The Torture Memo and Academic Freedom

I'm going to try to move the discussion of Professor John Yoo's Torture Memo over here: The Torture Memo http://delong.typepad.com/the_torture_memo/.

Anybody who wants posting privileges at "The Torture Memo," drop me a line at brad.delong@gmail.com...

---

So I sent off my letter (http://www.j-bradford-delong.net/2008_pdf/20080506_yoo.pdf) to William Drummond, in his capacity as Chair of the Berkeley Division of the Academic Senate of the University of California.

Any Berkeley community members who want to sign on, drop me a note at brad.delong@gmail.com, and I'll put you on the list...

---

UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the “Torture Memo” of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration’s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo’s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo’s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the “Torture Memo” I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

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...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... 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."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a “get out of jail free” card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong

Professor of Economics

UPDATE: William Drummond answers:

Dear Brad,

Although you and I disagree, our talk this morning was a good one. Thank you for your thoughtful memo. Prof. Yoo has agreed to testify before a Senate committee. More details of what he did while on government service are likely to surface at that time.

The actions you urge on the Senate are therefore premature. Nevertheless, nothing I've read in the bylaws that convinces me the Senate has any standing in the matter.

If there's a showing of any illegal act or actionable breach of professional ethics, the campus administration would have the responsibility of filing a complaint.

Creating the panel you recommend to examine Prof. Yoo's conduct would be defamatory on the face of it. Besides that, there's the practical problem of finding committee members with the expertise you outline.

Yours,

Bill

I am left with a puzzle: I have little clue as to what counts as an "actionable breach of professional ethics" or as serious scholarly misconduct. Hence I want a fact-finding committee. But it seems that the creation of a committee to find facts is ipso facto defamatory, and so cannot be contemplated unless there is already "showing of any illegal act or actionable breach of professional ethics." But if there is already a "showing of any illegal act or actionable breach of professional ethics" then there is no need for a fact-finding committee...

Comments

[Anderson]

Well, God bless you, Professor DeLong. An excellent letter. Thanks for sharing it with us.

I am pleased to note that you include Yoo's professional example to his students as one of the considerations favoring an inquiry. As a practicing lawyer, I would like to think that a law school would have no trouble figuring out that the quality of the counsel offered in Yoo's memos was unacceptable.

[Emma Anne]

Thank you. Nicely said.

[Mark Field]

Very well done.

If you get the chance, you might also want to note that Dean Edley's formal position is "William H. Orrick Distinguished Chair in Legal Ethics and the Legal Profession". See http://legalethicsforum.typepad.com/blog/2007/12/berkeleys-dean.html

[Jasper Emmering]

Can't Berkely send Yoo on a sabbatical, say, at the Hague Acadamy of International Law?

"Every summer, the Academy invites well known scholars from all over the world to deliver lectures on international law and international private law. These summer courses attract about 600 international law graduates planning a career in the world of diplomacy or international and humanitarian law. Students from developing countries who cannot afford the fees are eligible for a scholarship. Each year, the Academy also provides a course in a developing country, known as the "External Programme." The Academy’s exam is highly regarded the world over."

It's conveniently located in the Carnegie Peace Palace, less than two miles from the holding cells of the International Criminal Court at Scheveningen jail.

[James Wimberley]

Great stuff.
One very minor niggle: Elizabethans may have used euphemisms for torture colloquially, but for real business - royal prerogative warrants sent to the Tower of London for the interrogation of suspected traitors - they had at least the honesty to use the actual word. Citation here: http://www.samefacts.com/archives/torture_/2007/06/royal_torture.php

[Economics of Contempt]

Well put.

I'd put more emphasis on the distinction between scholarly and non-scholarly work. An OLC memo is not scholarly work, and does not deserve the wide protections of academic freedom. Yoo was not advocating a position in the OLC memos, he was stating the law. He deliberately misstated the law outside of academia. Universities cannot be in the business of extending the protections of academic freedom retroactively to a willful breach of professional legal ethics. That is a distortion of "academic freedom" if I've ever seen one.

[BlueStatah]

Bravo. Bravo. Bravo. You have honored your university and our (that is, your and my) profession. We will now find out whether the University of California, Berkeley is still the great university it has always been.

[matt]

Amen!

[non-lawyer]

Brad, you have distinguished yourself for the world to see. We badly need people like you in this country at this time, people with moral fiber and the courage to act on their convictions. Well done!

[RW]

WRT Update

William Drummond's logic is clearly incorrect on its face. However if one reads his point in sociopolitical terms then there may be something to it; i.e., those who consider John Yoo an academic colleague based upon the fact of his employment as opposed to those who belief this fact is trivial or even accidental and, regardless, easily trumped by the possibility he may be unfit for the post he holds and even the company he has the right to demand as his to keep.

[Anderson]

"But it seems that the creation of a committee to find facts is ipso facto defamatory, and so cannot be contemplated unless there is already 'showing of any illegal act or actionable breach of professional ethics.'"

Means one of two things: (1) "we don't give a flying Wallenda," or (2) "our lawyers have us very scared of even seeming to give a flying Wallenda."

Not being familiar with California defamation law, I won't opine; but this *is* the same state that includes Hollywood, right?

[walkingtheline]

Yoo has championed and helped implement policies endowing the government with the right to arbitrarily detain and torture Berkeley students. Surely there are policies on staff treatment of students that are applicable here.

[save_the_rustbelt]

Let's see, hypothetically:

Professor DeLong has frequently advocated closer economic and political relationships with China, a repressive totalitarian state, and should be removed from the faculty.

Professor XX, a law professor, has intentionally made specious arguments in a petition to stop the execution of a inmate, and should be removed from the faculty.

Professor YY, a women's study professor, regularly states that most men are rapists, and that all sex, including between husband and wife, amounts to rape, so YY should be removed from the faculty.

Professor ZZ is a Republican and supports Ronald Reagan, and therefore is not an acceptable colleague, and should be removed from the faculty.

Once this starts, where does it end?

If anyone has reason to believe that Yoo committed a crime, they should address a letter to the appropriate U.S. Attorney.

(I do not support either torture or the Bush administration.)

[save_the_rustbelt]

Let's see, hypothetically:

Professor DeLong has frequently advocated closer economic and political relationships with China, a repressive totalitarian state, and should be removed from the faculty.

Professor XX, a law professor, has intentionally made specious arguments in a petition to stop the execution of a inmate, and should be removed from the faculty.

Professor YY, a women's study professor, regularly states that most men are rapists, and that all sex, including between husband and wife, amounts to rape, so YY should be removed from the faculty.

Professor ZZ is a Republican and supports Ronald Reagan, and therefore is not an acceptable colleague, and should be removed from the faculty.

Once this starts, where does it end?

If anyone has reason to believe that Yoo committed a crime, they should address a letter to the appropriate U.S. Attorney.

(I do not support either torture or the Bush administration.)

[Mark Field]

Drummond's response is all too typical. Now you understand the frustration those of us feel who've been pushing the law professors to act. You, at least, have the distinction of having spoken up, and for that we are grateful and you should be proud.

[Gwailo]

Now we know where William Drummond will spend eternity -- "sanza 'nfamia e sanza lodo."

[MobiusKlein]

rustbelt's argument does not work, because Prof DeLong had and also has no authority over China, or the US's relations with China.

[foo]

Yoo is chinese/korean and blindly follow-the-leader lack of independent thought is part and parcel of that culture. This is true even in Japan. The square peg is hammered down
the round hole. The main question arises: should a non-western person (even if raised here with no traditon of western thought) be allowed to teach a cornerstore of western thought at berkeley ? this is a serious philosophical question.

[Bernard Yomtov]

Brad,

Good for you.

Drummond's response is silly and circular, as you correctly point out.

[mistah charley, ph.d.]

Congratulations on your excellent letter. Professor Drummond's view, that merely constituting a "fact finding" panel at UC Berkeley is necessarily defamatory, is remarkable - I would suggest, if I were having a snarky conversation with someone about it, that he already has some suspicion (from having read your letter, for example) what kind of facts such a panel would find.

My ultimate hope is that John "Torture" Yoo, among others, will eventually receive a fair trial in a criminal court under U.S. or international law - unlikely, I realize, but not completely impossible.

May the Creative Forces of the Universe stand beside us, and guide us, through the Night with the Light from Above (metaphorically speaking).

[Bruce Baugh]

Good work, Brad - that strikes me as a model of honest advocacy. I'm sorry the response sucks so much, but thank you for doing your part, very very much.

[Economics of Contempt]

Professor DeLong,

You are 100% correct. To suggest that forming a committee of scholars to investigate Professor Yoo's conduct is "defamatory" in the legal sense is patently absurd. Yoo was a public official, so a defamatory statement not only has to be false, but must also be made with actual malice (and state law can't lower that threshold). Neither element is even in the ballpark of being satisfied here. That's simply a nonsensical position, and defeats the entire purpose of having a fact-finding committee. Also, to suggest that they don't have enough information to initiate an investigation is ridiculous. The simple fact that Yoo wrote the OLC memos should be more than enough to initiate an investigation. Criminal charges are filed with less evidence (hell, criminal convictions are often based on less evidence). You're not asking that Yoo be thrown into the Hague, or even that he be found civilly liable; you're asking that a committee be formed to discuss whether he should lose his job. Professor Drummond's response does not inspire much confidence in the Berkeley Academic Senate.

[Katherine]

Thanks.

[robert halford]

As a Cal alumnus and a practicing lawyer, I want to thank you, Brad, for taking this courageous and appropriate stand. It is heartening to learn that not everyone on the campus has sought refuge in the comforting -- but clearly false -- belief that they are prevented by some kind of legal or traditional authority from taking action to at least investigate Yoo's conduct. In my view, Dean Edley has severely compromised himself by his dogmatic refusal to admit that this is a problem even worth investigating. I also believe that Boalt Hall is taking yet another hit to its (sadly, already increasingly wobbly) reputation due to its current role as the protector/facilitator of a key architect of one of the saddest crimes in the history of American law.

[robert halford]

As a Cal alumnus and a practicing lawyer, I want to thank you, Brad, for taking this courageous and appropriate stand. It is heartening to learn that not everyone on the campus has sought refuge in the comforting -- but clearly false -- belief that they are prevented by some kind of legal or traditional authority from taking action to at least investigate Yoo's conduct. In my view, Dean Edley has severely compromised himself by his dogmatic refusal to admit that this is a problem even worth investigating. I also believe that Boalt Hall is taking yet another hit to its (sadly, already increasingly wobbly) reputation due to its current role as the protector/facilitator of a key architect of one of the saddest crimes in the history of American law.

[christofay]

Yeah, here, here, for Brad Delong

You joined the fight

You earned your pay today

[DeLongJohn]

Allow me to point out that Professor Kantorowicz's position gives us absolutely no guidance or basis for the removal of bad-acting gown-wearers. And yet surely there are situations that call for the removal of priests and judges from their professional roles. Is there no such for scholars?

[thorstein veblen]

Where is the Berkeley undergraduate population on this? They never would have stood for this back in the 1970s... You could do so much with a torture protest... raise a guillotine outside of the law school; do waterboarding displays on the front lawn, set up a torture rack, all dressed in Abu Ghraib torture garb... get a bull horn & sit outside John yoo's office "John Yoo, we want to question you", bull-whip in hand... How does this stuff not sound like fun to an undergraduate? I mean, christ, it's 2008, not 1608. How can you advocate torture as public policy and not even have a "fact-finding" hearing called?

[Barry Ross]

Well said and thank you.

[Porlock Hussein Junior]

Getting down to the argumentative details -- it goes without saying that this petition is excellent and badly needed -- I see that Drummond invokes how hard it is to find a bunch of people with these difficult forms of expertise that the petitioner has disclaimed.

So: if, just hypothetically, someone had committed some great offense of the sort alleged, the University would be incapable of defending its integrity against such misconduct, because it couldn't scare up enough experts to make determination.

Then why not just shut the effing thing down? For good. Though I admire thorstein veblen's suggestion and would like to support it wholeheartedly, Drummond has me wonderiung if it's just too moderate. Better, if Drummond argues truly, which as an alumnus I refuse to believe, to have a Cromwell:

"You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!"

[Sam Young, Cal '82]

Thank you, Brad.

[redacted54]

I've been waiting to hear from Berkeley, the storied school of my imagination, and in the clearest words and surest sense this is it. Thank you.

[Roger Bigod]

Very meet, right, and our bounden duty.

[David desJardins]

Words cannot express how absurd that reply is. It's defamatory to ask the questions?? I am embarrassed to be a Berkeley alumnus.

I hope the community will start organizing protests around this subject. Shouldn't there be people picketing Yoo's office every day, and all of his classes? And, judging from this response, Drummond's office as well?

[anne]

Nice.

[LizardBreath]

Joining in the chorus to say that your letter was great, and the response was nonsense.

[rea]

William Drummond does not seem to understand the meaning of the word, "defamatory."

[Cosma]

On the one hand, having Yoo as a professor at Cal has made me decidedly less happy about being an alumnus, and decidedly less likely to respond to appeals for donations.

On the other hand, Brad's actually trying to do something responsible is very heartening.

On the third hand, Drummond's reply makes me decidedly unhappy yet again.

I wonder how many alumni are unhappy about this, and whether it would be a good idea for us to do something, collectively, to express our unhappiness.

[lgm]

I'm afraid I disagree. Under the rule of law, the Berkeley University Senate probably has no jurisdiction to act. Of course it can recommend. But recommending has to cite legal grounds. Short of Yoo being convicted of an actual crime, there seems to be no basis for action. If an engineering professor gave deliberately incorrect advice and a bridge collapsed, he would not lose tenure before being convicted in court. This is a similar situation.

[lgm]

I'm afraid I disagree. Under the rule of law, the Berkeley University Senate probably has no jurisdiction to act. Of course it can recommend. But recommending has to cite legal grounds. Short of Yoo being convicted of an actual crime, there seems to be no basis for action. If an engineering professor gave deliberately incorrect advice and a bridge collapsed, he would not lose tenure before being convicted in court. This is a similar situation.

[piotr]

"Short of Yoo being convicted of an actual crime..."

I am sure that criminality and repugnant nature of the conduct is sufficient, and the only question is: can there exist a crime, if the state does not want to prosecute it?

Non-legal sanction for crimes does not require convictions. The very notion of impeachment of officials is predicated on that fact. The powers of Berkeley Senate to remove faculty members are analogous to the powers of US Senate to remove federal officials, including judges and the President.

"Prof. Yoo has agreed to testify before a Senate committee. More details of what he did while on government service are likely to surface at that time."

I am sure that we will learn that Prof. Yoo is a lifelong advocate of kindness toward adorable puppies.

Basically, the default position of officials like a college president is supine deference to authorities, particularly on security matters. Only widespread protest can move their posteriors.

Perhaps the fact that Prof. Yoo is asked to testify is encouraging: until then, Berkeley administration can pretend that Yoo's writing do not exists. DeLong urges Drummond to read Yoo's memo, Drummond replies that he did not see anything wrong in the university by-laws. However, a committee finds out that the nature of writings, and it really means, executive decisions, of Prof. Yoo has some relevance, so the ball can start rolling. But without some mass letters, it will be like playing soccer with a bad of sand.

[Anderson]

"Where is the Berkeley undergraduate population on this? They never would have stood for this back in the 1970s."

I too have been wondering this. "Hey hey, ho ho, Torture Yoo has got to go" should be echoing around the campus.

I guess they're all too busy applying to MBA programs.

[dca]

My first reaction was that Drummond, formally, is correct: discipling faculty is something that is done by the administration, not the Senate--though it would be instructive to see if this has always been true at UC, and how it came to be (....thinking like a common lawyer).

My second reaction was that, while this is true, that is not what you were asking for. The Senate has every right to express its opinion on the rights and duties of faculty members who make their expertise available, while on leave, as government employees, and on how their actions while serving in the government should be viewed by the University. Should censure be applied to someone who, in the course of such outside work, performs at a level below scholarly standard? Gives advice that may lead to, or encourage, criminal acts? This is not an area in which the various university bylaws have much to say, simply because they assume that the faculty member is always acting primarily as a faculty member: they are weak on the situation in which a faculty member behaves unprofessionally while on leave. (Note that Kantorowicz does not really envisage this either: for him a professor was a professor). It seems to me that the Senate could well address these issues in a discussion that need not, in
its report, be specifically about a particular member of the faculty.

My third reaction (to the comments) is that someone should get the opinion of a defamation expert on the Chair's opinion that a specific report would be defamatory: I agree with the commenter that this sounds quite implausible. The bar for defaming a public figure is, fortunately, quite high in the US: and at this point Prof. Yoo is very much, by his own actions, a public figure.

And my fourth reaction is that, if Berkeley's faculty lacks the expertise to produce such a report, no doubt this lack can be made up using faculty from the other UC campuses.

[selenesmom]

Of course there's something you Berkeley alums can do, and it's the thing they probably fear most. Cut off the purse strings.

If you give, stop, and drop them a line telling them why. If you're asked to give, don't, and explain why. If you don't give, you may be able to pressure big givers, and then drop the school telling them that you're doing this and why.

[selenesmom]

Afterthought: I think cutting the flow of funds would be a lot more constructive than complaining that the undergrads are not marching around yelling enough.

[ogmb]

"I have little clue as to what counts as an "actionable breach of professional ethics" or as serious scholarly misconduct."

My guess is that it refers to a ruling by a court of law or a Bar Association. Hence the argument seems to be that fact finding is outside the remit of the Academic Senate.

[Ralph Hitchens]

Prof. DeLong -- I think your friend Bill is right to hold off on this one. As someone once said, as liberals we're obliged to wear the shoes of liberalism, even when they pinch a bit. By way of consolation, I think nothing your fellow academics might do to Yoo would amount to much by comparison with the widespread condemnation he has already brought down upon his own head.

[Charles]

Good on you, Brad, for writing the letter and for posting the response.

If Mr. Drummond is short of ideas on who at Berkeley might have expertise in moral philosophy, constitutional law, and international relations, might I recommend he browse the directory:

Niko Kolodny (Ph.D., University of California–Berkeley). His main interests are in moral and political philosophy.
Samuel Scheffler (Ph.D., Princeton University). His research interests lie mainly in moral and political philosophy.
R. Jay Wallace (Chair) (B. Phil., University of Oxford; Ph.D., Princeton University). His interests lie mainly in moral philosophy and the history of ethics.

Kathryn Abrams. Abrams teaches feminist jurisprudence, voting rights and constitutional law.
Diane Marie Amann. Recent works have focused on legal responses to U.S. policies respecting executive detention at Guantánamo and elsewhere, on the use of foreign and international law in U.S. constitutional decision making
Jesse H. Choper Choper was one of the three major lecturers at U.S. Law Week’s Annual Constitutional Law Conference in Washington, D.C.

Ron Hassner - religious violence, Middle Eastern politics, and territorial disputes
Philip Tetlock - accountability systems, de-biasing judgment and choice, and political psychology
Robert Powell - game theory, deterrence
Steven Weber - international organization, European integration

That is truly a pathetic dodge, claiming that Berkeley lacks expertise.

[Anderson]

Hence the argument seems to be that fact finding is outside the remit of the Academic Senate.

Which of course is nonsense. If Yoo were an elderly professor revealed to've been part of the assembly line at Treblinka, but for whatever reason were not prosecuted, I don't think the Senate would sit on their hands.

The weird "defamation" angle makes me think the school's lawyers are the ones at work here.

[Patrick]

Excellent post on the many ways that John Yoo's continued affiliation with the law school damages its reputation as a top-tier institution. Perhaps these posts should be titled "UCB Boalt School of Law Death Spiral Watch." A bigger concern is that the damage won't stop at BSL but contaminate the entire University's reputation.

[Mark Field]

"I wonder how many alumni are unhappy about this, and whether it would be a good idea for us to do something, collectively, to express our unhappiness."

A good start would be to stop contributing to the University, and to write a letter saying why. I did that a while ago.

"My third reaction (to the comments) is that someone should get the opinion of a defamation expert on the Chair's opinion that a specific report would be defamatory..."

Experts? We don't need no stinkin' experts.

Seriously, I'm a CA lawyer and I've handled defamation cases. Drummond's comment doesn't need evaluation -- it's preposterous.*

*Obviously it would be possible for a report to make false accusations against Yoo, but clearly nobody is suggesting any such thing.

[johne]

Thank you, Professor.

Interesting that the formal letter has been answered with an informal note, signed "Bill." You don't need a background in deconstruction to see that the underlying message is, "My pal Brad and I were just having a little chat; nothing to see here, folks."

[Kate G.]

Brad,

I'm anti sentiment but I just have to say that you have made me so, so, so very proud of you with this letter. Incredibly proud. It brought tears to my eyes.

Send your letter to the Berkeley Press and send another letter to your pal "bill" asking him whether a Professor has ever lost his job for "moral turpitude" and if so whether a fact finding session was required first, or forbidden on the bizarre grounds that fact finding was defamatory?

All the best and many thanks
Kate G.

[psychohistorian]

Brad,

Thank you for speaking truth to power. Hopefully enough will hear it and help move the college in the right direction.

[ogmb]

As background reading on what it takes to get fired from the UC system as a tenured faculty I recommend this article:

http://online.wsj.com/article/SB852662013715135500.html?mod=googlewsj

[Roger Albin]

To get a view from someone who is both a lawyer and a moral philosopher, and definitely qualified to serve on the proposed committee:

http://leiterlawschool.typepad.com/leiter/2008/04/once-more-int-1.html

It won't be what most of you want to hear.

[Barry]

Brad, congratulations on standing up!

[Hugh]

William Drummond is just blowing smoke. He clearly has no idea what defamation is but is willing to invoke it anyway as a kind of boogeyman to justify his own inaction. The problem though for Drummond, Edley, Boalt, and Berkeley is the university is harboring a war criminal, not an academic dissenter or someone with an unpopular view. There is no arcane rule of law here or an abstract matter that people of goodwill might disagree upon. We are talking about torture plain and simple. Drummond doesn't need to wait for Yoo's Congressional testimony. He can read the memo himself. His failure to do so and take action is a clear indication that the university, its administration, and its law school faculty not only condone torture and war crimes but are willing to become accessories to them.

[Barry]

Rusty, please STFU, and go enter some numbers into an Excel spreadsheet. You obviously don't understand what's being debated.

[liberal]

"Short of Yoo being convicted of an actual crime..."

Was Al-Arian convicted of an actual crime before being fired? AFAICT from
http://en.wikipedia.org/wiki/Sami_Al-Arian
he wasn't.

[Neal]

(QUOTE)

UNIVERSITY OF CALIFORNIA
POLICY ON REPORTING AND INVESTIGATING ALLEGATIONS OF
SUSPECTED IMPROPER GOVERNMENTAL ACTIVITIES
(WHISTLEBLOWER POLICY)
I. Introduction
The University of California has a responsibility for the stewardship of University resources and the public and private support that enables it to pursue its mission. The University is committed to compliance with the laws and regulations to which it is subject and to promulgating University
policies and procedures to interpret and apply these laws and regulations in the University setting. Laws, regulations, policies and procedures strengthen and promote ethical practices and ethical treatment of the members of the University community and those who conduct business with the
University. The University’s internal controls and operating procedures are intended to detect and to prevent or deter improper activities. However, even the best systems of control cannot provide absolute
safeguards against irregularities. Intentional and unintentional violations of laws, regulations, policies and procedures may occur and may constitute improper governmental activities as defined by statute (see “Definitions”). The University has a responsibility to investigate and report to appropriate parties allegations of suspected improper governmental activities and the actions taken by the University. This policy governs reporting and investigation of allegations of suspected improper
governmental activities, and together with the Policy for Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints, represents the University’s implementing policies for the California Whistleblower Protection Act (Government Code Section 8547- 8547.12). Employees and others are encouraged to use guidance provided by this policy for reporting all allegations of suspected improper governmental activities. While the scope of this policy is intended to be limited to the statutory definition of improper governmental activities, serious or substantial violations of University policy may constitute improper governmental activities determined upon review or investigation....

Any allegations of improper governmental activities that may result in subsequent actions bringing disciplinary charges against an academic or staff member shall be coordinated with the applicable academic or
staff personnel conduct and disciplinary policies. In all instances, the University retains the prerogative to determine when circumstances warrant an investigation and, in conformity with this policy and applicable laws and regulations, the appropriate investigative process to be employed....

B. Improper Governmental Activities
According to California Government Code Section 8547.2, an improper governmental activity is:
any activity by a state agency or by an employee that is undertaken in the
performance of the employee’s official duties, whether or not that action is
within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption,malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetency, or inefficiency.

(END QUOTE)

Good luck!!

[Pete]

I also join the chorus of thanks for issuing and sharing your letter. As an alum of Boalt Hall, it is especially galling to watch this spectacle of cowardice.

One minor comment on your letter - I think the references to the fact that torture victims were "low value" and to the absence of a "ticking bomb" weaken the point a good deal. Even if the detainees were high value, and even if there were a ticking bomb, it had been the settled law of the U.S. and is still the settled law of the international community, that torture is not justified even by those exigencies, which is what the The US military's own lawyers and intelligence experts were trying to say, and which is why Yoo was chosen to write his memo.

You've made this point yourself many times, Brad, so I assume you had a good tactical reason for including those references in your letter.

Thanks also for posting Dean Kahan's Yale Law School 2006 commencement address. Dean Kahan makes a very strong case for why Boalt should decide Yoo has no business teaching law at Berkeley.

[Pete]

I also join the chorus of thanks for issuing and sharing your letter. As an alum of Boalt Hall, it is especially galling to watch this spectacle of cowardice.

One minor comment on your letter - I think the references to the fact that torture victims were "low value" and to the absence of a "ticking bomb" weaken the point a good deal. Even if the detainees were high value, and even if there were a ticking bomb, it had been the settled law of the U.S. and is still the settled law of the international community, that torture is not justified even by those exigencies, which is what the The US military's own lawyers and intelligence experts were trying to say, and which is why Yoo was chosen to write his memo.

You've made this point yourself many times, Brad, so I assume you had a good tactical reason for including those references in your letter.

Thanks also for posting Dean Kahan's Yale Law School 2006 commencement address. Dean Kahan makes a very strong case for why Boalt should decide Yoo has no business teaching law at Berkeley.

[Roger Bigod]

Leitner's analysis is that Yoo did nothing wrong because he was acting in "good faith", like a tax adviser who gives incorrect advice. So if I believe in "good faith" that it's morally acceptable to kill physicians who perform abortions, that's acceptable? If I advise someone else to do it and they act on my advice, I'm not an accomplice?

[Megan]

Thank you. Your letter was wonderful.

I suppose that in the long run, if no one at U.C. is willing to take this on, we kick it up to whomever oversees U.C.. Perhaps the California Legislature can muster the appropriate expertise to examine how the U.C. bylaws apply to tenured professors who implement torture.

[rea]

"Leitner's analysis is that Yoo did nothing wrong because he was acting in "good faith", like a tax adviser who gives incorrect advice."

Problem is, Yoo, ignored the Youngstown case in formulating his advice. The Youngstown case, as anyone with the slightest passing familiarity with constitutional law knows, ought to be the very first case anyone looks at when considering the extent of the President's powere as Commander in Chief of the armed forces. That sort of mistake can't happen in good faith. If he'd written up an argument that Youngstown was inapplicable, or wrongly decided, he might be able to make a plausible claim of good faith, but not even to mention it?

What would you make of a sportswriter who did a preseason analysis of the 2008 baseball season, and didn't mention the Red Sox? Not, predicted they wouldn't do well, but simply didn't mention them?

[Jeffrey Harris]

Perhaps one needs to compare this with the case of Ward Churchill, who argued that the US earned the 9/11 attack by its violent actions in the Mideast generally.

He was roundly condemned for calling those killed in the WTC "little Eichmans,", ie he viewed them tacitly complicity in the exercise of US power. His university, in response started investigating his research, found violations of scholarship norms, specifically:

(quote) "four counts of falsifying information, two counts of fabricating information, two counts of plagiarizing the works of others, improperly reporting the results of studies, and failing to "comply with established standards regarding author names on publications." In addition, the committee found him "disrespectful of Indian oral traditions."

He was dismissed from his post.

So, what if anything does this case say about the Yoo situation?

jhh

[Jack]

Good stuff. The brief mention of including those with expertise in moral philosophy on the committee is cute, but it can probably be dropped. It's not like philosophers who "study" morality know any better than ordinary people how to judge right from wrong. We know what Yoo did was morally reprehensible, the question is one of legal recourse which would stem from a breach of professional ethics, defined (tautologically) in legal terms. Adding moral philosophy to the mix would just muddy the waters--that's for the most part what philosophy does. Yoo and his defenders might get philosophical, but that would just show they are willing to take the last refuge of an intellectual scoundrel.

[The Raven]

"Leitner's analysis is that Yoo did nothing wrong because he was acting in good faith', like a tax adviser who gives incorrect advice."

In other words, Yoo was following orders. They didn't buy it at Nuremberg; I don't think it holds here, either. More food for ravens! Caw!

[Randolph Fritz]

Thank you, Prof. Delong.

[Chris Brown]

Great work Professor. I thank you heartily for your efforts that Prof. Yoo be held accountable for his despicable act and hope you will stick with the effort.

[non-lawyer]

Shorter Brian Leiter and William Drummond: If the government is too corrupt to charge Yoo with a crime and convict him then we are all about getting in line behind that corruption and demonstrating our own spinelessness therewith, looking all scholarly and nuanced of course. Lipstick on a pig, I say.

Berkeley continues to soil it's reputation by it's failure to obtain moral ground. The lack of outrage by today's students compared to students of a bygone era reveals how corruption has been instilled into the youth of today. They are at home with it. Torture, no big deal. Berkeley fuels and legitimizes that low moral standard in today's students with it's stance in regard to Yoo. These students will be tomorrow's leaders. Yoo's stench will permeate our society via the upcoming generation.

The idea of withholding contributions by the alumni is a good one for two reasons. The obvious financial one and the additional message to today's students that maturity, wisdom and rectitude stand for something.

[theo]

"there's the practical problem of finding committee members with the expertise you outline."

If only there were some institution which brought together professional scholars with special expertise in moral philosophy, international relations, human rights, or constitutional law.

Perhaps we could call it the "Universitas magistrorum et scholarium." Although that seems a bit unwieldy, and I welcome any suggestions for a more concise name.

[thorstein veblen]

re: "Berkeley has no one with expertise in moral philosophy, international relations, human rights, or constitutional law."

I don't think the Chair of the Academic Senate at Berkeley should be pushing this line too hard... Since Drummond knows nobody at Berkeley w/ expertise in any of these fields, perhaps he could get experts to come in from Stanford?

[Mike]

I studied under Yoo, I think he's an excellent teacher, I did research for him, I like him personally – and I suspect the torture memo is reason enough for him to be fired and disbarred, if not imprisoned. Edley's failure to seriously address the memo is one reason that I've stopped contributing to the general Boalt Hall Fund (I still contribute to scholarship funds). Now that Drummond has joined Edley in the cop-out club, I'm certainly not going to contribute to the general Cal Fund (I'm also an undergrad alumnus).

I will continue to contribute, however, to the alumni association's The Achievement Award Program (TAA) need-based scholarship. I'll always love Berkeley and people like Prof. DeLong are the reason.

[Jessica]

Thank you, Professor DeLong.

[Paul J. Camp]

Essentially, he is arguing that it is NEVER possible to discipline, or even investigate, or even mull over the moral quandaries presented by a sitting, tenured faculty member.

Academic freedom uber alles.

Good luck with that.

[a]

Good job, give 'em Hell. (He'll get it when the long-run finally catches up with him, anyway.)

[DBK]

1. I join other readers in thanking you for making public both your own letter and the response by the Chair of the University Senate.
2. The Senate may or may not have a role to play here (one would need to have read the Senate's By-laws to judge this), but the response is weak in either case. I suspect that the Senate is leery of becoming involved.
3. The Senate Chair's use of "Brad" in his response, in rhetorical terms, a) trivializes the contents of the original request, and b) demeans the request's writer.
4. That Berkeley (or the UCA system) does not have access to scholars conversant with the fields of knowledge you note as being relevant to Yoo's case is impossible.
5. It seems fairly clear what happened when Yoo was on leave at the OLC and wrote the memo. In writing the memo did he commit an offense that would justify his being disbarred? Is he a member of the California Bar Association? Could an individual who has been disbarred continue to serve as a tenured faculty member in a professional school after his right to practice the profession has been revoked?

[James Wimberley]

As a former university administrator, I am shaken by Drummond's assertion that it would be up to the administration to file a complaint of misconduct. If academic self-government means anything, it has to include responsibility for self-policing of ethical and professional violations. Suppose a student comes to an administrator with an allegation of theft of original work by a teacher. What should the administrator do? Contact an academic with governance responsibility: the Dean or (if the alleged thief is the Dean) the Chancellor. If it's an allegation of rape, a straightforward criminal offence, then I suppose the bureaucrat should go to the police directly. But it's not her job to sit in judgement or act as prosecutor.

[Jeff Chapman]

So here's a novel idea. Let's all boycott Berkeley. Don't go to their football games. Don't send your kids there for an "education" and pay their tuition. Consumers should be able to shut down a corrupt institution as fast as they shut down... eh.... Countrywide mortgage.

[Barry]

"Essentially, he is arguing that it is NEVER possible to discipline, or even investigate, or even mull over the moral quandaries presented by a sitting, tenured faculty member.

Academic freedom uber alles.

Good luck with that."

Posted by: Paul J. Camp

He's actually implying that any investigation of a unconvicted student or an unconvicted employee of Berkeley would be defamatory, the way that I read it.

[Francis]

Brad, please request that the Dean provide some legal authority for his assertion that the creation of an investigatory panel constitutes defamation. I'll bet he weasels.

It is truly astonishing that a dean of one of the most prestigious law schools in the country would write something so utterly preposterous. You should circulate the Dean's email to the law school faculty and ask for comment.

Better yet, send a copy of your letter and the Dean's response to Erwin Chemerinsky, one of the finest Constitutional law professors in the country and the founding Dean of the law school at UCI. Ask him what he thinks of the Dean's advice and of the Berkeley Faculty's powers and obligations to investigate Prof. Yoo for committing what is potentially a serious criminal violation of international law.

[Richard Cownie]

Brad, I applaud you for trying to move this issue forward.

I have one slight quibble with the content of your letter: it seems to
suggest that torturing the probably-guilty would not be as bad as
torturing the probably-innocent. I make no such distinction
distinction: torture is morally wrong, regardless of who the victim
might be. And the relevant laws and treaties also make no such
distinction: torturing the guilty - even those proven guilty under
due process - is just as illegal as torturing the innocent. This
isn't about who *they* are; it's about who *we* are.

Since your administration seems unwilling to take any action on this,
here's my suggestion: subject Yoo to the shame he deserves. Get each
of Yoo's colleagues to write an analysis of his torture memo, pointing
out its gross inadequacy (discussing wartime presidential powers without
even mentioning Youngstown ??), and the appalling implications of its
arguments - didn't Yoo himself admit in debate that it would be legal
and constitutional to order the testicles of an innocent child to be
crushed ? Then each day, print copies of one such analysis, and hand
them out to students entering Yoo's class.

It seems to me that would make life unbearable for Yoo, while also being
wholly in keeping with the principles of academic freedom and open debate.
Now that his arguments are public, he should be forced to live with them
and defend them every day.

[s9]

"I am left with a puzzle."

I don't see it that way. It seems to me Drummond has passed the buck. The Academic Senate need not do any work to find any facts, whatever the facts might be, because the U.S. Congress will soon be finding plenty of facts to go around. Perhaps, Drummond believes that launching a fact-finding committee would be defamatory to the U.S. Congress, in which case I must commend either his optimism or his dark, pitch-black sense of humor— time will tell which one.

[Greg]

I think Jim Henley has the best reaction.

http://www.theartofthepossible.net/2008/05/07/where-did-berkeley-get-its-reputation/