Spencer Ackerman asked me some questions, and wrote up the results: http://www.washingtonindependent.com/view/the-berkeley-tempest.
Here is my full email back to him:
- Why are you doing this? Will you be satisfied with anything less than Yoo's expulsion from Berkeley?
I've found myself doing this because I think somebody should, and I happen to be here...
I don't think I will be satisfied whatever happens.
For the university to take note of Yoo's "Torture Memo" and to impose any kind of sanction poses grave dangers for academic freedom--we don't want smart people shutting up because they are afraid that those who don't want to hear what they have to say will be able to retaliate in some way.
For the university to take no note of Yoo's "Torture Memo" is for it to endorse Yoo's claim that his work is lawyering and law professing as usual--that Yoo has some legitimacy when he claims, for example, that the president can legally order the torturing and maiming of prisoners and that congress has no power to restrain him even though the constitution explicitly gives congress the power "to... make rules concerning captures on land and water... to make rules for the government and regulation of the land and naval forces." It is a choice of poisons--the question is which is least bad...
- Are you concerned about the academic freedom implications of this move?
- Should the university shield the advocacy of behavior that violates the law?
Yes, definitely. The way Ernst Kantorowicz put it, we have universities and professors because we think their thoughts and their judgments have validity, and if one concludes that, say, it is time to overthrow the government of the United States by force and violence then he or she is under an obligation to see that and we need to hear that.
The questions in Yoo's case are knottier, and I think five:
- Did Yoo do more than simply give his opinion and judgment and cross the line to become an actual conspirator to commit crimes? As I read Philippe Sands, he thinks the answer is yes.
- Did Yoo, in his legal advice to the Department of Defense, violate a lawyer's professional ethical duty to inform his clients of the law--and does that violation make him an improper choice to teach in what is, at bottom, a vocational school? I don't think I know.
- Did Yoo, in his accounts of what he said the law was, commit violations of the rules of argument--through such things as his failure to deal with the Youngstown case--that rise to the level of grave scholarly misconduct? I think probably.
- Are any of these three grave enough to warrant censure or dismissal? I don't think I know, but I do find myself leaning that way.
- Is it possible for Berkeley to take any action that is appropriate in this case without starting down a road that will lead us to a place where we really, really do not want to be as a university? I don't think I know, but lots of people I respect think that this is a slope that is too slippery to go down.
Hence my belief that the right thing to do is for the Academic Senate to create a fact-finding committee, to both find out the facts of what Yoo did exactly, and to find out what our principles really are exactly...
- What would the implications be to Berkeley, and the country, if Yoo doesn't face any reprisal for his actions at the Justice Dept?
Well, let me turn the mike over to Georgetown Professor Marty Lederman, who you should definitely talk to (along with Philippe Sands) before you finish writing this:
I don't think John [Yoo]... actually believed that [his] arguments... would be adopted by many, if any, relevant legal communities.... I don't think John, et al., thought that their arguments would withstand scrutiny if presented to a court. And, perhaps most importantly, I think that John knew full well that many of the specific arguments within his memos about, e.g., the meaning of statutes and the existence of certain criminal defenses, were simply hooey, supported by "authorities" that were at best tendentious and off-point, and at times mischaracterized in a way that can only be presumed to have been dishonest....
[I]t seems to me that they wrote... not... to describe the law as it is, but instead to try to create the law as it might be (and, in their view, as it should be)... lay[ing] the groundwork for their now-unorthodox conclusions to evolve to the point where they become legitimate... a new law of presidential powers.... [The] law of presidential powers can only be developed in a pro-presidential direction, if at all, if Presidents and their lawyers make novel claims of authority -- repeatedly -- and those claims are not resisted, or are even ratified by, the legislature and the people (and sometimes even by the courts).
When, if ever, such "aspirational" constitutional interpretation by executive actors is appropriate... are very important and difficult questions. For now, my point is merely to describe what I think was going on here...
To fail to state that Yoo's interpretations are beyond the pale is to endorse them as lawyering-as-usual, and to make it more likely that we will remain a country that routinely tortures hundreds if not thousands of people who have been sold to the CIA for cash by their clan enemies on the theory of, well, why the hell not torture them--there's a one-in-a-million chance that one of them might actually know something about Al Qaeda. Such a shift in who we are needs to be stopped and rolled back--and if Yoo's interpretations are taken to be just lawyering-as-usual, it won't be.
If not rolled back, such a pattern of behavior by America's soldiers poses the gravest of long-term threats to America's national security. We are not talking evil masterminds with ticking bombs here. We are talking low-level players and innocents caught up in dragnets--all of whom and all of whose relatives now have a real good reason to hate America.
You should also take a look at Dan Kahan on John Yoo: if you want a strong between-the-lines argument from the Deputy Dean of Yale Law School that John Yoo has no business educating future lawyers, it is there: http://delong.typepad.com/egregious_moderation/2008/05/dan-m-kahan-yal.html