WHEREAS, the U.S. Department of Justice Office of Professional Responsibility Report on the Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Related to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists states that Berkeley School of Law Professor John Yoo's writings and conduct rise to the level of "intentional professional misconduct" through violations of his duties to "exercise independent legal judgment" and "render thorough, objective, and candid legal advice";
WHEREAS, such intentional professional misconduct, if true, would appear to be the kind of misconduct contemplated in APM015(B)--Scholarship;
WHEREAS, such intentional professional misconduct, if true, would appear to lend material support to violations of "compelling law" principles of domestic and international law, which would appear to be the kind of misconduct contemplated in APM015(E)--Community;
WHEREAS, this finding raises important, sobering, and complex issues of both academic freedom, of intellectual honor, of moral responsibility, and of our accreditation to train future lawyers to properly serve as officers of the court at this university;
RESOLVED, that the Berkeley Division Academic Senate appoint a committee consisting of [5?] members of the Berkeley Division, with knowledge of the demands of professional practice, international law, constitutional law, and moral philosophy, to investigate and publicly report on the question whether the Berkeley Division should recommend to the Chancellor any form of disciplinary investigation, with the report to issue no later than August 30, 2010.
Should I petition Professor Chris Kutz, President of the Berkeley Division of the Academic Senate of the University of California, to call a special meeting of the Senate in order to consider the above resolution?
If I had Berkeley Law School Dean Chris Edley here on this weblog, I believe that he would say that I should not. And I believe that he would give the following reasons:
Academic freedom is a very important part of our society. There needs to be a place where people can think and then say what they think without fear of consequences--without fear that they will lose their life, their liberty, their wealth, or their livelihood--and in our society our universities are that place.
The right place to exercise quality control over the university--to ascertain whether someone thinks well and hard enough and presents their ideas truthfully enough to be a full member of a university, and thus to be protected by aademic freedom--is at the point of hiring and retention, not afterwards.
To impose any kind of sanction on John Yoo for what he said, for the fact that his failure to render thorough, candid, and objective legal advice amounts to intentional professional misconduct, would be a gross breach of academic freedom, doing much more damage to the university than could be counterbalanced by any possible good.
To impose any kind of sanction on John Yoo for how he said it, for the fact that the quality of his arguments was so low and his failure to exercise independent legal judgment so glaring as to amount to intentional professional misconduct, would be a gross breach of academic freedom, doing much more damage to the university than could be counterbalanced by any possible good.
To even inquire into the question of whether John Yoo's intentional professional misconduct might all for some form of sanction on the part of the university would exercise a chilling effect on academic freedom and in and of itself do damage to that principle, doing much more damage to the university than could be counterbalanced by any possible good.
The argument for petitioning Chris Kutz is: Look, John Yoo's conduct at the Office of Legal Counsel caused substantial damage to the national security of the United States. Look, John Yoo's conduct at the Office of Legal Counsel caused substantial damage to the rule of law in the United States. Look, John Yoo is a clown--a guy who in 2000 can argue with a straight face that President Clinton's powers as commander-in-chief do not extend to ordering American troops to obey British NATO generals, and in 2002 can argue with a straight face that President Bush's powers as commander-in-chief extend to making it unlawful to resist his orders to commit deeds that we have in the past classified as crimes against humanity and hanged people for. Whatever his political masters call for, he delivers--whether it requires (as in 2000) that the president's powers as commander-in-chief of the armed forces be so narrow that they could be covered by a nose hair or (as in 2002) that they be as wide as the ocean itself.
Keeping such a clown--a clown who commmits such egregious and transparently obsequious subservient intentional professional misconduct--as a member of the University of California does harm to the university as an academic instition. It gives every member of the faculty a black eye. And we owe it to ourselves to inquire how we think about balancing the damage done to the university by our turning a blind eye to his actions against the harm to academic freedom that would be done by imnposing some kind of sanction for his intentional professional misconduct, for his violations of his duties to exercise independent legal judgment and render thorough, objective, and candid legal advice.
Those are the two arguments.
I genuinely do not know how I come down on the substance of the case of John Yoo. On the one hand, the examples of Bruce Bartlett at the and of David Frum at the American Enterprise Institute have convinced me that academic freedom in America today is under more pressure and is more precious than I had thought. Most of the time, however, I come down on the side of some kind of sanction. But I do think that I want the advice of wiser heads on the substance. And all of the time I think that a Berkeley faculty committee to report on the issues would be a useful and healthy exercise to undertake.
But I could be wrong.
That is the threshold question right now: Am I right in thinking that a Berkeley faculty committee to report on the issues would be a useful and healthy exercise to undertake? Or is Berkeley Law School Dean Chris Edley right in thinking that even an inquiry into the question of whether John Yoo's intentional professional misconduct might all for some form of sanction on the part of the university would exercise a chilling effect on academic freedom and in and of itself do damage to that principle, doing much more damage to the university than could be counterbalanced by any possible good?
What do you think, guys?
