especially during a period when I was not actually employed by the University.

[Katherine]

I was thinking about this today. His views are repulsive, but it's not just his views. If he wanted to publish a 1000 part series of law review articles on how the president is above the law, it's legal for the president to order the torture of children, etc. etc., I would wonder what had possessed Berkeley to hire this guy and granted him tensure, but "academic freedom" would be a satisfactory explanation for why he kept his job.

Writing these things in a classified memo which is clearly written with the express purpose of empowering the president & his subordinates to illegally torture actual human beings is a completely different category. Refusing a loyalty oath and aiding & abetting in war crimes are not comparable. Unfreeze & write the letter.

[derek]

You're confusing "compulsory" and "mandatory". In the latter, a benefit may not be conferred until the applicant has first supplied an assurance; in the latter, the benefit is conferred without question, but the beneficiary can be punished for violating the terms of the benefit, to the extent of taking the benefit away again.

Kantorowicz was right to refuse to promise not to be a bad boy before being given his appointment. It's insulting and futile; you shouldn't be giving the appointment to someone you aren't ready to trust to be a good boy anyway. But Yoo wasn't asked to promise to be good, he was given the appointment and now he has dragged Berkeley's name through the mud, and should have his appointment revoked, the two cases are completely different. The latter is Crime, and the former was Pre-Crime.

[M. Carey]

If he was a rapist, would he have immunity due to his tenure? Of course not. But he is obviously a war criminal- does that leave him with immunity ? I hope not.

[M. Carey]

I an glad, that after all these years, this conversation is starting.

[Katherine]

There's a legal concept from free speech cases that might be useful here: "performative utterances." Words that function as illegal action, rather than as expression, are not protected under the First Amendment. "I will pay you 10,000 to kill my wife"--not protected. Lying under oath--not protected. Using your words to commit fraud--not protected. Making specific death threats against a specific person--not protected. Ordering a soldier to murder a civilian or torture a prisoner--not protected.

It's not a direct order. But writing an incompetent &/or bad faith legal analysis that purposefully green lights the executive branch to commit war crimes, and immunizes the perpetrators from prosecution, is a performative utterance.

The more I think about it, the easier a call this is.

[zeno2vonnegut]

Phillip Johnson. Ward Churchill. H. Bruce Franklin.

[Tomas]

I honestly was convinced that the story of John Yoo being made a professor in constitutional law AT BERKELEY was a aprils fools hoax. I would understand liberty university, but Berkeley...please.

But since it seems to be true, the only thing to do is to protest. This is too ridiculous for words. Having John Yoo teach constitutional law is like having Ken Ham teaching evolutionary biology, except maybe Mr. Ham would be a bit more intellectually dishonest.

The difference between this case and the McCarthyism of the 50s is that political views are irrelevant to the quality of study of, say, medieval history. The equvilant example would not be to fire a communist historian on the grounds that he is an communist, but to fire a firemarshal on the grounds that he is an arsonist.

[Robert the Red]

How about just spitting on him? That is, every student and faculty member spits on him (say, on his shoes), whenever possible? Maybe he'll get the hint.

[Kate G.]

Katherine's right although it might be hard to make the case. But I like "lowtechcyclist's" approach even more. I believe any study of human (and animal) communities will show that individuals can withstand torture *better than they can shunning* and what lowtechcylcist is calling for is ostracism with a bitter twist--constant reminder of Yoo of what he has done. If he lasts two weeks with every single person he meets, from store owners to waitresses to students and professors silently holding up pictures of tortured Iraqis I would be surprised. Of course, he might end up claiming workman's comp and a hostile work environment. But who cares.

Here's lowtechcylist from up above:

The solution to Yoo is for the rest of the UC-Berkeley faculty to ask him similar questions, every time he dares to show his face. Every encounter with an actual human being on the University campus should be punctuated by such questions, leaving no doubt as to the loathing the questioner has for Yoo.

In short, he should have only two states while on campus: either he will be alone, or he should be in the company of persons who are expressing their deep disgust and revulsion for everything he stands for.

The University is a haven of free speech, and should be defended as such a haven. Yoo should be on the receiving end of a constant stream of speech expressing his utter loathsomeness every time he sets foot outside his offi

[AndrewBW]

You should be canned, but not for moral turpitude. He should be canned because the quality of analysis in the brief indicates that he's incompetent to be a professor of law. Goldsmith makes that clear when he says the memo displayed an "unusual lack of care and sobriety in [its] legal analysis." One could easily write a pro-torture memo which displayed "care and sobriety in its legal analysis," -- it might be a stretch at times, but it could be done. But Yoo couldn't even accomplish that. Such bad writing is a clear indication that Yoo does not have the qualities necessary to be a good professor.

[kharris]

The field of law has its own set of ethical standards. Appealing to the bar for a lapse of ethics is unquestionably acceptable. If, as a consequence of Yoo loosing his license to practice law (a long shot, I admit), he also lost his university appointment, that would be rather different from the Kantorowicz case.

An appeal to Berkeley to boot him could be based on issues other than his ethics. If he has demonstrated "unusual lack of care and sobriety in legal analysis" then his fitness as a scholar is in question for reasons other than the views he holds. He ain't really a scholar.

[rea]

"Law is an unclean profession anyway, like economics. To demand minimally ethical behavior of one individual would be discriminatory and unfair"

John Emerson is wrong, of course, but he's wrong in a way that shows what ought to be done about Prof. Yoo.

Prof. Yoo has failed to conform his conduct to the ethical standards applicable to lawyers.

Prof. Yoo wrote, for example:

"Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President...."

That's simply not an argument that can be made rationally and in good faith. See Art. I, Sec. 8:

"The Congress shall have Power . . . To . . . make Rules concerning Captures on Land and Water . . . To make Rules for the Government and Regulation of the land and naval Forces . . ."

Whatever implicit powers the president may have as Commander-in-Chief of the armed forces, they can't trump an express grant of power to Congress.

Because no reasonably competent lawyer could make such an argument in good faith, but John Yoo is by all accounts a smart guy, we ought to infer that John Yoo did not make this argument in good faith.

Helping clients rationalize commitment of crimes by giving them bad faith legal advice is not somethign a lwyer is ethically permtited to do. The faculty senate ought to treat John Yoo exactly as if it had been discovered that he was representing the mafia and advising that murder was legal.

[Barbara]

It is appropriate to start a discussion around the issue, generally, of what to do with tenured professors who fall alarmingly below the standards associated with an academic calling. Asking how Yoo was hired (or promoted), through what process, and how his prior work was vetted seems justified. Moreover, if this memo was classified or not publicly available at the time of relevant employment decisions, the university (through its tenured professors) can properly ask whether he would have been hired or given him tenure, if the existence of this memo had been known, and what to do when it appears that the university has made decisions in the absence of relevant information that was in existence but unknowable at the time.

To further what Mark Field said, by way of example, the discussion in the memo of the concepts of specific and general intent, and specifically of how they would apply to crimes associated with torture, is so off the mark that if defense attorneys made the same arguments in cases brought *by* the DOJ the DOJ might seek sanctions on the basis of frivolity.

[jerry]

"I believe any study of human (and animal) communities will show that individuals can withstand torture *better than they can shunning"

Shunning is often considered a form of abuse and aggression in its own right so it's not surprising many people would prefer outright torture than passive aggressive shunning. Someone once said we are the social animal.

http://en.wikipedia.org/wiki/Shunning#Effects
http://en.wikipedia.org/wiki/Shunning#Civil_rights_implications

Harvey Silverglate is the chairman and co-founder of FIRE, the Foundation for Individual Rights in Education -- basically a first amendment and academic freedom defense organization for students and professors. (http://thefire.org) He has written two blog entries on disbarring the torture lawyers. Both refer to John Yoo by name.

http://thephoenix.com/thefreeforall/permalink,guid,4e871f5c-157e-45b7-afa3-64a21207922f.aspx
The Free For All - The Lawyers and the Torture Debate: Don't kill the lawyers, just disbar them!

http://thephoenix.com/TheFreeForAll/PermaLink,guid,1acf48e7-2f93-49ea-ae99-780c44e92fd3.aspx
The Free For All - Disbarring the Torture Lawyers Part II: Yes, it just might happen!

[Kelly]

I believe that "Marylou" and "KateG" are on the right track here.
The two issues that are noted by Brad are not comparable in my opinion.
The issue is not what Yoo believes are even espouses. The issue is; did he and his handlers deliberately subvert the Constitutional and regulatory checks and balances to at least temporarily provide cover to his bosses to conduct clearly unconstitutional and illegal torture?

[Hebisner]

It might be worth considering what the larger impact would be of any effort to use Yoo's employment as a way to hold him accountable for this obscene memo. One aspect to consider is that he will instantly become a martyr to that, if not large, vocal section of the media and political sphere that supports the goals and reasoning of the memo. Do we really want this elevated in any way? Aside from that, I would argue it's a dangerous precedent to punish him in this way. It stinks of political payback. People who assume the role of public servant in complicated times must be allowed to use their best judgement at the time, even if they lack anything like best judgement in the case of Yoo. And they have to be able to do it without fear of being tracked down later and whacked, even if they were terrible at it like Yoo was. He really is the ticking time bomb scenario of irresponsible government lawyers. Besides, it's not like his role was altogether hidden from the University when he was hired.

Any repurcussions should come from his profession. It seems to me that this memo business was not so much an affront to academia, as it was to the legal profession and the ethical responsibilties that the legal profession expects. Maybe the ABA, or some legal academic departmant like the University of Chicago should do something that lays out precisely why Yoo failed his profession, and failed in his role as a responsible government laywer. Then let him alone after that. Shine the light and then let people judge on their own about John Yoo.

[jerry]

I have a comment trapped in the "may be spam" filter. It links to two blog posts by Harvey Silverglate, cofounder and chairmen of FIRE, the Foundation for Individual Rights in Education, basically a group defending free speech and academic freedom for teachers, students, and professors.

In these two posts he discusses how to disbar the torture lawyers and mentions John Yoo explicitly.

http://thephoenix.com/TheFreeForAll/PermaLink,guid,4e871f5c-157e-45b7-afa3-64a21207922f.aspx
The Free For All - The Lawyers and the Torture Debate: Don't kill the lawyers, just disbar them!

http://thephoenix.com/TheFreeForAll/PermaLink,guid,1acf48e7-2f93-49ea-ae99-780c44e92fd3.aspx
The Free For All - Disbarring the Torture Lawyers Part II: Yes, it just might happen!

[Pudentilla]

He conspired to commit war crimes. I wouldn't want him teaching my kids and wouldn't want anyone to have the ability to refer to him as "my colleague." See Scott Horton and Glenn Greenwald today on this. It's not hard to do the analysis. It is hard to hold the administration accountable for its decisions - but the question of what is the right thing to do is distinctly different from the question, does one have the capacity to do the right thing.

[Anderson]

Write the memo. Defend your university.

If Yoo were teaching law at my alma mater, I would make it my personal mission in life to get him off the faculty.

(Since my alma mater is Ole Miss, I don't think this is a completely unlikely future possibility.)

[Stlinquirer]

The Kantorowicz quote closes with the following:

he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

Seems clear to be that Yoo has already given up his human dignity, his responsible sovereignty (the cossacks work for the czar, as it were, is clearly in evidence here), and likely his freedom of judgment (in writing said memo, he either had no freedom in the judgments he made or no judgment). Thus, tenure, designed to protect those things, has no value in his case. Letting him keep it, dilutes and sullies the value of it for those that would seek to maintain the virtues it is designed to protect.

[kelly]

I think low tech cyclist is spot on.

[l2p]

I'd be more curious how Yoo got tenure in the first place. Other than some sort of affirmative action for conservative scholars (and there are plenty of better scholars available), it always seemed indefensible.

Yoo facilitated torture by the US government in ways that cast his legal reasoning into doubt. His actions at a minimum appear to have been designed to avoid the internal safeguards of the Attorney General's Office. You should go forward.

[John Theibault]

I'm inclined to agree with plschwartz. Until or unless Yoo is charged with war crimes (a vain hope alas) there doesn't seem to be an easy case for dismissal on grounds of moral turpitude. And dismissal on grounds of obvious incompetence based on his writing in the memo runs afoul of tenure's protection of the freedom to produce unpopular opinion. Ward Churchill and H. Bruce Franklin were invoked -- and I can see some parallels between the argument that Churchill's tenure should be revoked because of how he misrepresented sources in his work and the argument that Yoo's tenure should be revoked e.g. because of his failure to mention Youngstown in regard to a separation of powers issue. But to make that argument you'd have to believe that Churchill's removal was justified. Yoo's incompetence in relation to his profession seems more akin to intelligent design (or even Biblical literalism on the age of the earth) advocates in biology departments. I don't know the consensus in the sciences, but I suspect that advocacy of intelligent design would be grounds for general shunning by the profession, but not grounds for dismissal from tenure. I am not a lawyer, so don't know how convincing Katherine's argument about "public utterances" is to them. It looks contrived to me.

Where plschwartz and Katherine agree is that Yoo should be removed from teaching required classes and repeatedly confronted by speech that identifies how loathesome his argument is. I agree. I do wonder if a case could be made that the Dean of Boalt Law School should be dismissed, if he or she was in office when the grant of tenure to Yoo was awarded. And if that might not be the better route for Brad to take to register his protest at what Yoo's presence does to Berkeley's reputation.

[Jeremy]

Addendum: in a front-page diary over at DailyKos, a teacher of AP US history writes about the shocking fact that 25% of his students, in their assignments, are parroting Yoo's talking points about unitary executive power and the President's inherent power as commander in chief.

This stuff doesn't exist in a vacuum. This is a cancer upon the body politic, and we will be paying the price for years to come.

[Katherine]

Performative utterances, not public utterances. And please be specific: which part is contrived? The idea that saying to a hitman verbally "I will pay you $1000 to kill this person" is an illegal action rather than protected expression? Or the idea that greenlighting & immunizing torture through a bad faith &/or incompetent classified legal memo is a comparable act? Or do you think I'm just lying about how differently I'd feel if he just advocated these ideas in law review articles & op-eds instead of secretly giving the military the license to torture people?

[jerry]

"I'd be more curious how Yoo got tenure in the first place."

My experience in the business school at UCB shows that tenure is given out not for any demonstrated need, and not for any demonstrated ability to teach or to publish, but as a visual indicator of penis size, and as a de rigueur part of the offer letter.

I say that because I saw several professors given tenure after only a year or two. And um, they were good professors, one was possibly even a great professor, but it just felt that after a year or two, how could they possibly be given tenure? It's mostly a nice scam on the taxpayer intended to form a good old boy's club. I think academic freedom is very important. I just don't think that for most professors in most disciplines that tenure is actually required for academic freedom. Now with the enormous job market we have now, the think tanks, the start ups, the Internet, YouTube, cheap 100Gb disk drives, DSL, and Linux.

If only we had a free market proponent who could help explain why tenure is overall a bad thing.... And who might use his privileged position to reform it.

[Howard Appel]

As a Boalt Alumnus (1991), I say write the letter and add my name to it. You have my full support. I am independently contacting the University and Boalt to let them know that I find it abhorrent that Yoo is teaching there and that so long as he continues to have a position at Berkeley, they will get no money from me. I also have a sister who is Boalt class of 1993 and she will not contribute either.

Howard Appel.

[Aaron]

He should be disbarred for violating his attorneys oath to uphold the constitution of the United States.
He should also be tried and convicted of war crimes and executed for his complicity thereto.

[piotr]

"Until or unless Yoo is charged with war crimes (a vain hope alas) there doesn't seem to be an easy case for dismissal on grounds of moral turpitude."

Well,moral turpitude is moral, not legal turpitude.

We live in degenerate times and it is hard to see American war criminals being convicted, except for the lowest ranks. It is not just the matter of some individuals being subjected to painful death, and others for years of suffering, although it is not a small matter, but national honor.

Suppose that Yoo's memo advocated the purchase of sex slaves for brothels serving our troops and such policy was actually enacted. As bad as sex slavery is, the fact that it would be done by US government in the name of all of us would make it radically worse than some mere pimping.

And if Yoo becomes a "martyr", good. Granddaughter of Benito Mussolini indeed became a hero to Italian Fascists for decades after her grandpa was hanged by partisans, and indubitably, Yoo would join some traveling circus.

But I seriously doubt if the impulsive deference to authority lessened to such a degree that Yoo would be actually fired. After all, he was not charged for crimes...

[Mark Field]

As a Boalt Alumnus (1991), I say write the letter and add my name to it. You have my full support. I am independently contacting the University and Boalt to let them know that I find it abhorrent that Yoo is teaching there and that so long as he continues to have a position at Berkeley, they will get no money from me. I also have a sister who is Boalt class of 1993 and she will not contribute either.

I wish this approach could be widely publicized. I cut off my contributions about a year and a half ago and wrote a letter explaining why. A more widespread "moneycott" might have some impact.

[Jim]

Perhaps a right wing billionaire will donate ten million to Boalt Hall to establish the Jay Bybee Professorship in Law (or the Clarence Thomas Chair, or the Janice Wright Chair or all three) and as part of the donation insist that Professor Yoo be appointed to fill it.

[Megan]

You could write a memo requesting that the Berkeley Division of the U.C. Senate provide a clear and unequivocal answer to the question of whether a violation of the sovereignty of academic thought is more important to Berkeley than the perpetuation of war crimes. I would imagine that writing the sentence "We'd rather host, support and implicitly endorse the architect of a torture regime than impinge on our employee's professional dignity." would be marvelously clarifying.

[BC]

Well, being a lefty, I think it is up to the faculty at UC Berkley law school to demonstrate to Yoo exactly what they think of his writings. They need to treat him as the pariah is, sort of the Ward Churchill of Bolt Hall. I mean they can call him the "defender of torture" whenever his name comes up. "I'd like to introduce you to John Yoo, the law professor who singlehandedly made Abu Ghraib and the worst offenses at Guantanamo possible." Whenever referenced, his name should be linked specifically to torture - John "Torture" Yoo. I think this should be included in all his classes - Professor John "Torture" Yoo should be the nameplate on his office and in all course listings. Ward Churchill was a tenured professor at University of Colorado, but they found a way to get rid of him. Maybe UC-Berkley can do the same to John "Torture" Yoo.

[mistah charley, ph.d]

My hope is that John "Torture" Yoo will receive a fair trial.

[John Theibault]

Katherine,

My apologies for the ambiguity.

I meant the second of the three interpretations you identify. IANAL, but it's not obvious to me how greenlighting torture through a bad faith memo is a "performative utterance" in the same way as verbally hiring a hitman or ordering a soldier to torture is. In some respects (e.g the number of people adversely affected), the former is worse; but in any case, it seems different. That's not to say that they may not be closely related in the law. And maybe it's just a semantic problem from my being a non-lawyer. Since I agree that Yoo should be vulnerable to prosecution for war crimes for facilitating torture, I certainly think that his memo had some effect on other people's actions. And if that's all "performative utterances" are, statements that facilitate a crime, then I probably just wasted everyone's time. I just didn't see the parallel between what Yoo did and the other examples of performative utterances that you provided.

[PeeDee]

I, too, couldn't initially believe that the Yoo of Berkeley Law School was the same Yoo that gave the administration enough of a legal fig-leaf to go ahead with Abu Ghraib, Guantanamo and much more. I'd just assumed they found some hack with the same name. I mean, this was Berkeley, right? I used to respect Berkeley.

Shame.

[Jessica]

Please at least try to have him fired. This is war crime pure and simple.
Many people here and around the world would feel better knowing that there are those of us who can see this.

[Chris Brown]

"My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude."

Having perfunctorily read through the Yoo memo, all 81 pages, I urge you to write to Drummond. However, I wouldn't cite "moral turpitude" I would cite Yoo's sophomorism.

[boalt student]

if this journal is "fair and balanced" it should also explore the other side of the balance, especially with what we are talking about -- his job as a professor. why do none of the 87 comments above mention that he receives some of the best teaching evaluations, from highly liberal law students? why do none of the 87 comments above mention that he spends hours, and hours advising students, who even write papers opposing his view? or why do none of the 87 comments above mention that he is boalt's 2nd-most cited professor, for academic pieces in international law? if you want to persuade the u.s. attorney to sue him for what he did in his job, go ahead. but if you want to pressure the university to re-examine the merits of his job at the university, FOCUS on what he does at the university.

if you cannot face the good points of the professor, you are no more biased and partisan as who you say you critique.

[wcw]

In order:
- teaching evaluations are for TAs
- hours are meaningless unless his students succeed
- citation stats may mislead, but this is an argument

So, the question is, for what is he cited? If it's for his controversial, torture-memo-like stances, that's no compliment. If it's for something else, let us know.

Given two of those three arguments evaporate for anyone with the first clue about acedemia, I bet dollars to donuts the third does as well for anyone who knows international law.

Who does? I'm open to being wrong, but the data don't encourage.

[jerry]

Our boalt student will make a good lawyer. Ignore the moral aspects. Ignore the ethical aspects. Ignore the war crime aspects. Ignore the attacks on the Constitution. Pound on the evaluations.

Why o why can't we just shoot all the lawyers?

[Nathan Myers]

As far as I can tell, the only justification for not seeking to eject him amounts to tribalism -- he's "one of us", and threats to any of "us" feel like threats to "us". The same flawed logic leads U.S. senators and congressmen to avoid censuring one another. It would seem the height of hypocrisy to call for impeachment of Cheney and Bush for war crimes, but to remain silent in this case.

He lost any claim to protections afforded academics when he committed his war crimes.

[Kate G.]

Nathan Myers is right but doesn't go far enough--Yoo "lost any claim to protections aforded academics?" Hell...Yoo lost "any claim to protections afforded *ordinary civilians*" when he stripped ordinary civilians of all rights in order to promote torture as an branch of US policy. As I believe Karl Rove famously said of Plame--"[he's] fair game."

Kate G.

[Jessica]

Boalt Student,
Having no other evidence to the contrary, I will accept your contention that John Yoo is a particularly good professor and quite open-minded in dealing with his students. That intrigues me. In a Greek drama kind of way.
However, it does not change the fact of his war crime. I am not asking Professor DeLong to speak out against Professor Yoo to protect the law students. I am asking him to do so because Professor Yoo's continued employment at the law school makes one of the flagships of our nation intellectual culture and Western civilization slightly complicit in his war crime. And because quietly accepting such behavior or putting collegiality or institutional harmony ahead of the desire to speak out is precisely how good people allow bad to take hold. And because a nice loud protest about this would give people around the world some hope.

[not_scottbot]

'My hope is that John "Torture" Yoo will receive a fair trial.'

At a secret U.S. prison of your choosing.

In front of people who have all the evidence they already need to convict, without allowing Yoo any chance to inspect that evidence, much less challenge it.

After his having experienced, over years, all the techniques of non-torture that the President is authorized to inflict on anyone, at any time, for any reason.

And for those who think this is unfair or un-American? Obviously, your support of Yoo's rights makes you a suspect. Wiretapping for all of you, with prompt placement on various no-fly and watch lists, as a reminder what the costs are to contradict the policies which Yoo has so vigorously supported and brought into being.

But I remain of two minds whether Yoo should lose tenure merely because he advocated war crimes - that seems going too far in violating his rights to free inquiry in an academic setting.

[LACJ]

Please send that letter. Nobody wants Yoo to swear loyalty to anything, and anyway his oath isn't worth a plugged nickel.

This is not discrimination of certain ideas as much as it is the purging of the incompetent and venial. Please send the letter.

[jerry]

I am curious to know whether there is any organized movement of Boalt Students to boycott Yoo's classes. And whether there are any other groups of students offering teach-ins to the Boalt Students explaining what Yoo has done.

For all the nonsense activism in front of Sproul and Sather Gates, getting Boalt Students, lawyer wanna bes, to understand Yoo's actions and ask them to boycott his classes would actually be a good form of student activism.

A good goal would be to make sure that each semester one course of Yoo's had no students in it. Students should be able to rearrange their schedules to make that easy and atttainable without harming their graduation date.

[Andrew J. Lazarus]

Brad, Professor Yoo should stay on the UC faculty up until the very moment he is sent to the Hague (preferably by some form of extraordinary rendition).

Unfortunately the Euroweenies lack the death penalty, which would be appropriate for such a war criminal.

[Andrew J. Lazarus]

Re-reading the thread, I concur that disbarment is the correct first step. After that, it would make sense to revoke his tenure.

[Hugh]

All that is necessary for the triumph of evil is for good men to do nothing" - Dr. Edmund Burke

Don't be frozen. Do something.

[Maurice Lanselle]

First, I'd like to thank the blogmaster [his contract moderators in India, or both] for eliminating a comment I believe I posted several hours ago and shouldn't have: it did nothing to contribute to the discussion.

Second, I'd like to wonder whether
"My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo's appointment to the University of California faculty should be revoked for moral turpitude."
is the appropriate attitude.
One might write to the "Chair of the Berkeley Division of the University of California Senate" with a more respectful tone, only wondering whether this new source of doubt of another professor's integrity and competence has come to his intention, and what he might intend to do about it.

Third, I'd like to wonder how much less Pr. DeLong feels he is worth as a scholar, educator, economist, and so on, for having been employed by the same employer as Yoo, if the employer doesn't take action. Perhaps DeLong (and the rest of the faculty) should ask for compensation. How much is it costing Cal, and its faculty as individual service-providers, to keep Yoo? Compared to taking statins when one doesn't believe additional reminders to worry are creating as much risk via stress as they are relieving otherwise, is it harder to quantify and abstract in this case?

Fourth, I'd like to add a P.S. for Andrew J. Lazarus : the U.S.A. does not recognize the authority of the Hague over American citizens. It has even (I believe, but cannot provide specifics right now) added "non-extradition of war criminal suspects" to trade contracts with South American countries.

[Oliver Edwards]

Yoo abdicated his "sovereignty of judgement" when he fabricated a legalistic justification for crimes. In this case, we must consider silence to be assent. Please, restore my faith in your institution and deliver this man some of the the public shame he so richly deserves.

[PeeDee]

It may clarify your thinking to read the interview of Philippe Sands, author of the recent Vanity Fair piece "The Green Light" (http://www.democracynow.org/2008/4/3/the_green_light_attorney_philippe_sands)

"When a lawyer invokes an example of national security, as Jim Haynes did, to override a clear obligation under the Geneva Conventions not to torture someone, not to abuse someone, they have taken themselves, on the principle established by the US military in Altstoetter, into the territory of criminality. And the arguments made by Mr. Altstoetter and Mr. Haynes, in a sense invoking national security to justify the unjustifiable, are analogous."

"I think what it does do, at the very least, is expose some of these individuals, including the lawyers who form part of what I’ve called the torture team, to the possibility of investigation, if they set foot—well, they’re going to be investigated irrespective of whether or not they set foot outside of the United States—the possibility of the tap on the shoulder, what happened to Senator Pinochet when he was in London, I think becomes a real risk in relation to some of the individuals at the top."

[arles]

I think the gowns are the problem. Priests wear gowns and what did they do with that "entitle[ment]"? They pawed children. Judges wear gowns and the Economist reported last year in "Judges behaving badly", that judicial corruption is rampant. Academics who increasingly squirrel for corporate consulting gigs of any flavor are bad enough, but torture? Get rid of the skirts I say.

And on the question of tenure you can look at it another way. Folks like Yoo and Phillip Johnson, father of intelligent design, can actually help Berkeley's street cred. Quite a few people on the east coast -- even after all these years -- think its all free-love and anarchy and free-speech cafe. Drop these names and you stop them in their tracks -- Oh! I didn't know, I thought you were all just a bunch of socialists, wow.... ;)

[jerry]

Hey, listening to FreshAir today, Geoffrey Nunberg, "rock star linguist" has moved from Stanford to Berkeley!

Go Bears!

[Joe]

"Impeach George W. Bush! Impeach him now!"

But, gee, maybe we shouldn't be so hard on his enablers- or at least not on the ones with whom we share these Hallowed Halls of Ivy.

Is that it?

[As You Know Bob]

Write the memo.

Whether or not Yoo is removed, America needs to hear a debate about the "ideas" he put forward. At the very least, Yoo needs to stand up in public and explain to the Law Faculty that the rule of law in America is a fiction.

[CharleyCarp]

Another vote for taking action.

Prof. Yoo willfully mistated the law -- with respect to both Quirin (see n. 13*) and Youngstown,** at the least -- for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He's a mob lawyer, not fit to be considered scholar or gentleman.

* A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.

** Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he's obligated to say so and explain coherently when advising a client as to what the law provides.

[Steve Smith]

Your hesitation based on the case of Ernst Kantorowic is not germane. He was certainly right in his objection to the attempted coercion by the board of Regents - this is the essence of academic freedom, to not be threatened by the administrative/political hierarchy.

What you have suggested, on the other hand, is also in keeping with the valid role of a community of scholars: they should seek to govern themselves and uphold the honor befitting their historically respected (as Ernst Kantorowic so eloquently described it) role in society.

I think it's your duty to raise the issue. The faculty Senate is the proper forum to consider it, for the sake of the whole community. Whether others will seek to pursue these matters in other venues has no bearing on your obligation to your own reputation, and that of the institution to which you have lent it.

[merrilee]

US v Alstoetter - he is a c-o-l-l-a-b-o-r-a-t-o-r

the current Dean's did not grant him tenure, the previous dean did

[Paul Camp]

The California bar should disbar him for flagrant violation of ethical standards by misrepresenting to or failing to advise his clients of relevant supreme court decisions.

The Berkeley can decide what is the appropriate action to take with disbarred legal faculty.

[engels]

[[There is another profession that wears gowns and is in many ways similar to the judge, priest, and scholar except for intellectual honesty in which it is almost always the clear leader.]]

Brilliant.

Boalt Student:

As a Boalt alumnus, I appreciate your desire to have good professors who the students like. And I am sure that if Dr. Mengele had taught, his students might have thought he was an excellent professor also. However, that is not the only issue. As numerous other posters have noted, he violated not only the professional canons of our profession, but he knowingly and willingly mischaracterized the law and abused the law, in order to justify actions which (i) not only violated the oath he took upon going to work at the DOJ, to uphold and defend the Constitution of the United States, against all enemies foreign and domestic, (ii) but also provided the legal underpinning for others to take actions which he knew, or should have known by virtue of his position and his training, were violative of the US Constitution, our laws, the Geneva Conventions and numerous treaties to which we are party.

Putting aside the analysis of American constitutional and case law, which Professor Yoo pretty much did himself, I would point you to US v Alstoetter, which I highly recommend. In Alstoetter, the Tribunal (constituted by the Americans in the American Section of West Berlin in 1948, directly addressed a fundamental issue raised by Professor Yoo in the Torture Memo – If the President takes some action or authorizes the performance of an action, can that action ever be criminal. Professor Yoo determined that the President could do essentially whatever he wanted to do so long as he dressed it up in the guise of “National Security.” That is wrong.

The Tribunal’s discussion in Alstoetter is enlightening:
[We pass now from the forgoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutor, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning this first principle, Dr. Jahrreiss said:
“If now in the European meaning one asks about legal restrictions, and first of all one asks about restrictions of the German law, one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.”

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “Crown Jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on Constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law, As stated by Professor Jahrreiss:

“To express it differently, whether the law has been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.”

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

“On the other hand, certainly there were local restrictions for Hitler under international law. He was bound by international law. Therefore, he could commit acts violating international law. Therefore, he could issue orders violating international law to the Germans.”

The conclusion to be drawn from the evidence, presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations. (emphasis added)]

Also:

The Defendant Schlegelberger
The defendant Schlegelberger was born on 23 October 1875 in Koenigsberg. He received the degree of Doctor of Law at the University of Leipzig in 1899 and passed the higher State law examination in 1901. He is the author of several law books. His first employment was as an assistant judge at the Local Court in Koenigsberg. In 1904 he became judge at the District Court at Lyck. In 1908 he was appointed judge of the Local Court in Berlin and in the fall of the same year was appointed as an assistant judge of the Berlin Court of Appeals. He was then appointed Councillor of the Berlin Court of Appeals in 1914, where he worked until 1918. During the first World War, on 1 April 1918 he became an assistant to the Reich Board of Justice. On 1 October 1918 he was appointed Privy Government Councillor and department chief. In 1927 he was appointed Ministerial Director in the Reich Ministry of Justice. On 10 October 1931 he was appointed Secretary of State in the Reich Ministry of Justice under Ministe of Justice Guertner, which position he held until Guertner’s death. Upon Guertner’s death on 29 January 1941 Schlegelberger was put in charge of the Reich Ministry of Justice as Administrative Secretary of State. When Thierack became the new Minister of Justice on 20 August 1942, Schlegelberger resigned from the Ministry.
In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger testified that he made no use of the Party, that he never attended a Party meeting, that none of his family belonged to the Party, and that Party attitudes often rendered his position difficult. However, upon his retirement as Acting Minister of Justice on 20 August 1942, Schlegelberger received a letter of appreciation from Hitler together with a gift of 100,00 RM.
Later, in 1944, Hitler gave Schlegelberger the special privilege to use the 100,000 RM to purchase a farm, which under the rule then prevailing could have been purchased only be an expert agriculturist. Schlegelberger states that the 100,000 RM were on deposit in a Berlin German bank to his account when the collapse came. Thus it is shown that Hitler and Schlegelberger were not too objectionable to each other. These transactions also show that Hitler was at least attempting to reward Schlegelberger for good and fathful service rendered, in the performance of some of which Schlegelberger committed both war crimes and crimes against humanity as charged in the indiectment.
We have already adverted to his speech at the University of Rosteck on 10 March 1936, on the subject “A Nation Beholds Its Rightful Law”. In this speech Schlegelberger declared:
“In the sphere of criminal law the road to a creation of justice in harmony with the moral concepts of the New Reich has been opened up by a new wording of Section 2 of the Criminal Code, whereby a person is also (to) be punished even if his deed is not punishable according to the law, but if he deserves punishment in accordance with the basic concepts of criminal law and the sound instincts of the people. This new definition became necessary because of the rigidity of the norm in force hitherto.”

As amended, Section 2 remained in effect until repealed by Law No. 11 of the Allied Control Council. The term “the sound people’s sentiment” as used in amended Section 2 has been the subject of much discussion and difference of view as to both its proper translation and interpretation. We regard the statute as furnishing no objective standards “by which the people’s sound sentiment may be measured”. In application and in fact this expression became the “healthy instincts” of Hitler and his co-conspirators.

What has been said with regard to the amendment to Section 2 of the Criminal Code is equally true of the amendment of Section 170a of the Code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides:

“If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of the penal law.”

This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries. German criminal law was therefor