Best Thought of as an Elbow to the Ribs While He Thinks the Ref Isn't Looking...
Joe Klein, Light-Seer

Virtual Office Hours: John Yoo Edition

On Thu, Feb 5, 2009 at 9:41 AM, wrote:

Dear Mr. Delong,

I am a seventh grade student at High School in Place, and I am working on a project for my critical thinking class. I am preparing a simulation focusing on the controversy over John Yoo’s professorship at Boalt Hall School of Law. I am representing you in this simulation, so in order for me to accurately present your views. I am hoping that you will assist me by answering these questions:

Question: Why should John Yoo’s viewpoints on torture and politics affect his professorship at Boalt Hall?

Answer: Quite possibly they should not. Ernst Kantorowicz resigned his Berkeley professorship during the Cold War on the grounds that his obligation to tell his students what he thought was the truth was inconsistent with the Regents' request that he swear not to oppose the constitution of the United States under any circumstances. There is an argument that a professor's first duty is to state what he believes, and that universities are and should be safe harbors where people of intelligence and expertise can safely state what they believe.

This does, however, raise two further questions:

  1. Should Berkeley Law School have tenured John Yoo in the first place? Some law professors I know say that the shoddy quality of the argument in his OLC memos is powerful evidence that BLS should not have. I don't have expertise to evaluate whether their quality is so low as to make it impossible for him to be an effective teacher of future lawyers and researcher into the state of the law. But I do think that the question is open.

  2. Does academic freedom protect you when you say what you do not believe? In a 2000 article, "The Imperial President Abroad", John Yoo writes that President Clinton exceeded the bounds of his powers as commander-in-chief: "accelerat[ing] disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law" by "render[ing] the War Powers Resolution a dead letter..."; using "troops... not to achieve total victory or to contain the spread of Soviet influence but in order to achieve more limited goals... whose long-term benefits for American security are unclear..."; and placing "American troops... under... non-American... commanders... threaten[ing] that basic principle of government accountability... [for] foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution..." In 2000 John Yoo "believed" that the president's commander-in-chief power was tightly circumscribed--that the president could not even lawfully order an American soldier to obey the orders of an allied commander. In 2003 John Yoo "believed" that the president's commander-in-chief power was plenary and unrestrained: that no matter what orders the president issued soldiers were absolutely and lawfully bound to obey them. It seems that John Yoo does not use "belief" in a normal way--that what John Yoo "believes" at any moment is simply what is convenient for his faction within the Republican Party. Does academic freedom protect a professor who argues not what he or she believes to be the case but what is momentarily convenient for his or her political masters? I think the question is open.

Question: What consequences, if any, do you think John Yoo should receive? If not, why not?

Answer: I'm an academic. In this case, I don't know what the consequences should be, but I do know that I am an academic. And as an academic I think that the natural thing to do when there is an important question that you don't know the answer to is to think about it--collectively. That is what we professors do: we have an discussion, and in the end either people change their positions as the feel the force of different arguments and a consensus emerges or people at least understand why they disagree.

So I think the BLS faculty should have a debate that the rest of us can watch. Do John Yoo's memos at the OLC exhibit such a shoddy grasp of legal doctrines and arguments that he is not capable of being a qualified teacher and researcher? Will the accrediting authorities take action if BLS graduates make arguments of similar quality in their professional careers, taking John Yoo as a model? Or is the BLS faculty happy with the quality of the argument--and happy to turn out students who take the quality of Yoo's arguments as a model for their own future work?

And I think that the Berkeley Faculty Senate should have a debate: Given that John Yoo's "beliefs" about the extent of the president's commander-in-chief power spin about like a weathervane depending on the direction of the prevailing Republican wind, does academic freedom extend to cover his "beliefs"--or does academic freedom only cover you when you advocate positions that you sincerely believe?

Depending on the outcome of those two debates, I think that the consequences for Professor Yoo should then be clear.

Question: Why do you think the Berkeley City Council should have a say in the prosecution of John Yoo?

I don't think I do. I think that the BCC has a right to express its view. I don't think it has the power to remand John Yoo for trial, or to dictate to the university who is on the university's faculty, or to impose sanctions on the university if the university continues to employ John Yoo. I think that this is first of all university business, as well as being the business of any court that takes jurisdiction.

Question: Why do so-called progressive council members who want him terminated, fail to see that such action would violate academic freedom?

Answer: It is not clear that it would. It may be the case that (a) academic freedom does not cover you when you make arguments that you do not believe but are convenient for your political masters, and (b) John Yoo does not believe what he wrote in his OLC memos. If (a) and (b) hold, then terminating Yoo would not be a violation of academic freedom. It may also be the case that (c) terminating Yoo would violate his academic freedom, but that (d) a professional school like BLS has a higher duty than respecting the academic freedom of its professors--a duty to teach its students to be good professional lawyers, and that the shoddy quality of Yoo's legal arguments at the OLC make retaining him a violation of this higher duty to the BLS students.

If either of these is the case, then Berkeley is under an obligation to terminate Yoo. But I don't know if either is. As I said, I think the BLS faculty and the Berkeley academic senate have an obligation to discuss these issues and figure out what they think about them.