Main | Marty Lederman Defends John Yoo »

May 08, 2008

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Charles

I hope that Edley and Drummond understand that everyone who reads what they have written instinctively understands that it's pure flummery.

Contra Drummond, the Academic Senate can certainly inquire into whether the university's generous treatment of John Yoo is consistent with the standards stablished for faculty. The Academic Senate may not be able to fire John Yoo, but they can throw some kindling on the fire underneath the Regents's feet.

Fred Clark

That's a well-crafted memo (yours, Brad, not Drummond's reply). It's far more temperate than I might have managed.

I'm wondering if the question of academic freedom is really necessary here. The University of California also has a Faculty Code of Conduct. That code should mean that John Yoo is accountable for his deeds regardless of whether or not academic freedom protects his ideas.

I'm also wondering whether students have standing to file complaints about violations of that code of conduct.

Emma Anne

Hey where'd all the comments go?

In any case, let me just state that Mr. Drummond's comments are insultingly stupid. There are reasonable arguments as to why the Senate should not be the body to act. I disagree with those arguments, but they make some sense. But idea that creating a panel would be *defamatory* is just laughable.

DBK

Hmm, it would seem that all the comments to the original posting have somehow been spirited into cyberspace.

PeterE

I looked at the standing orders for the Academic Senate. Here is Standing Order 105.2 (e):

"The Academic Senate shall have the right to lay before the Board, but only through the President, its views on any matter pertaining to the conduct and welfare of the University."

Surely that order allows the Academic Senate to form a fact finding committee.

About Drummond's practical problem of finding "faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law", the Academic Senate could always borrow them from Stanford or Harvard, if the university lacks professors unfamiliar with those topics.

johne

Another vote for restoring the original post's comments - they were an education in and of themselves.

rootless-e

Drummond's note is definitive. There is smoke that carries the scent of burned meat from the concentration camp on the outskirts of town, but there are many procedural issues in making an objection.

David Levine

Brad:

Consider Professor Left, on leave at CEA, who went on national TV to argue that a rise in the minimum wage would not increase reduce employment, increase prices, or harm small business's profits. Professor Left knew that at least one of these effects was essentially certain to occur, but had a political job to do.

Consider Professor Right who, a few years later, went on national TV to argue that a cut in capital gains tax rates would raise tax revenues. He knew full well that the short-term boost in tax revenue will be overwhelmed by revenue cuts in later years. He hid that fact on TV, in Congressional testimony, and in memos to executive branch decision-makers.

Professor Center is more mainstream than his colleagues on the left and right. He goes on national TV to argue that a free trade pact will increase U.S. employment. In fact, Professor Center believes unemployment will be roughly unchanged as it is largely determined by the Federal Reserve. Employment will probably be lower, Prof. Center believes, because the free trade pact might increase employment with the trading partners and reduce immigration to the United States.

Assume that each policy in fact had (somewhat predictable) harmful consequences: job loss for minority teens, massive budget deficits, and a financial crisis in the southern trading partners that reduced their ability to purchase U.S. exports. Was it professional misconduct to push these policies while declining to mention (and sometimes implictly denying) the downsides? Do those recommendations disqualify the professors from teaching? Would it matter if the economists had line authority and made policy decisions, or were trusted advisors who were very influential with both parties, not just standard wonk advisors?

I mention these cases not to defend Professor Yoo or the despicable U.S. policy of torture. I mention these cases to suggest the issues of academics acting as political advisors and decision-makers are tough.

wetzel

You have placed Professor Drumond in a position where to initiate an action in defense of a thousand year tradition of law against, torture he must push up to the line, and maybe cross the line into an improper form of inquisition. The question of your standing, and the Senate's standing, is really important, I think, to interpreting the rationale of his reply.

For us who are outraged over what Yoo and the others have done in our name, his reply seems like a really thin gruel. I think he is probably taking the right approach, unfortunately. Although your approach in the letter is to present the inquiry as a fact-finding approach, information gathering, and liberal discourse, you are really calling to subject Yoo to an Inquisition. It is disingenuous to misrepresent what would have called for as a scholarly inquiry when the stakes professionally and possibly criminally for Yoo would make it more of a grand jury proceeding or a judicial inquiry.

There is another tradition in law going back even further than prohibition of state torture governing the standing of complainants in proceedings. The question of standing to speak is a settled wisdom that is a first order concern of any parliamentary organization. In the light of this, Dr. Drumond understands the limitations of his position. The controller of the floor must withstand those who would advocate the parliament assume a role for which it was not intended or proper. Obviously the introduction of matters of professional misconduct by peers within a university against each other to the floor of the Senate for debate must involve the questino of the standing of the complainant. Certainly it is not permitted for one faculty member to initiate an inquiry by the Senate against another faculty member as an individual Professor, and if there were such a process it would certainly need to be extremely circumspect and deliberative before even the first proposal of inquiry were public, no matter how egregious the complaint. I imagine Professor Drumond is a bit peeved that you do not seem to understand the dangers of Inquisition, because if you did then you would understand you have put the Inquisition on him, because many readers will see his reply simplistically and view him as Kafkaesque, cowardly, or participating in the banality of evil. The ability of a university administrator to accept this perception of their bland, indifferent replies as a bad thing is frankly sacramental.

Because the seriousness of John Yoo's Torture Memo extends to criminal behavior, I feel that an inquiry at the university level, especially at this early stage, is not proper because there would not be proper rules of evidence and processes ensuring objectivity and transparency. In a Berkeley inquisition, how would evidence of law breaking produced through the inquiry be referred to the Justice Department? Although I suspect that Professor Drumond would probably want to see Cheney, Yoo, Bush all at the Hague like the rest of his do, he modulated his reply to even have the not too diplomatic mention of the word 'defamatory', which is his way of kicking your shins a bit for catching up the Senate in the overall legal crisis of having a criminal in the White House. It is beyond their scope. I think you should not hold the letter against him because it is written to be exactly bland and imperturbable to protect the Senate against becoming an inquisition, which is a first order responsibility.

Franics

For a dean of a top-rank California law school to assert that the creation of a faculty fact-finding panel is "defamatory" is about as respectable as Prof. DeLong asserting that the growing concern about the housing sector in California is misplaced because the demand curve for housing slopes up.

It's not just wrong; it's insultingly wrong. The Dean is trotting out his specialized jargon in order to silence debate. He should be ashamed.

I'd still like to hear what my old Con. Law professor and now founding dean of UCI Law, Erwin Chemerinsky, has to say.

I also respectfully disagree with commentator wetzel. As I read the comments here and based on my own reading of UC Berkeley's various rules of procedure, the Faculty is supposed to play an important role in policing itself. It is, by duly adopted regulation, the body charged at the threshold level with investigating legitimate allegations of faculty misconduct.

I also think that there's an important distinction between Prof. Yoo's alleged conduct and that of Profs Left, Right and Center discussed in David Levine's comment. When I provide legal advice to a public agency (which I do), I can effectively insulate the board members of that agency from personal liability. The public agency can still be held liable for wrongful conduct, but because my advice is presumed to have been given in good faith, board members cannot. (This is a gross oversimplification, made for purposes of this comment. In California, see generally Gov. Code 820.6 [public employee acting in good faith under apparent authority of invalid enactment not liable for injury caused thereby except to extent that he would be liable had the enactment been valid].)

Attorneys representing governments, whether it's the federal government or a small water district, therefore have a special duty to act in good faith. We alone have the power to insulate elected individuals and senior staff from the legal consequences of wrongful conduct.


ogmb

Prof. Drummond is not the Dean of the law school. He's a professor at the journalism school and the chair of the Berkeley academic senate.

Slim

In a previous post you raised some doubts about the following:
"John Yoo wrote that President Clinton exceeded his powers as commander-in-chief by placing American forces in Kosovo under the command of British NATO General Michael Jackson."
I don't understand that argument. Is he saying that this is unacceptable in times of formal peace? Because in WW2 American forces in the South East Asia Command (SEAC) were under British command (Admiral Mountbatten as Supreme Allied Commander South East Asia). There was no American officer above Mountbatten in the chain of command. He might nitpick on some points but there is no getting around the fact that there was a formal agreement putting Mountbatten in the driving seat. Or is Yoo's argument that Roosevelt also exceeded his powers? In which case points for consistency but I doubt anybody is seriously going to agree.

Mind, this isn't a legal argument. I'm just pointing out that what President Clinton did was by no means unprecedented.

Steve Diamond

Professor DeLong,

I posted the following on the SFBayGuardian site in response to a call for the head of John Yoo and thought I would share it with you. I spent seven years on the Berkeley campus as a union representative, including representation of faculty and other academic employees. I believe it might have been more productive to have asked the Faculty Senate to conduct an inquiry into the role that government funding for national security purposes has helped over the last number of years create an atmosphere of support for an aggressive unilateralist foreign policy on the Berkeley campus (in the hard sciences, political science, etc.) than to target, prematurely, Professor Yoo.

“The core principles of academic freedom which have been incorporated into the personnel policies of most major universities for many decades protect Yoo from dismissal unless he is convicted of a crime "and which clearly demonstrates unfitness to continue as a member of the faculty." UC Academic Personnel Manual Sec. 15.

“Personally, I believe, based on the work of Phillipe Sands, there does appear to be sufficient evidence to indict and convict Yoo for war crimes - along with dozens of others like him in the Bush administration - but until he is convicted he cannot be deprived of his tenure as a professor at U.C. Berkeley. Of course, I take the same position with respect to Ward Churchill, though I have even less respect for the academic work of Churchill than I do of Yoo.

“For further information on academic freedom you and other SFBG readers can consult the website of the American Association of University Professors, a group formed by John Dewey and others in the early 20th century to protect academic freedom in the wake of the dismissal of Stanford professor Edward Ross, a prominent economist and sociologist who was a full professor and who had taught at Stanford for seven years. Ross had spoken out, quite controversially, against the use of migrant Chinese workers to build U.S. railroads. Another professor who spoke out in defense of Ross was also fired and several others quit the faculty in solidarity. Out of that series of events came the basic due process rights that attach to professors who receive tenure (and for those who are working towards that status). Tenure is a property right that cannot be removed without due process.”

_____________
Stephen Diamond
Associate Professor of Law
Santa Clara University School of Law

http://www.scu.edu/law/faculty/profile/diamond-stephen.cfm

Steve Diamond

Professor DeLong,

I posted the following on the SFBayGuardian site in response to a call for the head of John Yoo and thought I would share it with you. I spent seven years on the Berkeley campus as a union representative, including representation of faculty and other academic employees. I believe it might have been more productive to have asked the Faculty Senate to conduct an inquiry into the role that government funding for national security purposes has helped over the last number of years create an atmosphere of support for an aggressive unilateralist foreign policy on the Berkeley campus (in the hard sciences, political science, etc.) than to target, prematurely, Professor Yoo.

“The core principles of academic freedom which have been incorporated into the personnel policies of most major universities for many decades protect Yoo from dismissal unless he is convicted of a crime "and which clearly demonstrates unfitness to continue as a member of the faculty." UC Academic Personnel Manual Sec. 15.

“Personally, I believe, based on the work of Phillipe Sands, there does appear to be sufficient evidence to indict and convict Yoo for war crimes - along with dozens of others like him in the Bush administration - but until he is convicted he cannot be deprived of his tenure as a professor at U.C. Berkeley. Of course, I take the same position with respect to Ward Churchill, though I have even less respect for the academic work of Churchill than I do of Yoo.

“For further information on academic freedom you and other SFBG readers can consult the website of the American Association of University Professors, a group formed by John Dewey and others in the early 20th century to protect academic freedom in the wake of the dismissal of Stanford professor Edward Ross, a prominent economist and sociologist who was a full professor and who had taught at Stanford for seven years. Ross had spoken out, quite controversially, against the use of migrant Chinese workers to build U.S. railroads. Another professor who spoke out in defense of Ross was also fired and several others quit the faculty in solidarity. Out of that series of events came the basic due process rights that attach to professors who receive tenure (and for those who are working towards that status). Tenure is a property right that cannot be removed without due process.”

_____________
Stephen Diamond
Associate Professor of Law
Santa Clara University School of Law

http://www.scu.edu/law/faculty/profile/diamond-stephen.cfm

jerry

"Tenure is a property right that cannot be removed without due process."

Tenure at a UC School should be a contract right between California taxpayer and a professor. It should not be given out willy nilly as a fringe benefit, networking device, opening line to pick up coeds, or without a sunset clause and limited renewal option.

In 2008, Academic Freedom for most professors is best granted NOT through tenure, but with a 1 Terabyte server (and lifetime warranty), Red Hat Enterprise Edition, and a lifetime guarantee of DSL/cable/T1 plus a static IP.

Is it true that people without tenure are not protected with academic freedom to any great extent?

Steve Diamond

I understand the argument that comes from some outside academia about the potential abuse of the grant of tenure. However, I do not think there is a better solution than the grant of tenure. A faculty member must believe that their ability to earn a living as a teacher and researcher will not be threatened because of their willingness to strike out into new intellectual and scientific territory.

It is a social contract of a sort between society at large and the academy. In exchange for research and innovation that contributes to society as a whole, faculty get paid something (usually far less than what they can earn in the private sector) and get additional job security. The system has been in existence in various forms for centuries and exists in many countries - in the UK for example faculty are hired with tenure at the outset. It emerged in the context of the need to protect religious institutions from the state.

The American system actually has very severe checks and balances built in, including the (usual) requirement of an advanced degree, a multi year apprenticeship, the demonstration of intellectual depth through publishing and, let's not forget, continuous oversight by the university administration through salary and promotion decisions.

Whether one likes it or not, Professor Yoo made his way through that system successfully prior to taking leave to work for the USG. Now the question is, in my opinion, whether he committed a crime while on leave from the university such that he is unfit to teach. If so, then the university can dismiss him. Until that is determined however he should be allowed to continue to teach.

(I realize that Professor De Long has raised other issues - there are grounds in some situations to question the grant of tenure for reasons other than a crime and unfitness to teach, such as research dishonesty, as was alleged in the case of Ward Churchill. I have not had the opportunity to consider that issue.)

Rantly McTirade

Okay, hackademic poindexters, put your energies into lobbying Congress to
adopt a clear law on torture of combatants/associates of non-governmental
forces seeking to attack the United States; and if the Congress does pass
such a law, advise any friends/acquaintences that happen to be federal jurists that they'd best sprint away from any attempt to challenge a law passed by Congress and either signed by the President(at time of passage) or enacted by veto override.

A.Citizen

All arguments made here about academic freedom and tenure in defense of the vile Yoo collapse of their own weight. Not because You is not vile but because he failed to meet minimum standards of what his job creating an opinion for the President required. He in fact include no citations of other case law or findings. The entire memo is a fabrication made of whole cloth that has no legal merit. The Faculty Senate is charged with the disciplining of those members who are revealed to be so wholly incompetent as to damage the school's reputation by said incompetence and thus has the power to act in this case to discipline Yoo.

That is the issue upon which You can be driven from the campus. He is, and it's not hard even for regular citizens to see, an utter incompetent at the law and was so chosen by Bush & Co. because they knew he would justify any actions they wished to take. Regardless of what the law actually says. This sort of conscienceless behavior is also censurable by the Faculty Senate.

This is not an issue of tenure nor academic freedom. You can be hurled from the Campus solely because he does not measure up to the standards required to teach there. All else is merely obfuscation.

Nathanael Nerode

For the benefit of professors, who know what the three grounds for removal of tenure are:

The memo probably proves Yoo guilty of *malfeasance*. The standards for that are not that he has been convicted of a crime of moral turpitude in a court of law; it is merely that he has committed a crime of moral turpitude. Since the facts are not in question, the faculty is quite capable of deciding whether he has committed such a crime; it seems to me that the memo proves moral turpitude.

The memo, thanks to its disregard for legal reasoning and principles, is the equivalent of substandard research which would fail peer review. So it also makes it very likely that he is guilty of *misfeasance*. That would have to be investigated (should he teach his students "don't do what I did with this memo", he might not be guilty of misfeasance).

Professor Diamond might want to consider this. Tenure is a good system, but it remains essential that malfeasance, misfeasance, and nonfeasance hearings be used when appropriate -- and this case of gross moral turpitude surely qualifies. Is there anything more immoral than torturing innocent people?

Nathanael Nerode

Urrgh, Professor Drummond, I should have said. Brain-fade city.

George Darroch

If no action is forthcoming from the university, and they refuse to investigate the conduct of your colleague, it seems you may have to consider what action on your part is appropriate. Whatever you do, I hope you have the support of other faculty members.

William Jensen

Hey, I don't know about all the machinations of Mr. Yoo and others as to who said what, but at the end of the day Mr. Yoo drafted a memo that approved torture and furhter embarrassed himself and the University in his Senate testimony. I've seen high school graduates do a better job in answering questions. He's just another example of a highly educated person who isn't too smart or morally sound. Evidently, those kinds of people can get jobs in California's educational system.

Christopher Lee

Dear Brad,
as fellow faculty member of UC, I too am deeply disturbed by the John Yoo case, and wanted to give you a perspective on how misconduct allegations would be approached in the sciences.

The core principle of handling scientific misconduct cases is that any allegation of significant misconduct MUST receive a careful and fair official investigation to determine the facts of the case. Anything less would undermine public confidence in the entire system of research. For example, funding agencies like NIH require us to take our graduate students through very thorough ethics courses in which we go through example scenario after example scenario to analyze the ethical issues involved. I can tell you as a matter of course that the right answer presented in any of those example cases where there is an allegation of significant misconduct is that the university must investigate to determine the facts of the case. Obviously the possible outcomes are 1. the allegations are contradicted by the total evidence, and the committee clears the "defendant" of any allegations of wrong doing; 2. the evidence is insufficient to ascertain definite wrong doing, so no action is taken; 3. the evidence verifies some or all of the allegations, and the university must determine appropriate actions. Equally obviously, in evaluating the evidence the assumption is always "innocent until proven guilty." I'm not certain of this, but I think outcome #3 is pretty unusual -- much of the time the outcome is #1 or #2 ("not guilty"). And this highlights one of the principal functions of the "always investigate" policy: it clears the innocent of any lingering shadow of suspicion caused by the initial allegations.

Investigating a misconduct allegation is just Standard Operating Procedure. Those who say that opening a fact finding investigation cannot be considered because to do so would be "defamatory" to Yoo confess either an absolute ignorance or rude contempt of the university's misconduct policies. Such a violation of normal policy is obviously purely political. If Yoo were a doctor accused of providing medical advice during torture in some politically neutral case (e.g. for some Third World dictator), a misconduct investigation would simply be automatic!

I also want to suggest that the universally recognized policies for handling scientific misconduct cases provide a useful point of comparison for assessing the appropriateness of an investigation in this case. By the way, there are standard textbooks of case examples that we use for scientific ethics courses; I can get you a title if you're interested.

- a scientist's responsibility for ethical conduct does not end outside his/her work in the university. If a faculty member engages in misconduct while consulting for a third party (for example, consulting to a drug company for clinical trials of a new drug), the university still has a responsibility to investigate allegations of misconduct.

- the well established precedent of misconduct investigations provides a "scale of severity" of misconduct which we can compare to this case. Let's start from the "light end" of the spectrum. Example: a scientist is accused of fabricating results, resulting in a misleading publication. Policy: this is a serious allegation, and requires an investigation. Example: a scientist is accused of knowingly publishing experiments and conclusions that are substantially the same as a previous publication, without citation. Policy: this is a serious accusation of plagiarism, and must be investigated. Example: a scientist is accused of withholding some information about possible risks of a treatment to patients participating in a research study. Policy: this could possibly have resulted in human harm, and is an EXTREMELY serious allegation requiring investigation. Example: a doctor is accused of providing medical advice on whether torture of a prisoner can continue ("You can resume now."). Policy: WTF?!?!?! Such a Nuremberg-level accusation is so far off the scale of our misconduct meter as to be unthinkable in a scientific ethics course. Example: John Yoo is accused not of participating marginally in the already ongoing torture of a single prisoner, but of forging the legal justification for launching a policy of torture, to be applied to many, many prisoners. Policy: ??? What this calls for is sober reflection, followed by action.

If the university policy says we must investigate accusations of lesser types of misconduct such as plagiarism, we must certainly take accusations of initiating a policy of torture *at least* as seriously. Equally well, if the university declines to conduct a thorough investigation of Yoo's Torture Memo, it would be hard not to see the diligent prosecution of comparatively "petty crimes" like plagiarism as a bit of a sick joke, rather than justice.

Feel free to post or quote this if you want. And thanks for raising this important issue in the thoughtful but unflinching way that you have.

Yours,

Christopher Lee
Professor, Dept. of Chemistry & Biochemistry
UCLA

crack

I think the proper parallel to Yoo is Ayers. Not in how it should be handled, but the ramifications of it. Ayers was brought into polite Chicago society by virtue of his academic post. Yoo will continue to be a member of polite society as long as he is a member of the Berkley faculty. When he is brought up on war crimes the school would have to defend him since his actions were largely known before he was employed by Berkley.

Nan

Thank you for your leadership on this issue.

dusederd

Brad,
This is a great article by a USC Professor:

Obama’s Torture Loopholes: Prof. James Hill

I wish this school would stand up for honesty instead of politics. Yoo is known for conservativeness whereas most of the faculty at our school (UCB) are not.

Nancy Pelosi admitted today that she knew about waterboarding technique -- she was taken on a top-secret mission to one detainee facility. She was briefed on the technique in 2002 by the CIA and did not object to the procedure. Her only claim (today, despite her retraction that she never was informed) , is that she believed that the CIA would never use this at all. Where is the honesty? Also in the news, over 30 meetings have been identified where top-level democrats were full told what was happening, and have never protested. Holder is only selectively releasing documents.

"The core principle of handling scientific misconduct cases is that any allegation of significant misconduct MUST receive a careful and fair official investigation to determine the facts of the case. " -- Christopher Lee, UCLA

Brad, this above quote is evident. We must proceed with intellect rather than emotion. It appears are congresspersons were in full knowledge, well many of them. Democrats are arguing in light of the tense times, they complied. Waterboarding, according to both sides stopped in 2003. However, the torture loopholes discussed and posted in this threat is of concern. What is out ethics? Do we blame one person or a party, as is the case at this moment, or all parties involved.

AlanDownunder

So don't transgress the tenure thingy - just discipline him appropriately. Denunciation, quarantine from student contact, exclusion from all uni publications and committees, pay review based on quality of work (ok that means he should be paying the uni, but be moderate), official request for the DoJ to provide a solution to the tenure thingy.

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