Balkinization  

Tuesday, April 22, 2008

Leiter on John Yoo

Sandy Levinson

My colleague Brian Leiter offered an excellent discussion on April 18 of the John Yoo controversy. I must say I find it compelling in explaining why he is indeed entitled to benefit from valuable principles of academic freedom. The same principles that protect Yoo certainly protect any of his colleagues who wish to criticize--indeed, to denounce--him, but not to strip him of his employment at Berkeley.

Comments:

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The attention to Mr. Yoo's freedoms, without deference to the freedom of the people tortured, is continually disconcerting.

If I worked for the administration (call me Mr. Boo) and wrote a memo saying I believe professors can be arrested for views promoting terrorism... and then you found your friends being arrested...

Might you suddenly find Mr. Boo potentially culpable? Don't forget, Mr. Boo's views have always been in line with this. Maybe, well, he never got around to mentioning he believes in a totalitarian police state where people are arrested for dissenting views. Oopsey.

Are ya sure you'll be arguing he acted in "good faith?"

I think you guys would want his head on a platter and would be making the arguments accordingly.
 

IANAL .. but i think the idea that a scofflaw is teaching law at berkley is scandalous.

mr. yoo had to know his "work" at o.l.c. was enabling a scheme to facilitate torture of prisoners entrusted to our care in contraven tion of both US and international law.

108 prisoners in our custody have been tortured to death as a direct result of the faulty opinions composed by mr. yoo and seconded by mr. bybee.

being a literary accessory to multiple homocides shouldn't be a part or parcel of anyones academic freedom.

had the yoo memo's not been written the resistance within the military to the inception of these harsh techniques would have prevented their implementation.

tenure shouldn't shelter such hienous activities.
 

After 9/11 the media would frequently refer to the actions taken by George W. Bush and his Administration as "BOLD." Yoo, too, decided to be BOLD and make his bones as part of the Administration. Finally, public opinion has caught up to the ineffectiveness of Bush-BOLD. Now public opinion is catching up to Yoo-BOLD. Let him keep his stinkin' tenure as the spotlight continuing to shine on Yoo will serve to highlight his torturous ways. Who knows, Boalt may in years to come have a Chair named after Yoo. But who would be willing to be named to sit in it?

(By the way, is Yoo's middle name "Choo"? I noted a 1990s law review article written by a John Choo Yoo. Same person?)
 

Check out a recent post at Legal History Blog describing a new book that includes an article by John C. Yoo on the subject of wartime infringements on civil rights. The other articles may shine a light on John Choo Yoo that we can all chew on.

While the spotlight focuses upon Yoo and tenure, let's not forget others higher up in the Bush Chain-of-Command who may have manipulated Yoo and the rest of us.
 

I take it you're referring to the post in which Prof. Leiter asserts:

Is there 'good cause' for terminating John Yoo? Clearly not. There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct. He has also been convicted of no crime. End of story.

Yet, Prof. Leiter failed to acknowledge that the very University regulations he cites specifically state that those are not the only grounds for faculty discipline (see p. 4).

I appreciate from having read some of Prof. Leiter's published work that he is smarter than I am, and this was only a blog post. And some parts of the argument he makes in that post are probably salvageable. Nonetheless, his post cries out for a correction.
 

I continue to be mystified by the notion that job duties performed in the course of employment outside the university are protected by "academic freedom."

Sounds more like "benefit of clergy" to me.
 

There is nothing to correct. That the regulations countenance other possible grounds for disciplinary action has nothing to do with the Yoo case, since all the colorable allegations (I cover them all in the posting) are related to matters covered by the regulations, and in each instance, there is no case to be made against Yoo. The "other possible grounds" clause of the regulations does not (obviously) mean that it overrides the specific clauses and guidelines; it is meant to encompass serious misconduct not otherwise covered. I am not aware of any instance, at the University of California or elsewhere, where such a clause has actually ever been invoked, but there may be such a case. I am rather confident it looks nothing like the Yoo case.

I must say the breathtaking irrationality of so many of the comments on this subject (I do not mean alkali's question, which is a fair one) is really quite unbelievable.
 

Prof. Leiter writes:

The "other possible grounds" clause of the regulations does not (obviously) mean that it overrides the specific clauses and guidelines; it is meant to encompass serious misconduct not otherwise covered.

I don't think that works. The document says that the examples of potentially sanctionable misconduct provided are not an exclusive list. Your argument is that if some conduct is very similar to one of the examples provided but different in some salient way, it must be treated as implicitly excluded. But if anything, the fact that some conduct is very similar to the examples provided would seem to militate in favor of treating it as also potentially sanctionable. I don't know how else you would read that prefatory comment.

In particular, the document states that the following conduct is presumptively sanctionable:

"Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."

Assume arguendo that Yoo's authorship of the memos and related conduct constitutes criminal activity. It doesn't fall into the category set forth in the document because there is no conviction. However, it is not the case that there is no conviction because (for example) it is uncertain whether Yoo is the author of the memos, or because the crime at issue is too trivial to be prosecuted. Rather, there is no conviction because crimes of this nature are unlikely to be prosecuted by the US government, and I assume that Yoo is probably being careful to avoid from traveling to jurisdictions where he might be prosecuted. I do not see any reason to interpret the document as excluding such crimes from the category of potentially sanctionable misconduct.

I agree that there are some serious questions about the University's capacity to investigate misconduct of this nature, but I don't think that means the University does nothing. I certainly don't see any basis in the document for inferring that where there is an authority with more extensive investigative powers regarding particular misconduct, the University must defer to that authority's resolution of the issue.
 

Leiter says, "That the regulations countenance other possible grounds for disciplinary action has nothing to do with the Yoo case, since all the colorable allegations (I cover them all in the posting) are related to matters covered by the regulations, and in each instance, there is no case to be made against Yoo."

Is this right? The policies cover misconduct such as the following:

***Incitement of others to disobey University rules when such incitement constitutes a clear and present danger that violence or abuse against persons or property will occur...
***Forcible detention, threats of physical harm to, or harassment of another member of the University community, that interferes with that person’s performance of University activities.

The letter of these guidelines refers to the University and its members only, but I have a hard time believing the same obligations don't extend to the wider community. Yoo's activity seems to me to fall precisely in line with these types of misconduct despite the victims of torture not being members of the University community. And none of these provisions require criminal convictions in order to institute disciplinary action.

Suppose I write law journal articles arguing that sexually enslaving young women ought not be a crime. I then take a leave of absence, go to a country without extradition treaties to the US, and set up policies (which others put into place) that lead to hundreds of young women being sexually enslaved. My activity comes to light publicly, and then I return to my post and continue writing/teaching as normal. Are Berkeley's hands tied against taking any disciplinary action against me, must they allow me to continue to teach so long as I don't violate the more narrowly interpreted rules? I didn't do anything I didn't argue for in law journals, I didn't institute the policies personally, whatever criminal behavior I engaged in didn't occur on campus or with members of the University community, and no courts are considering or are likely to consider my crimes. Whether I should be disciplined for writing my articles, by the way, is not in dispute. It's the rest of the activity that worries me.

Likewise, I'm not worried that impeaching George Bush for 'high crimes' will lead to a slippery slope toward impeaching people for sexual peccadillos. I'm more afraid that impeaching someone for sexual peccadillos will lead to an over-cautious approach toward impeaching when there are genuine high crimes at stake.

And I'm not worried that pursuing disciplinary actions against Yoo would lead to an erosion of academic freedom more generally. Rather, I'm concerned that our worries about not wanting to encourage borderline and frivolous disciplinary actions against academics might make us overly hesitant to pursue such disciplinary action cases where we're dealing with 'high crimes' not specifically covered in regulations.
 

JMHO, but I thought that Prof. Leiter's post was very weak and unsupported. I find it surprising that anyone else would agree with it. At the risk of repeating arguments previously made, let me just run through some problems with it briefly.

1. While Prof. Leiter continues to refer to "conviction of a crime", the Berkeley standards are not so limited. The Ethical Principle states, in relevant part, that "“Faculty members have the same rights and obligations as all citizens." (Emphasis added.) Conviction of a crime is then given as an example of a possible violation of this principle. alkali's follow-up post deals with one aspect of this, so I'll limit my comments to another.

Being convicted of a crime is far from the only possible violation of a citizen's obligations, and it's this, I think, which generates so much emotion in the responses.

We have to consider two factors about Yoo's conduct: first, the fact that his obligations arose out of his job duties at OLC to give a thorough analysis of the law. He blatantly failed to do that (see more below). Second, there is the fact that the obligation of every citizen of this country is to avoid giving sanction to torture. That's so fundamental that it's beyond belief that anyone would try to justify it (and I am NOT suggesting that anyone here is). Yoo failed to meet the obligations of a citizen when he countenanced torture.

2. The other relevant ethical principle is that "[Professors'] primary responsibility to their subject is to seek and to state the truth as they see it. ... They accept the obligation to exercise critical self-discipline and judgment in using, extending, and transmitting knowledge. They
practice intellectual honesty."

Yoo signally failed to meet this standard. Again, we have to consider his behavior in context. I've seen several claims that his reasoning was no worse than that seen in many other law review articles. While it shocks me if standards have really declined that far since I graduated law school (1977) -- I'm confident that no journal at Boalt back then would have accepted his memos as articles -- that isn't the relevant test. It's this disconnect between the world of practicing lawyers and non-lawyers, on the one hand, and the world of professors, on the other, which seems to be the source of much of the emotion.

Yoo was not writing a law review article. He was writing a legal memo; indeed, one which he expected and intended would have the effect of an action. It only makes sense to consider his "intellectual honesty" in the relevant context.

That context is that of a practicing lawyer, not a law professor. Yoo was not free to let his imagination run wild; he had an obligation to discuss the law fairly and completely. That's a standard practicing attorneys have to meet every day, so we're in at least as good a position to judge this as a law professor is, and probably a better one.

When we read Yoo's memos, we don't think "is this a challenging intellectual argument which will generate dialogue?", we think "could I have written this memo for a client without committing malpractice?" or even "could I submit this as a brief without violating Rule 11?". There's no doubt in my mind -- none whatsoever -- that the memos fail the standard of intellectual honesty when considered in the context of a memo to a client which purports to set forth the law. They're dubious even under the relatively relaxed standards of today's Rule 11.

This failure becomes more egregious when we consider its real world effect. If I write a memo to a client setting forth the state of the law, the client can act on my advice, but reliance on that advice won't shield the client from criminal or civil liability (for the most part; I'm leaving out some nuance). In Yoo's case, however, he expected and intended that his memo would serve as a "get out of jail free" card. This means that we should apply an even stricter standard of intellectual honesty than we would for the ordinary practicing lawyer. Since Yoo didn't meet that lower standard, he clearly didn't meet the higher one.

Then, too, we return to the cause in which Yoo was engaged. Surely the responsibility for "intellectual honesty" requires more for advice that it's permissible to commit a rape than for advice that it's permissible to dodge a tax law.

I understand and respect the devotion to academic freedom demonstrated by the professors here. That's an important value and the protections it offers to professors should be taken seriously. Despite the sometimes strong rhetoric, I don't read the comments here as calling for Yoo to be flayed alive without a hearing (though poetic justice does have some appeal). I do read them as recognizing that the allegations are serious enough to warrant an investigation by Berkeley. I agree with them.
 

"I must say the breathtaking irrationality of so many of the comments on this subject (I do not mean alkali's question, which is a fair one) is really quite unbelievable."

Obviously you don't read this blog very often. :)
 

I guess I'm still confused about how writing a memo for a client fits under the banner of academic freedom. There is nothing academic about it.

The fact that Yoo argued issues of constitutional law in his memos doesn't make his work academic, else any appellant lawyer would be an academic. Likewise, his status as a professor cannot turn otherwise commercial (admittedly the word is not quite apt in this context) work product into academic output. So where is the academic freedom issue?

Perhaps the question should be whether a university can/should fire a professor based on arguably deplorable legal opinions rendered for an outside client who relied on those opinions to commit terrible crimes.
 

Perhaps academia should consider in structuring tenure agreements/arrangements a form of the "morals clause" that is used in professional sports agreements permitting termination of the athlete's contract in order to protect the image of the institution. The fairly frequent revolving door between academia and government might trigger a question of morals during government service, as with torture. One might ask Boalt to consider the impact of Yoo's OLC service and his torture memos upon its image. I wonder what might have happened at Harvard if Kissinger had returned to his tenured faculty position there, especially if there then had been known some of his activities that were kept secret for such a long period of time. More and more may come out about Yoo that might reflect upon Boalt's image.
 

If Professor Leiter's point is that Yoo should not lose his position because he has not been convicted of a crime and has not otherwise demonstrated his lack of fitness to teach law, then so be it. What I do not understand, however, is why Leiter then proceeds to launch into a defense of Yoo. He writes, "it is very far from clear that Yoo is legally culpable for anything he has done. In the tax context, for example, the standard for prosecuting tax lawyers who give tax advice to clients which the clients then act on and which is subsequently found to be illegal conduct is whether the advice was given in "good faith" . . . Both before and since his years as a government attorney, John Yoo has defended views about executive power that are the same as, or closely related to, those in the torture memo. He seems to hold these views in "good faith.""

I almost do not know where to begin. First, the torture memos were not based solely on claims on executive power. When one claims, as Yoo did, that US interrogators can claim self-defense if ever called into account for torturing detainees, that claim has nothing to do with executive power and in any case is contradicted expressly by the terms of the Convention against Torture. So there is certainly an argument to be made that Yoo's advice in some contexts was not in "good faith."

In addition, the "good faith" standard would certainly be irrelevant in determining whether Yoo was complicit in torture by a court outside the United States. After World War II, the lawyers in the German Justice Ministry were prosecuted for implementing and carrying out the Nazis discriminatory laws. They did not have a "good faith" defense - indeed, what they did was consistent with German law. If Yoo truly believes that under US law it is perfectly permissible to waterboard detainees and alike and encouraged policy makers to implement such tactics, a court that viewed waterboarding as torture would hardly think his views on waterboarding at all relevant to his complicity in torture, particularly given that Yoo knew such actions would fly in the face of international law norms.

Surely it should be possible to defend academic freedom without creating illogical defenses for Yoo's conduct.
 

"I must say the breathtaking irrationality of so many of the comments on this subject (I do not mean alkali's question, which is a fair one) is really quite unbelievable.

# posted by Brian Leiter : 10:27 AM


what i find breathtakingly irrational and unbelievable is the fact that 108 persons in US custody have died.. many of which cases are being investgated as homicides .. as a direct result of the legal hackery composed by professor john choo yoo .. and the learned professor here tells us it's irrevelant and bears no meaning whatsoever... that an accessory to mass murder is prefectly acceptable as a fellow professor of "the law" ..

as a simple minded layman i apparently lack the keen intellect required to NOT connect the deed with the results of that deed.

please pardon my uncouth heatheness...and i sincerely apologize for having upset your tender sensibilities... the vision of a stack of 108 battered and broken and brutalized human bodies temporarily affected my higher judgement.
 

Some brief comments by way of reply to a few questions/comments that are not already addressed in the post to which Sandy linked:

1. Rich's hypothetical, about the academic proponent of sexual slavery who turns practitioner outside U.S. jurisdiction, is an interesting one, but under the University of California rules (which strike me as sound ones), there is nothing for the university to do. I think Rich is a bit too cavalier about the 'slippery slope' worry. As I noted in my posting, most persecution of faculty in the U.S. comes from the right and is directed at those on the left, since the U.S. is a fairly right-wing country, at least as developed democracies go. The existing rules have done reasonably well, at least since the McCarthy era, at insulating universities from these kinds of abuses.

2. Milan is making assumptions about the standard under which Yoo's conduct should be evaluated with respect to its possible criminality that do not, as best I can tell, have any basis in American law. Tax lawyers advising clients to engage in conduct which turns out to be illegal seems the closest case in the American context.

Mr. Field was, I'm afraid, one of those I had in mind in commenting on the sheer irrationality of some of those weighing in on this subject, by which I mean their inability to respond to arguments, acknowledge evidence, etc. But I will make one comment: does Mr. Field *really* believe that "no doubt in [his] mind" is the relevant standard for whether or not a tenured faculty member should be disciplined? Hubris is probably not the right word for this idea.

As MLS says, it is true I do not real blog comments a lot.
 

jkat's posting and mine crossed paths in Cyberspace. I would advise jkat to read the final paragraph of my post on Professor Yoo:

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

The torture and wrongful detention of prisoners are the least of the crimes of the Bush Administration, when compared, say, to the criminal war of aggression against Iraq. Unfortunately, for all the reasons I have rehearsed at some length, there is nothing that the University of California can or should do about this.
 

Mark Field:

When we read Yoo's memos, we don't think "is this a challenging intellectual argument which will generate dialogue?",....

In particular since they kept it Tippy-Top Sooper-Dooper Secret....

Its intent was not to stimulate academic discourse, but to put a patina of "legality" on abhorrent (and illegal) actions (and to talk those that - rightly - were having misgivings about these acts into knuckling under and performing them).

Cheers,
 

Mark,

I think your comment is one of the more convincing comments on this subtopic of the Yoo affair.

The particular strength (for me) is the idea that practicing lawyers are more qualified than laymen such as myself or even law professors in recognizing when a product fails to meet the standards expected and demanded in that situation.

If it is a blatant and obvious failure to meet those standards, then certainly action of some sort is warranted.

One might have to rely on the ius cogens nature of the ban against torture to get around the time limits imposed by the code of conduct: "No disciplinary action may commence if more than three years have passed between the time when the Chancellor knew or should have known about the alleged violation of the Faculty Code of Conduct and the delivery of the notice of proposed disciplinary action."

Given that petition attempts to have Yoo resign started at Boalt in May, 2004, the statute of limitations in the code would seem to have run out, unless the Chancellor can plead ignorance.

Or would the clock start ticking at the declassification of the memo?
 

Is there 'good cause' for terminating John Yoo? Clearly not. There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct. He has also been convicted of no crime. End of story.

Leiter, like virtually all of Yoo's defenders in the tenure debate, blithely say "Yoo has been convicted of no crime. End of story." Really?

Just to pick a notorious example, OJ Simpson was never convicted of a crime. Does Leiter really think his actions wouldn't have violated Berkeley's tenure rules?

More importantly, because of prosecutorial discretion, the broad grants of criminal immunity given in this "war on terror," the possibility of pardons, it's likely that many criminal acts relating to conduct of members of the Bush admininstration will never see the light of day. Does Leiter really think that such criminal acts, absent a conviction, don't violate a tenure policy?

Seems hard to believe.
 

Professor Leiter:

Has Berkeley School of Law ever revoked tenure and fired a professor for any other ground apart from those which you have cited?

Indeed, have you or any other professor of law ever heard of a law school revoking tenure and firing a professor for drafting a memorandum of law outside the school?

Thanks in advance.
 

does Mr. Field *really* believe that "no doubt in [his] mind" is the relevant standard for whether or not a tenured faculty member should be disciplined? Hubris is probably not the right word for this idea.

You've mis-stated my comment. I was giving what amounts to an expert witnesses' opinion about the standard applicable to legal memos. Yes, I am qualified to do that, and yes, assuming I'm so qualified and that that is the proper context, such evidence would be admissible regarding the standard.

I'll add that I'm far from the only lawyer who has given such an opinion. In particular, Dilan -- who's probably even more qualified than I am to opine on such matters -- has given extensive reasons in support of such a conclusion which I didn't repeat, but which I would repeat and supplement if I were actually testifying as an expert.

I'd also note that a number of law professors have given similar opinions. Here, for example, is Jack Goldsmith:

"I was briefed on some of the most sensitive counterterrorism operations in the government. Each of these operations was supported by OLC opinions written by my predecessors. As I absorbed the opinions, I concluded that some were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president. I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on a severely damaged legal foundation."

Some others: Steven Griffin ("Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert")*, Scott Horton ("Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution."), Marty Lederman ("The arguments are simply implausible, radically incomplete, and dishonest.").*

If anyone is interested in my views, I've made additional posts in this Volokh thread.

Or would the clock start ticking at the declassification of the memo?

Good question. I'd like to know more about how Berkeley has treated other cases in the past on this issue. It's important to me that Yoo receive the full due process protections established by the Berkeley rules.

Just speaking generally, the usual application of "should have known" means that the person was in a position to know all of the material facts. Here, I don't think that was true for Berkeley in 2004. In fact, I'm not sure it's true even today. There are many facts we don't know: what was Yoo told about the purpose of his memo; who did he understand would act on it; did he know about prior incidents of prisoner abuse; was he in fact told (as Scott Horton says) that his theories were untenable; etc.

Because of the classified nature of the situation, it's hard to know if an investigation even now could develop the full factual background. In my view, Berkeley should begin the investigation precisely in order to consider whether it has or had enough facts available to act.

I think your comment is one of the more convincing comments on this subtopic of the Yoo affair.

Thanks. All the more meaningful coming from one of the most thoughtful commenters here.

*I note that at least some of those whom I've quoted are nevertheless on record against Berkeley taking any action.
 

i certainly agree with professor leiter in the conclusion that the outrage of torturing prisoners in our custody is only one of the many transgressions of the law for which the bush administration is certainly culpable.. and certainly the initiation of aggressive war against iraq is one of the highest magnitude...

and while it might well be that under the regulations in effect at UC Berkley the university's hands are effectively tied as to sanctioning professor john choo yoo for his actions taken at O.L.C. ...i do not value john yoo's livelihood and liberty more highly than the lifeblood and existence of 108 human being who will never again have either livlihood nor liberty as a direct result of mr. yoo's distorted interpretation of the law...

what professor yoo did.. imo .. was to draw a roadmap for the perpretrators of torture to skirt culpability for the commission of homicide ..and such an act should be viewed .. by anyone associated with the law ..as a serious enough breach of the professional canons of the legal profession to be rightfully deserving of condemnation ..

it is one thing ..imo .. to explain why UC Berkley is powerless to act ..and quite another to appear to excuse and defend the results of his legal omissions ..

i'm gratified to find here that not all lawyers nor all law professors feel compelled to defend the indefensible segments of mr. yoo's convoluted legal reasoning ..

i find myself very much in agreement with seth and mark fields.

perhaps nothing can ever be done in the formal legal sense of having mr. yoo stand in the dock for his complicity in the torture and suffering and deaths of so many .. but that should not .. imo .. excuse us from a general moral condemnation and a repudiation of the results of his handiwork ..

and thank you all .. i learn a lot simply reading along in these discussions.
 

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BL, who the leaders of this blog admire so much, in regard to ML and some other comments seems to confuse disagreement with irrationality and failure to respond to argument.

I can say much more, but others are doing things fine, so I won't.
 

so that i make clear for those who have seen my post on a previous thread, i note that my defense of prof. graber does not mean i believe that john yoo should be allowed to teach at boalt or anywhere else for that matter.

i am not familiar with the exact language of the honor code at boalt, so i am not in a position to claim that mr. yoo should be brought on charges of violation of the code. i presume there is an honor code. clearly, an investigation should be conducted to see if mr. yoo's conduct has violated the code, at the very least.

as for whether or not tenure should protect mr. yoo's job, i would simply observe that the grant of tenure may make his employment status inviolate until such a time as he is either disbarred, convicted, etc. it would seem to me, however, that boalt could very well maintain him on the faculty while not assigning him any classes to teach and refusing to publish any of his works. it would also seem prudent to allow him the opportunity to voluntarily resign his position with some dignity; however, with this bunch (referring to the bush crowd), i highly doubt that the man has it in him.
 

Yet again, another argument that this war criminal, who should be rotting in prison, should instead be teaching impressionable young minds the principles of constitutional law.

It is true that he has been convicted of no crime, but that he has not even been charged is a serious miscarriage of justice. Trying to make this about something as piddling as tenure seems rather myopic.
 

It's pretty remarkable that Leiter, despite many opportunities, does not seem to have made ANY response to the most telling objection to his argument - an objection I've raised above & elsewhere, and that Mark Field has put very well above.

Leiter writes that academic freedom protects "content of their scholarship and teaching."

Yoo's memos produced in the course of his OLC employment are neither "scholarship" nor "teaching." When I write a memo for a client, it isn't scholarship. (Literature, perhaps, but not scholarship.)

That goes to the heart of the objection to Yoo -- his professional incompetence (or worse), and whether Boalt can and should investigate whether an incompetent lawyer should be teaching future lawyers.

Ah, but Leiter thinks that's an "irrational" concern. Invective will have to serve him in the absence of argument, I guess.
 

Professor Leiter,

Would your analysis change if there were video tape of Yoo actually torturing people?
 

Sandy,

Would your opinion change if there were videotape of Yoo torturing someone?
 

Anderson: your point was already addressed in the post to which Sandy linked. Perhaps the confusion results from the fact that Sandy has framed this as being only about "academic freedom," though that is certainly a significnat factor here. But so too are the legal rights that attach to tenure and its revocation, quite apart from academic freedom. (You know too that "irrational" is quite mild by my standard of invective! But I do feel it is a failure of rationality when people repeat claims and arguments that have, in fact, been addressed.)

Garth Sullivan: my opinion on the Yoo case would change in the scenario you describe, but so too would the legal status of his conduct. If it didn't that would give me some pause, and we'd have to flesh out the hypothetical.

Regarding O.J. Simpson: he was found civilly liable for wrongful conduct, which should surely be sufficient to trigger university disciplinary proceedings.
 

Anderson: your point was already addressed in the post to which Sandy linked.

Alas, my irrationality is so far advanced that I didn't find that issue addressed anywhere in the linked post.

Professional competence was mentioned, but only in the context of scholarship and teaching.

"Research misconduct" does not address the issue; the comparison to law review articles demonstrates my point. However bad an article may be, its author does not have a professional duty to its readers to present a balanced view of the state of the law on its topic.

It's that professional context that makes the notorious omission of Youngstown, for instance, not merely shifty or dubious, but legally incompetent.

So, sorry; but merely claiming that an issue has been addressed is not the same as actually addressing the issue.
 

Just a datapoint, and I realize that this may be orthogonal to academic issues surrounding Yoo, that Bill Clinton was still disbarred after being acquitted.
 

Anderson's response to Brian Leiter reminds me of discovery and trial experiences of long ago, when my opponent would frequently object to my questions to witnesses: "Asked and answered." In many of these instances, it had not been asked nor answered. So it would be necessary to challenge the objection. Anderson has challenged the objection. I now await a Leiter moment.
 

What are "these kinds of absuses?"

Leiter says, "The existing rules have done reasonably well, at least since the McCarthy era, at insulating universities from these kinds of abuses." But the prohibition on torture is as close to a universally accepted moral and legal norm as there has ever been, and in this regard is nothing like "being a communist" (and so posing a moral threat to the community) and quite unlike calling workers in the Twin Towers "little Eichmanns" (and so being, allegedly, unpatriotic).

If talking about "abuses" Leiter means to include disciplinary proceedings designed to investigate torturers, slave holders, murderers, and their enablers, then he is begging the question rather than defending his view. Whether this is "abuse" in such cases is precisely what is at issue.

The situation we're dealing with in Yoo's case is different in kind from than the sorts of intellectual threats academics are typically (and yes, abusively) disciplined for in the McCarthyish way. And that Leither rightly wants to defend strong rules prohibiting institutions from punishing professors for ideas is wonderful. But as others have said, this just isn't that kind of case. And as I've emphasized, the kinds of actions Yoo would be investigated for come as close to being universally recognized and absolute prohibitions as you're ever likely to find.

This is why I'm (in Leiter's terms) "cavalier" about slippery slopes when it comes to initiating disciplinary action against Yoo. The slope aint slippery at all when it comes to putting one's foot down against torture. I'm not worried that next thing you know we might be asking Universities to investigate whether they ought to retain (unconvicted) murderers and (unconvicted) slaveholders and (unconvicted) torturers (and their enablers). To say that (allegedly) doing one of these things warrants public institutions in beginning proceedings designed to determine whether disciplinary action is appropriate is to recognize that Universities serve the public and are responsible to it in various ways, and it is not inappropriate to hope that they (and other institutions) will stand up for core, universally recognized human rights. Not standing up for such rights is a normative stand in itself -- the wrong one.

Nor have I seen an argument that concern for such wider issues as basic human rights isn't covered in Berkeley's various rules and regulations regarding disciplinary action. So my argument isn't based solely on a view about Universitys' responsibilities to stand for something -- not least to stand against grave human rights abuses and abusers. It's also an argument that such concerns are already well within the scope of their own policies so long as we don't construe those too narrowly and legalistically. There are, it seems to me, "moral ideals" clearly present in Berkeley's policies (e.g., in their prohibition against violence against community members), and that Yoo violated those ideals seems at least clear enough to warrant investigation.

So I offer two arguments for instituting hearings re: Yoo's tenure. One is a generalized argument regarding institutional responsibility: not taking a stand on grave human rights abuses is taking a stand, the wrong one. Institutions have a responsibility to act on such issues in relevant cases, and having a professor plausibly involved in grave war crimes makes these issues relevant to Berkeley. And the second is more specific to Berkeley's regulations: they aren't so narrow that they don't (implicitly) cover actions in contravention of basic human rights.
 

I took the issue to be subsumed under the question of his professional competence. But perhaps I should add this objection explicilty to my post, though I confess it struck me as so obviously silly as to seem beside the point.

There is no evidence that Yoo is an incompetent lawyer; indeed, the evidence that he is quite competent is overwhelming: his education, his clerkships, his professional experience, his teaching experience at Berkeley and other law schools, his professional scholarship. On the other side is the memo. Even if Anderson believes that it is grounds for disbarment (or whatever) to fail to cite the case that Anderson (or whomever) believes decides the issue, none of this warrants any finding of incompetence. He was more advocate than neutral advisor on this issue; that is not incompetence. It is bad lawyering.
 

Professor Leiter:

If you care to peruse the other threads here at Balkinization concerning Yoo's memorandum, you will discover that many who post here are really arguing that Professor Yoo should lose his profession and academic position because he is guilty of thought crimes.

There is little to no serious effort to offer legal authority challenging most of the legal opinions offered in Yoo's memorandum of law.

Rather, it is uncritically assumed that Professor Yoo's efforts are uniformly incompetent and without merit.

There is no serious effort at all to offer evidence that Yoo either committed or entered into a conspiracy to commit actual statutory "war crimes."

Rather, it is simply assumed that Yoo must either be a war criminal or "enabled" war crimes.

Arguing rationally in the face of this lynch mob mentality is not going to get you very far. Indeed, I am a little surprised that you have not been called a Nazi yet for daring to defend Professor Yoo's academic freedom. However, the day is not finished yet...

Good luck and God speed in your efforts.
 

"Bart" DePalma says:

Indeed, have you or any other professor of law ever heard of a law school revoking tenure and firing a professor for drafting a memorandum of law outside the school?

"Bart" would like to pretend (or, more accurately, foist off as the topic of discussion, in an attempt to distract, dissemble and obfuscate) that this is the gravamen of the complaint. It isn't. No one here has suggested that anyone lose tenure "for drafting a memorandum of law" (and that's a good -- albeit obvious -- thing). It's just as remarkable as asking whether someone should be convicted of murder "for discharging a gun".

Cheers,
 

Even if Anderson believes that it is grounds for disbarment (or whatever) to fail to cite the case that Anderson (or whomever) believes decides the issue, none of this warrants any finding of incompetence. He was more advocate than neutral advisor on this issue; that is not incompetence. It is bad lawyering.

Well, bad lawyering is on a continuum with incompetence -- I think most *practicing* attorneys would agree.

So if it's a question of degree, then I don't see the validity of arguing categorically that Boalt should not investigate whether Yoo is, in fact, incompetent, and if it so finds, revoke his tenure.

What Leiter is arguing here is the equivalent of a 12(b)(6) dismissal -- failure to state a claim. That's a high burden to meet in the courts, and though it's only an analogy to Boalt's rules and processes, I think it's a high burden to meet in the present case.

As argued in this space and elsewhere, law is not simply an academic subject. It may seem so to Professor Leiter, whose C.V. seems to disclose about a year's worth of time as a practicing attorney. But it is not.
 

and God speed in your efforts.

I am not sure that I find that funnier than Prof. Leiter will.

But please be specific, Bart -- which deity's benevolence are you calling upon here?
 

"It is bad lawyering."

tell that to the families of those who have been tortured to death or had their minds destroyed as explicitly contemplated by Yoo and others...

what's unique about this case is that the facts are fairly conclusive as they stand now.

the plain text of that memo coming from OLC pursuant to the admitted timeline constitutes a war crime. nor has yoo's subsequent comments done much to place them in a more flattering context.

war crimes are the elephant in the room, not crackpot theories and a pedigree that only goes to show you can lead a horse to water but you can't make him think.

berkeley has an obligation to determine whether or not yoo is a war criminal and revoke his tenure if so finding - regardless of whether action is taken by any other party.
 

There is likelihood congress will discover more about the martial law like workgroup in which prof. Yoo participated, creating new information which might increase risk for others besides Yoo in courts. There are protections for employees of government to shield them from mundane prosecutions but vigorous congressional memorializing of how it was our country became a state sponsor of torture could pry that screen away from Yoo and companions.

It might be interesting to compare how countries to which the US sent prisoners for torture construct their laws to allow the practice and even "justify" it; to examine whether some of those nominal democracies have codified physical and mental abuse as reflections of their national character and aspirations.

It is important to examine the work Yoo penned in those humanitarian terms rather than stipulating that because he did it for a martial law dictum's rationalization it is immune from adjudication.

I think educational administration often views its goals and scope in wider terms than our parsed communities and segmented departments of government, and Yoo's leap to transgress many of the bounds of ordinary academic merit will elicit administrative utilization of those supraacademic axes of reference in evaluating his tenancy in a US college environment.

I have read that in some foreign legislatures it is a frequent occurrence that members interrupt verbal pyrotechnics to engage in physical fisticuffs. There are societal differences in personal value systems. I suspect Yoo brings some of those flavors to the US context, but they are exogenous to our systems both educational and governmental.

There was a recent Congressional Quarterly article April 2008 by Stein which referenced a US agency guidebook to torture predating by decades Yoo's work; so, in a sense it is foreseeable that as a servant in the department of justic section charged with daring interpretations of law to help the president reach for all the power he wants, Yoo might have felt well within the bounds of US traditional law; however, too many experts at law have panned those of his memos that have appeared as yet in public on precisely the basis of incompleteness or servility.

There are many currents here, some of them rip tides aimed at his career. Certainly he could do well outside of his current tenured post if dismissed. And the humanitarian disregard which he helped shape will be seen as an extraordinary condition inextrapolable to other politicized disputes regarding tenured profs in the future.
 

It's that professional context that makes the notorious omission of Youngstown, for instance, not merely shifty or dubious, but legally incompetent.

I'm sure law professors believe that their publications, classroom work, etc. demonstrate their competence to act as lawyers. The actual standard for malpractice, however, is NOT whether the lawyer is well-educated or clerked for somebody or has written good law review articles. It's not even whether that lawyer is generally comptent. It's whether the specific action of the lawyer fell below the standard of care for practicing lawyers in the community.

Let me add, though, that Berkeley's test (one of them, anyway) is not professional malpractice, it's "intellectual honesty". Failure to meet professional practice standards can create an inference of dishonesty, but other facts are important as well: how far below the standards the act fell; the context; etc.

In order to reach the issue of "intellectual honesty", Berkeley would have to decide what professional standard to apply and what inferences might be drawn from that. As I indicated above, I personally believe Yoo fell below the standard of practice for attorneys in private practice. Since I believe attorneys at OLC should be held to a higher standard, a fortiori Yoo failed to meet that higher standard.
 

Q. Prof. Leiter, would your opinion change if there were videotape of Yoo actually torturing?

A. My opinion on the Yoo case would change in the scenario you describe, but so too would the legal status of his conduct. If it didn't that would give me some pause, and we'd have to flesh out the hypothetical.


If it is illegal to torture, why is it not equally illegal to adopt a radical view of the constitution that allows the president to authorize it, knowing he has already done so and in violation of several longstanding laws?

According to your view, would Yoo not be protected for torturing according to his own memo or is it a crime only to rely on it, but not write it?

If torture is not legal, what was the point of Yoo's memo?
 

anderson:

It's that professional context that makes the notorious omission of Youngstown, for instance, not merely shifty or dubious, but legally incompetent.

In which opinion offered in his memorandum do you contend that Yoo erred in not applying Youngstown?
 

Brian Leiter:

He was more advocate than neutral advisor on this issue; that is not incompetence. It is bad lawyering.

My turn to be "irrational". I was of the opinion that bad lawyering was "incompetence". Or did you mean "bad lawyering" in the sense of not wearing a tie to court? Let's be specific as to what the "bad lawyering" actually consisted of.

In this case. it almost certainly exposed those that relied on the "bad lawyering" to the threat of criminal prosecution (well, in theory, anyway, despite AG Mukasey's refusal to actually investigate and/or prosecute any illegalities of maladministration principals; see also here).

And it resulted in the assault and battery at the very least, and probably torture (and possibly murder) of detainees. Basically, Yoo gave the legal "go-ahead" to the so-called "enhanced interrogation techniques", which were then used on actual humans. That's some "bad lawyering"....

BTW, your "good faith" defence for tax prep lawyers is hardly an adequate defence. There is a difference between those offences that are malum prohibitum and those that are malum in se. Not to mention, the "good faith" defence rests on the legal argument or stance being a plausible (or at least not clearly erroneous) take on the law, even if in the end, the courts rule otherwise. But here, where the thrust of the memorandum is to give a "pass" to a malum in se crime, and the 'scholarship' is so shoddy, and is purposely so in pursuit of that aim>, we have a slightly different situation.

Cheers,
 

Mark Field:

Failure to meet professional practice standards can create an inference of dishonesty, but other facts are important as well: how far below the standards the act fell; the context; etc.

Speaking as a (soon to be ex-)academic, the standard of "intellectual honesty" you have in mind here is far broader than the offense envisioned by Berkeley's tenure regulations. By "intellectual honesty" they no doubt mean things like plagiarism and forged data-- in other words, misdeeds directly related to the academic research a faculty member undertakes under the implicit sponsorship of the university (through their grant of tenured employment).

Perhaps this state of affairs is for better or for worse. Perhaps tenure in law faculties should rest upon the standards of professional practice you have in mind, since (as Anderson said above) law is a practice, not an academic subject. Berkeley's regulations, however, are university-wide, not tailor-made for the law faculty. Also, no tenure regulations at any institution I know of personally take such a broad conception of intellectual honesty as the one you describe. Personally, I share what I take to be Brian Leiter's fear that such a standard would open the door to even more manipulation of academic faculties for far lighter reasons that in the case of Mr. Yoo, most of it from the political right.
 

Rich:

So I offer two arguments for instituting hearings re: Yoo's tenure. One is a generalized argument regarding institutional responsibility: not taking a stand on grave human rights abuses is taking a stand, the wrong one. Institutions have a responsibility to act on such issues in relevant cases, and having a professor plausibly involved in grave war crimes makes these issues relevant to Berkeley. And the second is more specific to Berkeley's regulations: they aren't so narrow that they don't (implicitly) cover actions in contravention of basic human rights.

Good question. Should Alstotter have retained his tenure if he was on the Berkeley faculty?

Cheers,
 

It's just as remarkable as asking whether someone should be convicted of murder "for discharging a gun".

Bart tries that one every time, and it never works. Can't figure out why.
 

Brian Leiter:

There is no evidence that Yoo is an incompetent lawyer; indeed, the evidence that he is quite competent is overwhelming: his education, his clerkships, his professional experience, his teaching experience at Berkeley and other law schools, his professional scholarship....

Oh. So his "shoddy scholarship" in the memos was deliberate? Who wouldda thunk it....

Cheers,
 

anderson:

Care to tell us in which opinion offered in his memorandum do you contend that Yoo erred in not applying Youngstown?
 

arne langsetmo/anderson:

"Bart" DePalma says: Indeed, have you or any other professor of law ever heard of a law school revoking tenure and firing a professor for drafting a memorandum of law outside the school?

"Bart" would like to pretend (or, more accurately, foist off as the topic of discussion, in an attempt to distract, dissemble and obfuscate) that this is the gravamen of the complaint. It isn't. No one here has suggested that anyone lose tenure "for drafting a memorandum of law" (and that's a good -- albeit obvious -- thing). It's just as remarkable as asking whether someone should be convicted of murder "for discharging a gun".


Until someone offers legal authority demonstrating that Yoo's legal opinions are "incompetent" or offers evidence providing a prima facie case that Yoo's memorandum constitutes an actual criminal offense under the US Code, Yoo is being persecuted for one thing and one thing only - writing a memorandum of law with which his critics disagree.
 

Bart, I don't have time to pull a specific passage out of the memo today -- I am teaching the local clerk's office how to issue a summons, it seems -- but I do have Mayer's article on Mora bookmarked, which is where we see how Yoo distinguishes Youngstown:

In an e-mail response to questions this month, Yoo, who is now back at Berkeley, defended his opinion. “The war on terrorism makes Youngstown more complicated,” he said. “The majority opinion explicitly said it was not considering the President’s powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States.” He also argued that Congress had ceded power to the President in its authorization of military force against the perpetrators of the September 11th attacks.

Not that you/Yoo would feel the need to apprise your client of this novel theory, of course.
 

Until someone offers legal authority demonstrating that Yoo's legal opinions are "incompetent"

Uh, no. There is no legal authority as to whether the Yankees are a better team than the Red Sox, and there's no legal authority as to whether a lawyer is "incompetent" in this sense. It's not a determination for the courts to make.
 

I don't understand this. Either criminal behavior & gross acts of misconduct are irrelevant absent conviction, or they're not. You can't argue that Yoo's lack of conviction makes war crimes allegations irrelevant, & then argue that mere civil liability is enough to trigger proceedings if it's O.J. Simpson, & an actual video of torture might change your view--well, I guess you can, because you just did, but it's not honest, consistent, or persuasive. Either there's a bright line rule, or there isn't.

Saying that video evidence would change his legal status is another dodge, which gives the Bush administration entirely too much credit: we know for a fact that the Department of Justice has refused to prosecute people despite clear evidence of their personal involvement in the torture of prisoners. Look up Jane Mayer's work on Mark Swanner, for example. Note also that any prosecution for a technique that Yoo authorized might be impossible, video evidence or not. If you're going to take a position that evidence of complicity or participation in murder, torture, rape, etc. is simply irrelevant to tenure if there's no conviction, then I don't see why O.J. or Mark Swanner or any other number of unconvicted people who we know are implicated in awful crimes are in any different a position than Yoo. If you're conceding that that's not the standard, then you should probably explain what it is.
 

Anderson:

Yoo is of the predicate opinion that the President's CiC power over the battlefield (including determining the treatment of POWs) is plenary. Therefore, there is no particular reason why he would apply the Youngstown balancing test meant for cases where the power of the Executive and Congress overlap. Yoo's position is not incompetent, but rather differs from your's and mine.

Given that Congress has the express power to set rules for Captures, I disagree with Yoo's predicate opinion and contend that setting rules for the treatment of POWs is an area of overlapping power.

If Yoo agreed with my position, he would most certainly have cited the Youngstown balancing test on behalf of the President departing from congressional statutes on the basis of the overriding need to protect the nation.

IMHO, the Youngstown balancing test is a legal fiction created by a single justice with a history of arguing for expansive Executive power to provide the President with a basis for arguing that he has the power to depart from Congress' statutes.

When Congress and the President differ on the treatment of POWs, I would contend that Congress' enumerated specific power to set rules for captures always trumps the President's general CiC power. There is nothing to balance.
 

Bart ... god, why do I even try? ... the point has been made so many times ...

The issue is not what Yoo's "predicate opinion" was.

The issue is whether Yoo was obligated to explain to his client that other opinions, contrary to his own, were arguable and might ultimately prevail in court.

Given your own disagreement with Yoo, you can certainly agree that the disagreeing position was a sufficiently plausible one that Yoo would need to take it into account, if he was providing honest, balanced advice to his client.

Virtually any serious memo on a disputed or unclear area of law is going to have to weigh different legal outcomes.

You and others have insisted that 9/11 presented unique legal challenges, so that this area of the law *was* unclear.

Whether Yoo thought he could make Youngstown work for him or not, he was obliged to *discuss* the possibility that it *might be held to apply*, given its prominence and apparent relevance to the issue at hand (the power of the President to order conduct contrary to the Torture Act and the War Crimes Act).
 

why would not yoo be culpable under a charge of misprision of a felony??

in that torture is unlawful under US law and prohibited by CAT .. would not the act of writing the memo to give cover to a governmental effort to violate US statutes and treaty obligations by enabling torture of a prisoner not be misprision of a felony... on it's face .. or misprision of duty ..??
 

This comment, from a follow up post at Leiter's is illustrative of why this whole debate is making me ill:

"We are not afraid to let John say what he thinks, because Chris can say what *he* thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell."

Wow, the system works! What a great consolation to his victims. Everyone give themselves a big round of applause for their devotion to scholarly debate.
 

This one paragraph perfectly captures Leiter's inability to deal with the distinction between scholarship and lawyering:

"There is no evidence that Yoo is an incompetent lawyer; indeed, the evidence that he is quite competent is overwhelming: his education, his clerkships, his professional experience, his teaching experience at Berkeley and other law schools, his professional scholarship. On the other side is the memo."

In other words: in a debate over the quality of Yoo's lawyering, academic credentials trump . . . actual lawyering.

Even worse, despite Leiter's protests to the contrary, the debate here isn't over whether Yoo is, in all contexts and at all times, an incompetent lawyer. It is over whether, in the memo in question (and any related memoranda), Yoo's lawyering was incompetent.

The relevance, to this question, of Yoo's pedigree escapes me.
 

Just one more thought on whether Yoo's mis-deeds are covered by Berkeley's faculty code of conduct (http://www.ucop.edu/acadadv/acadpers/apm/apm-015.pdf)

Are we to imagine that, were Yoo to be investigated for allegedly violating this code that his response would be something like the following?

But how could I have known that enabling torture violated Berkeley's ethical principles?

A little more completely, is the defense?

But what reasonable person could have foreseen that enabling a regime of torture might constitute a breech of the ethical code that governs Berkeley's hiring practices? They don't mention standing against torture, so how could I have been expected to know they were against it or might consider it unprofessional to enable it?
 

The point of the above is: letting the pro-torture professors debate the anti-torture professors in the law reviews & op-ed pages & letting history judge & huzzah for academic freedom is all well & good (though I would prefer professors actually debate hard questions--but never mind.)

But this wasn't a campus debate: the anti-torture professors wrote their law review articles and op-eds, which had no effect whatsoever on U.S. policy. And Yoo wrote his classified memos, which assured the executive branch officials that they could torture people without fear of prosecution, and they did. And people suffered, as Yoo knew they would, and people died, including innocent people. And no officers were convicted, and no civilians were prosecuted & & they probably never will be because of that same Yoo memo. That is what people are objecting to, and they are perfectly justified in doing so. It has nothing to do with their hatred of "unpopular ideas" & scholarly debate, and claiming that it is is at best a distraction and at worst a slur.

You can credibly argue, nonetheless, that Yoo should keep his tenure because complicity in war crimes & torture simply isn't enough without a criminal conviction, because a university lacks the capacity to investigate fairly, etc. It's a credible argument; maybe it's correct. But that argument logically implies that Berkeley would also be wrong to discipline O.J. Simpson, or Mark Swanner, or a CIA officer who was videotaped torturing a prisoner, or Prince Johnson (the Liberian warlord videotaped supervising the torture of Samuel Doe--never convicted of anything, now a Senator), or any other number of people who are implicated by undisputed evidence in gross crimes or human rights violations but have not been convicted for one reason or another. Maybe that's necessary to protect the institution of tenure; I'm not so convinced, but maybe. But it's a compromise with ugly, maddening results & it's entirely understandable for the victims of those crimes, & other citizens appalled by them & wanting some justice, not to like it very much. Their dislike of it doesn't show anything about their lack of commitment to academic freedom; most of them honestly wouldn't give a damn if Yoo had simply written pro-torture law review articles and op-eds.

For that matter, Leiter himself seems fairly squeamish about it; he'd much rather pretend this is about "unpopular ideas" because defending free speech sounds a lot prettier than arguing that the tenure procedures trump factual evidence of participation in destroying other human beings.

It's entirely possible that there's NOT a legitimate basis for Berkeley to revoke Yoo's tenure. I don't know; I don't know much about their code of conduct & I know even less about the precedents. But the arguments that Berkeley shouldn't even look into it, & that people are angry at Yoo for his ideas rather than for his actions as a government lawyer and their awful consequences, are facile & unconvincing. And their amazing popularity among people who are usually a little smarter than that are making me increasingly angry.
 

Speaking as a (soon to be ex-)academic, the standard of "intellectual honesty" you have in mind here is far broader than the offense envisioned by Berkeley's tenure regulations. By "intellectual honesty" they no doubt mean things like plagiarism and forged data-- in other words, misdeeds directly related to the academic research a faculty member undertakes under the implicit sponsorship of the university (through their grant of tenured employment).

This is a good point. Let me explain the way I see it.

The academic standards were clearly written, as you say, with the academic context in mind, though the express words don't limit them to that context. Yoo, however, was not operating in any academic context; he was on leave from Berkeley at the time. The issue, as Anderson noted in his first post in this thread, is whether and how to apply the standards to someone whose conduct took place in a non-academic setting.

My view is that one of two things must be true:

1. Yoo was not bound to comply with the academic standards because he wasn't at Berkeley. In this case, I would argue, the protections of those standards don't apply to his actions off the faculty.*

2. Yoo was bound by the standards and is entitled to their protection. In this case, we have to decide how to apply the standards to the non-academic context. My view is that it only makes sense that the university insist on compliance with the standards of intellectual honesty appropriate to the situation. Otherwise we'd have strange results like those suggested in other comments where egregious misconduct doesn't fall within the standards.

Suppose, for example, that Yoo admits, publicly, to all of the elements of a war crime. For various unsurprising reasons, however, he's never convicted because even the new Obama Administration declines to prosecute him (see Athens ca. 402 b.c.e.). It wouldn't make much sense to anyone that the standards nevertheless don't apply to Yoo in this case.

One of the interesting features of this debate is the disparity between the academics' view of their own standards and the lawyers'. If you'd've asked me beforehand whether the standards for a law review article were higher than those for a legal memo, I'd have been sure they were (based on my experience from 30 years ago). After all, lawyers don't exactly have a good reputation for being straightforward on such matters.

Instead what I see is the assertion by at least 3 respected professors (Leiter, Graber, Fried) that Yoo's memos were no worse than what they've seen in other academic writings. That honestly shocks me. It's neither here nor there, really, it just struck me.

Remember, too, that what we're discussing here is NOT whether Berkeley should terminate Yoo. It's whether it should investigate him. Those are very different things.

*This can't be the first time a situation like this has arisen. I wonder if Berkeley has a policy in place to cover misconduct while on leave. Think, for example, of a biology prof who fakes results for an independent lab.

It would also be useful to know the terms of any agreement under which Yoo left and/or returned.
 

anderson:

The issue is not what Yoo's "predicate opinion" was.

The issue is whether Yoo was obligated to explain to his client that other opinions, contrary to his own, were arguable and might ultimately prevail in court.


What other opinions?

Yoo was tasked to provide legal guidance where nearly none existed. For the most part, Yoo was providing de novo advice on questions which have never been addressed by the Courts. His were the only opinions.

For example, there has never been a prosecution under or a court interpretation of the Torture Statute. Yoo was on his own.

There has been very little court precedent on the balance of wartime military powers between the Executive and Congress and none at all on the precise questions of whose power controls over the treatment of POWs. Yoo was on his own.

Yoo did have the benefit of precedent to answer the question of whether the Bill of Rights applies in general to enemy combatants during wartime and in particular to foreign enemy combatants captured and held overseas. That precedent supported Yoo's position.

As to our discussion, there is no precedent on the question of whether the President has plenary power over setting the rules for the treatment of POWs captured on an overseas battlefield. Yoo thinks the President has that power and there is no contrary authority for him to cite to the President. Youngstown most certainly does not opine on that question and only applies of there are overlapping powers of Congress and the President. If there are no overlapping powers in Yoo's opinion, there is no reason to address the Youngstown balancing test.

You may disagree with Yoo's position as I do, but our opinions are not legal authority which Yoo had a duty to include in his memorandum.
 

You know where Bart's argument really falls to pieces? He concedes that the Article I clauses on captures on land & water & making the rules governing the armed forces are dispositive. Yoo *didn't even mention them*--directly on point clauses in the U.S. Constitution!--in one memo, & deals with them completely dishonestly in the second. As bad as the Youngstown omission is, I've always found that worse.
 

Cal's problem isn't why they should or shouldn't keep Yoo.

Cal's problem is why they hired Yoo and gave him tenure.

Consider for instance a tenured engineering professor who submits a bridge design that would collapse if built. What? How'd that guy get in? He's at your school? You guys have a selection process of some sort? I think it's safe to say you have a problem.

Yoo's continued presence on the faculty simply dramatizes the problem, makes it more of a public embarrassment. The problem however is how he got in, how Cal got it that wrong.

By the way, if you like bridges that don't collapse, you'll love democracies that don't.
 

"Bart" DePalma emulates a three-year-old:

Until someone offers legal authority demonstrating that Yoo's legal opinions are "incompetent" or offers evidence providing a prima facie case that Yoo's memorandum constitutes an actual criminal offense under the US Code, Yoo is being persecuted for one thing and one thing only - writing a memorandum of law with which his critics disagree.

Yes, "Bart", if you cover your eyes, then "Eyyyeeeee caaannnn't seeeeee yoooouuuu!!!!"

On the matter of the Yoo memos being "good law": You can look at what Dilan has written, or if you prefer a more Sam Erwin-esque take on it, here's a couple of my quick thoughts on the subject (here and here. Feel free to post any "rebuttals" there, and I'll be glad to respond to any of your objections there.

I'd note that even the maladministration withdrew the memo. That doesn't augur well for the quality thereof, eh?

Cheers,
 

i don't quite understand where you find that the precedents support Yoo's conclusions Bart .. what you wrote was: " Yoo did have the benefit of precedent to answer the question of whether the Bill of Rights applies in general to enemy combatants during wartime and in particular to foreign enemy combatants captured and held overseas. That precedent supported Yoo's position. "

here's the applicable section of the geneva conventions concerning the treatment of unlawful combatants :

The Geneva Conventions apply in wars between two or more states. Article 5 of the GCIII states that the status of a detainee may be determined by a "competent tribunal". Until such time, he is to be treated as a prisoner of war.[2] After a "competent tribunal" has determined his status, the "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of a POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".[3]

http://en.wikipedia.org/wiki/Unlawful_combatant

imo ..that fairly well rules out the legality of torture under international law .. and we're signatories to the convention ..so it is US law as well ...
 

"Bart" DePalma:

Yoo is of the predicate opinion that the President's CiC power over the battlefield (including determining the treatment of POWs) is plenary....

"... and the whole world's the 'battelfield', and in battle, Dubya is the effin' CINC! All hail Caesar Dubya!"

I'd note for those that are non-conversant of the Constitution that it made clear what happens in case of war (and by usual canons of Constitutional construction, what doesn't).

But I'd also note that we are not at war, the maladministration has dropped its AUMF claims in other fora, and it's absurd to say that every place (including the U.S.) is a battlefield even if we were at war, particularly considering Ex parte Milligan.

Cheers,
 

Not to mention:

Yoo is of the predicate opinion that the President's CiC power over the battlefield (including determining the treatment of POWs) is plenary. Therefore, there is no particular reason why he would apply the Youngstown balancing test meant for cases where the power of the Executive and Congress overlap. Yoo's position is not incompetent, but rather differs from your's and mine.

Isn't that kind of "begging the question"? Isn't that "predicate" assumption exactly what needs to be addressed within the framework of Youngstown?!?!?

Cheers,
 

"I must say the breathtaking irrationality of so many of the comments on this subject (I do not mean alkali's question, which is a fair one) is really quite unbelievable.'

A very quoted passage on this thread.

I think it is, on the whole, an unfair observation.

Again, lets remember Frankfurter's observation that at some points we must raise our vision above the books laid out before us, and try to get a vision of the animating spirit of the law in a given case. In his time it was prisoners in primarily Southern jails being treated inhumanly. In our time it is non-citizens being tortured under color of our laws.

Ideas and their freedom are not at all what is at stake here-- even the academy's defenders probably recognize that. Nor do I think, is Yoo's legal craftsmanship what exercises people.

I believe with all my heart that rational, well-educated people with legal training, or without for that matter, can recognize at a glance that Yoo did something abhorrent. And he did it coldly, calculatedly, and under full knowledge that he was twisting the law out of shape to get to the results. His memos are advocacy, not impartial summaries so that their readers could choose between theories. He wrote a brief for torture, rather than a collection of arguments pro and con. He was Torture's advocate and that is a hellish commission. Even people who agree with torture as practiced by us and support plenary presidential powers to authorize same, probably can see, again at a glance, that Yoo did something wrong. And these sympathizers would form the thought quite naturally, "Well, he's a crooked lawyer, but at least he's our crooked lawyer!"

It may be that Yoo has not advocated breaking any US law, or any CIL or any treaties that we are signatory to, or any obligations to the international community that we may implicitly have. He may be innocent of all charges except one:

He has without a doubt, committed a crime against humanity, in turning the law's force and majesty to the end of inflicting agony on human beings.

In the end, we have to raise our gazes and look out to the horizon, the context of our law and we see there a universal solicitude and protection of humans and human dignity, a repugnance for the inhuman and cruel. The foreground cannot be made to alter the horizon. The cases Yoo cites cannot alter the animating spirit of the law.

He is to my eyes, a criminal whether or not any court ever convicts him. There are some crimes for which there are no statutes. What he did may be one of them.

II.
As a thought experiment consider a statuteless "crime". Pulling wings off butterflies (or perhaps it has been criminalized in some jurisdiction, but I can come with another in any case) Suppose Yoo delighted in this practice and practiced it on Spring days on the campus, to the consternation of watchers, or perhaps on his sabbaticals. When this practice came to Boalt's attention, might we visualize some counseling? "John, you really can't do that..it reflects badly on us." And if Yoo continued stubbornly on, might we see some kind of disciplinary action, perhaps even loss of tenure?

If this is the case, then the argument that Yoo must be convicted before Boalt can act is simply silly.
 

"Bart" misstates Youngstown:

If Yoo agreed with my position, he would most certainly have cited the Youngstown balancing test on behalf of the President departing from congressional statutes on the basis of the overriding need to protect the nation.

The "balancing" in Youngstown has to do with when Congress has concurred with the president, when it has power and hasn't spoken, and when it has power and has spoken. The weights on the balance have to do with what Congress has done. Jackson says nothing about any "overriding need to protect the nation".

Here it is:

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Youngstown, 343 U.S. 579,638 (1952)

Cheers,
 

m"There is no evidence that Yoo is an incompetent lawyer; indeed, the evidence that he is quite competent is overwhelming: his education, his clerkships, his professional experience, his teaching experience at Berkeley and other law schools, his professional scholarship. On the other side is the memo."

So he knew better.
 

arne langsetmo said...

I'd note that even the maladministration withdrew the memo. That doesn't augur well for the quality thereof, eh?

Goldsmith backed away from Yoo's relatively straight forward definition of severe pain, muddied it up for political CYA and approved the same CIA coercive interrogation techniques. Go read his book.
 

jkat said...

Bart .. what you wrote was: " Yoo did have the benefit of precedent to answer the question of whether the Bill of Rights applies in general to enemy combatants during wartime and in particular to foreign enemy combatants captured and held overseas. That precedent supported Yoo's position."

i don't quite understand where you find that the precedents support Yoo's conclusions


Go read the first section of Yoo's memo. It cites a parade of Supreme Court precedent.

here's the applicable section of the geneva conventions concerning the treatment of unlawful combatants [from wikipedia]...

A couple hints:

1) Do not rely upon Wikipedia for legal authority.

2) The GCs have nothing to do with the question of whether the Constitution's Bill of Rights apply to enemy combatants during wartime.
 

arne langsetmo said...

"Bart" misstates Youngstown: If Yoo agreed with my position, he would most certainly have cited the Youngstown balancing test on behalf of the President departing from congressional statutes on the basis of the overriding need to protect the nation.

The "balancing" in Youngstown has to do with when Congress has concurred with the president, when it has power and hasn't spoken, and when it has power and has spoken. The weights on the balance have to do with what Congress has done. Jackson says nothing about any "overriding need to protect the nation".

Here it is:

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [the Congress from acting upon the subject.


The President has the power and duty to protect the nation as CiC. That is the power which would be balanced against those of Congress's power to set rules for captures in my hypothetical. The Jackson concurrence does not list the competing powers. Rather, it simply balances the powers.
 

Leiter's recent post isn't convincing; this one is downright appalling, shot through with factual misrepresentations & false cheap shots. Prof. Levinson, I'm both surprised & disappointed to see you buy into this. I've never been more disappointed with professors in my entire life; the few people who were talking a bit of sense last week seem to have been peer pressured out of it.
 

As with Yoo, as with Brian Leiter, let's recall but tools. What of those who write for this blog who find his arguments so profound?

Katherine is upset at Sandy Levinson. But, it goes beyond him. I share btw her sentiment as to the rudeness of Prof. Leiter. It has been shown here repeatedly.

Again, are those who run this blog wishing us mere readers to assume they think this sort of behavior praiseworthy? Their continual patting L. on the back -- even at one point (Scott Horton post) that he snidely responded to the person's argument -- is absurd.

BTW, fears have been raised about if we allow an investigation (a serious one with some serious possibility of some bite to it) it would threaten academic freedom. But, no real argument suggesting an example really has been provided.

Talk of some right wing sorts threatening liberal professors doesn't really do the trick. Where is the credible case of lib aid and abetting of torture in this country? Just curious really.

Those who compare Clinton's impeachment to the actions at hand, perhaps, have bigger imaginations, though.
 

There is substantial evidence that Yoo wrote the 2003 torture memo after the fact to provide a get-out-of-jail card to the torturers in Guantanamo and at Baghram Air Force Base. The evidence is to be found both in the differences between the 2002 and 2003 memos, and in the torture logs of the detainees which have been extracted from the torture administration. To my mind, this makes the memos even more despicable, and serve as greater justification for firing their author.
 

Bart:

2) The GCs have nothing to do with the question of whether the Constitution's Bill of Rights apply to enemy combatants during wartime.

Correct. However, the GC's do require humane treatment of prisoners, whether or not they are war criminals (see GC3, Art 129 and referents). As signatories, we are required to abide by those.

And as for your expected next claim that we legislated away the definitions of our government's actions so that they were no longer torture, please read GC3, Art 131: ANo High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

If this is war, then those are the rules. If you break the rules, or cause them to be broken, you are a war criminal.
 

Berkeley doesn't seem to realize that it is at a significant risk of being forever associated with Chenye/Bush administration torture policies. Not a nice prospect for such a venerable institution! They need to do something. And that something does not have to be a termination, far from it.


(Dean's attempts to deflect blame from Yoo by pointing out that the ultimate responsibility lies with his principals were a mixed blessing. On the one hand they appeared to be a little bit too legalistic, too "get me out of this mess" to really help, but on the other he seemed to have managed to send some serious shivers down some spines in Washington DC. For it is one thing for anybody here to consider possibility of wartime crime charges and quite another when that possibility is publicly discussed by the dean of Berkeley law school. And shivering they must be, if we are to understand their sudden humbleness before the pope.)



-------
(two minor points)

- people in academia tend to be a little too protective of their right to lifetime employment, almost everybody else in this country is at the risk of being terminated for no reason, why shouldn't you?

- it was reported recently (WaPo) that poor Alberto Gonzales fell on hard times - seems like nobody wants to hire him. Given that depriving people means of earning honest living is one of the favorite neutralization techniques of US security agencies (FBI, etc) I'm rather sensitive to his predicament.

- so here is a personal appeal to his principals. Look it's rather certain you will be looking for good layers soon, the guy is a very good lawyer otherwise you wouldn't make him AG would you? so why don't you hire him as your personal attorney? If he was good enough for the rest of us he should be good enough for you.
 

Sandy may consider retitling this post from:

"LEITER ON JOHN YOO"

to

"HEAVIER ON JOHN YOO."

As the wise sage (moi) often says, "With friends like this, who needs an enema?" (Might that be a reverse form of waterboarding?)
 

I am not sure if anyone has mentioned it yet, but here is an obvious case to test the neutrality of the principles folks want to apply to Yoo. It involves Bernardine Dohrn, recently renowned for her association with Senator Obama. According to Wikipedia:

“Dohrn became one of the leaders of the Revolutionary Youth Movement (RYM), a radical wing of Students for a Democratic Society (SDS), in the late 1960s. The ninth annual national SDS conference was held in Chicago in the summer of 1969, and the SDS collapsed in an RYM-led upheaval. In July 1969, Dohrn, Eleanor Raskin, Dianne Donghi, Peter Clapp, David Millstone and Diana Oughton, all representing "Weatherman", as Dohrn's faction was now called, traveled to Cuba and met with representatives of the North Vietnamese and Cuban governments.
The Weathermen, as they were known colloquially, conducted a series of bombings against the US government throughout the early 1970s, bombing several federal buildings. Dohrn is a principal signatory on the group's "Declaration of a State of War" (1970) which formally declared war on the U.S. Government, and completed the group's transformation from political advocacy to armed resistance. Dohrn also co-wrote and published the subversive manifesto Prairie Fire (1974), and participated in the covertly-filmed Underground (1976).”

Dohrn is an Associate Professor of Law at Northwestern. Do the reasons for firing/investigating Yoo apply to her?
 

Leiter's recent post isn't convincing; this one is downright appalling, shot through with factual misrepresentations & false cheap shots.

Wow. Katherine is right. Leiter quotes Lederman's very pertinent objection, and then *completely* dodges answering it by changing the subject.

At some point, this persistent hackery is going to call Leiter's own integrity and professionalalism into question; I'm already thinking about his Nietzsche book, which I greatly admired, and wondering whether he's as trustworthy there as he is here.
 

This whole debate is annoying. Brian Leiter is annoying.
The defense of academic "freedom" better described as academic independence, is that once someone has jumped through enough professional hoops he may not be forced to do so again. Any form of social status is political in one way or another, and tenure is a marker after which someone has a right to think pretty much whatever he wants, no matter how absurd. This is not a defense of idiocy any more than it's a claim that whomever passes the mark is a genius or a light unto the world. What it is is a claim that paying some people to be paid to be free of constraint in their thoughts results on the whole in a social good. Yoo clearly isn't stupid, but he's not that bright. He's a mediocrity, but a mediocrity who's past the post and has reached safe haven for his ideas in the academy. If he defends the actions of Nazi jurists he's safe, though if he did so earlier he might not have gotten tenure (there's the ambiguity of intellectual life as a subset of social life)

If Yoo behaved as a Nazi lawyer he may be disbarred and perhaps charged. But the decision as to whether he crossed that line is not something for the academy to decide. Yoo is a scholar, but he was a jobbing lawyer: his misconduct, if that's what it was, was a misconduct of tradecraft and his guild and prosecutors should be the ones to investigate. If they find him culpable then the academy can choose to expel him. If you want another example think of William Kunstler defending John Gotti's sleazeball attorney Bruce Cutler. And Kunstler defended him on principle. It's a tricky situation.

What's annoying, indeed pathetic about Lieter's argument is his tone. He defends Cloudkookooland as he always does, as the land of enlightenment, when in fact it is a social construction allowing members of our community the freedom to think as casually and sloppily and self-indulgently as they wish, with the knowledge -the hope- that some of them will actually use that freedom to come up with things that they and we would otherwise miss. Yoo is a mediocrity; most professors are mediocrities. A precious few are not. Academic independence is worth the risks, not only of mediocrity but of fostering doctrines injurious to our way of life. As it is worth the risk that the guilty to go free before an innocent man rots to jail. As it is worth the risk to allow freedom of speech to the bitter. The bitter, the aloof, the lazy and the arrogant may sometimes by right. A historian of all things[!], in a post at Crooked Timber wrote proudly that academic freedom predates freedom of speech, defending it as if the Crown's recognition were a valid defense. The arrogance in this case is undeserved.

Academic free speech is an early example of the fight for broader rights. It preceded open free speech in the past for the same reasons it's been granted now in China, which was noted with some surprise by Ronald Dworkin when when he was invited to speak at a university in in Shanghai. To acknowledge that the Crown saw fit to acquiesce is not a defense of the crown, nor is it a wise choice to use the crown as a defense of the prerogatives of academia. That's little more than a defense of the priesthood. "To the pure all things are pure." A historian shouldn't make such mistakes. But he did. As Leiter does, in his ridiculous, obscene, moralizing tone.
The classic defense of the free market is that its openness, vulgarity and risk act as an astringent, testing and tightening thought what would otherwise risk becoming arid blather. But now that the market has reached the academy it wants to escape its roots. So we have an academy predicated not on the hopes and ambiguities of the humanities and of democracy but on the technocratic logic of reactionary schoolmen.

The defense of Yoo's place in the academy is no more or less than a recognition of human weakness partiality, fallibility and unreason. We stumble and acknowledge it, even allowing ourselves to do so so that we may learn. We are fools and lying about it does no good. The defense of academic freedom is not that non-academics are wrong but that we are all even the experts most likely wrong most of the time. The defense of academic freedom is a humble one, not a lecture by the Aristoi to the Hoi Polloi. I'll end with a quote from Henry Farrell who really, really, really, does not get the fucking point:

“I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom.”

To which one can only add that If the public decides that democracy isn’t working out in terms of the goods it provides, then too bad for democracy. Democracy does not begin with the freedom of the individual but with his willing acceptance of responsibility. That the arguments of the academy are now predicated on the former as opposed even to an analysis of their reciprocal relation, is a misunderstanding of language and history and the function of republican forms of government; a misunderstanding of the nature os society itself. Academic freedom says this perversion should be allowed, not that it should be respected. It's a sad state of affairs.
 

Yes--he acts as if Yoo was just a law professor at Berkeley, writing these crazy but sincere law review articles on the unlimited commander in chief power, which he forwarded to Bush & Bush unexpectedly used as justification for atrocities:

"Are we really to believe--fifty years after the McCarthyist witch hunts!--that academics should be punished because their bad ideas are then used by bad people to do bad things?"

"Anyone calling for him to be fired is calling for him to be punished for his ideas, and nothing else. Attempts to claim it is more "complicated" are just attempts to rehabilitate the idea that having bad ideas, even bad ideas others act on, is a crime"

The allegation, actually, is that Yoo is one of the actors in Washington. It is that he wrote the memo for the express purpose of providing criminal immunity to members of the executive branch from torture, because that was necessary for torture to go forward--that, in short, he knowingly participated in a conspiracy to torture people, which is a felony. It wasn't Yoo's "ideas" out there in the sphere of public debate that gave them that assurance; it wasn't the persuasiveness of his arguments in either law review articles or the torture memos; it was the existence of classified OLC memos that gave the green light, which provided the needed shield from prosecution no matter how shoddily they were written. He knew this when he wrote the memo.

The ridiculously shoddy ideas contained therein, the failure to meet basic professional standards about citing adverse authority like the most relevant Supreme Court cases & clauses of the U.S. constitution, the shenanigans about death & organ failure etc., are relevant as evidence proving Yoo's defense--that he was simply neutrally describing the law rather than writing a brief for torture--to be false.

If Yoo had written some really terrible law review articles on unlimited executive power, & David Addington had, unbeknownst to Yoo, relied on them to write the OLC memos giving the green light for torture, then we'd be in the situation Leiter describes. But we're not. Everyone knows we're not.

I suppose this is why he later switched to "it doesn't matter if there was a crime, there's no conviction," which is indeed a better argument, but which doesn't seem to apply to ordinary criminals with fewer impressive clerkships & law review publications than Yoo.
 

Mark or Anderson:

Can you point to a single example at any point in history of a Boalt professor, a law professor elsewhere in the UC system, or a law professor anywhere in the U.S., who was stripped of tenure because his university decided that his outside lawyering was professionally incompetent?
 

Katherine, he needs to be punished in the real world before he can be punished in the academic one, and not because the academic world takes precedence but because it doesn't.

The academy is a useful fiction and for reasons you would otherwise defend, it should remain that way.
If you want to change the world, join it. Contrary to claims of present day scholastics, the academy is an aspect of the world -as dreams are an aspect of consciousness- and not the other way around. You and Leiter both take your dreams too seriously for your own or anyone else's good.
 

David, I certainly can't, and an investigation would presumably include some effort to find precedents.

OTOH, by the nature of things, such cases would be rare. How often does an "advice memo" come to the attention of a law school?

To reiterate, the issue here is whether to investigate Yoo; the committee that did so would have to consider such points as you raise in deciding whether any sanction, up to & including revocation of tenure, would be proper.
 

bart .. i fully understand the BOR doesn't apply to to captives garnered on the field of battle .. but do you understand the GC's do apply .. ?? simply because Alberto Gonzales termed them "quaint" doesn't relieve the United States of it's oblgations under the conventions.

and i don't rely on wikipedia myself .. but in this case there is no deviation between the text of the specicic geneva convention article quoted and the text of the geneva convention article as it appears in the conventions .. ergo sum.. it was simply a lazy way to copy and paste the appropriate and applicable language.
 

I just don't see why misconduct as a scholar is relevant & the university is capable of invevstigating, but misconduct as a lawyer is irrelevant & can't be investigated by a law school (which I bet requires it students to take "professional responsibility" based on its competence to instruct in that subject--mine did). Obviously, it's more important that other avenues proceed; the reason people are focused on Berkeley is because our attempts to have any accountability anywhere are not meeting with any notable success. Civil lawsuits get tossed; prosecutions never begin, in part because of the OLC memos themselves. Maybe the Pennsylvania bar will do something; I'm not a member. I'm not giving up on those things, but let's please NOT pretend that they're likely to succeed or that they're not being pursued because human rights lawyers are too focused on Berkeley. That hasn't been & shouldn't be the focus, but it's legitimate to ask Berkeley, & the answers that Leiter & Edley have provided are insulting & factually inaccurate.
 

Ah, David, but again that's not Cal's problem. Or should I say, dilemma.

Here's Cal's problem: can you point to a single example in the history of Cal's engineering department of a tenured professor in that department publishing a design for a bridge, that, if constructed, would promptly collapse? No? I didn't think so. I can't either. Now: if there were such an example, what would Cal look like then? What would you say of its selection process for the position? Would it matter whether the badly botched bridge design was done on campus or elsewhere?

That's Cal's problem.

And if you like bridges that don't collapse, you'll love free societies that don't.

And if engineering is a profession with standards of professional ethics that include competence that protect the client and the public from unsafe structures, how much more important is it that law is a profession with standards of professional ethics that include competence that protect the client and the nation from illegal usurpation of power?

That's Cal's problem.

Keeping Yoo on won't solve Cal's problem, but letting him go won't solve it either. Because Cal's problem is how he got there in the first place.
 

Can you point to a single example at any point in history of a Boalt professor, a law professor elsewhere in the UC system, or a law professor anywhere in the U.S., who was stripped of tenure because his university decided that his outside lawyering was professionally incompetent?

No, but this brings up two important points:

1. Instances of law professors participating in a conspiracy to torture are, I hope, rare.

2. There's a distinction between Anderson's view and mine which your question brings to the fore. As I understand Anderson, his view is that Yoo's professional incompetence is relevant because Yoo is training future lawyers.

That's not my view. My view is that Yoo has violated Berkeley's academic standard of "intellectual honesty".* His professional incompetence is simply evidence of that dishonesty.

Given my view of the issues, there'd be no need for examples like you suggest. If someone wanted examples, I'd suggest looking at other disciplines just to expand the range of potential examples.

*I guess I need to add the usual caveats that all the evidence isn't in, that other evidence can and should be used to evaluate Yoo's honesty, and that other charges are possible as well.
 

"...the reason people are focused on Berkeley is because our attempts to have any accountability anywhere are not meeting with any notable success."

So because it's failed in the real world you want to call in the dream police.
Yoo is a symptom. So is Leiter. So is DeLong. So are you. Grow up.

And jpk. you miss the point. Lawyers in the academy are like literature professors. Lawyers in public life are like engineers: but only engineers of rhetoric. And as that unlike those who work with numbers and steel they are judged by man-made and formal rules that mediate the moral consensus at any given time (courtrooms and Platonism don't mix.)
Read Mark Graber.

Leiter with his fixation on "technical" knowledge ignores the ambiguities, the social theater that is the foundation of his own world, and plays at being a scientist in his language and philosophy "laboratory." It's law for Aspergers patients: society is apart, is other. But society made him, as it made Yoo -as it made you- and me. The response of academics who call for Yoo's dismissal begins with embarrassment. They want the academy to be better than the rest of the country, better than the outside world. Leiter and others think it already is. It isn't and never has been. It is a port of the world where we allow a larger measure of freedom. That's all.
 

Mark: As I understand Anderson, his view is that Yoo's professional incompetence is relevant because Yoo is training future lawyers.

Check.

That's not my view. My view is that Yoo has violated Berkeley's academic standard of "intellectual honesty".* His professional incompetence is simply *evidence* of that dishonesty.

I don't disagree that Yoo displayed "intellectual dishonesty" in his memos that we've seen to date; I'm just not clear whether the Berkeley canons cover it.

Ethical Principles. “Professors, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognize the special responsibilities placed upon them.
Their primary responsibility to their subject is to seek and to state the truth as they see it.
To this end professors devote their energies to developing and improving their scholarly
competence. They accept the obligation to exercise critical self-discipline and judgment
in using, extending, and transmitting knowledge. They practice intellectual honesty.
Although professors may follow subsidiary interests, these interests must never seriously
hamper or compromise their freedom of inquiry.” ***

Types of unacceptable conduct:
Violation of canons of intellectual honesty, such as research misconduct and/or
intentional misappropriation of the writings, research, and findings of others.


The examples, which admittedly are not exclusive, are unclear as to whether "misleading my client by omitting contrary authority" falls into that scope.

Question: if the memos had been journal articles, would they have been intellectually dishonest in this sense?

If not, then how are they intellectually dishonest?
 

"I must say I find it compelling in explaining why he is indeed entitled to benefit from valuable principles of academic freedom."

To go back to my focus on Sandy Levinson, consider his praise for Brian Leiter's piece.

Given the number of posts on this subject, I and others wished more ground would be covered by them. For instance, Yoo would "benefit" from the "principles of academic freedom" even if there is an investigation and some chance of "serious" (to use Marty's word) consequences to it.

He would keep his job etc. as the investigation goes on and the importance of academic freedom would require great safeguards and a high bar of proof throughout it.

Does this mean that SL thinks some absolute bar is present here? This would be much more that the First Amendment itself supplies. Does "academic freedom" become endangered when what is at issue is not what he taught, but what he did outside the school during a leave of absence? (one issue covered)

In fact, when he can still teach what was in the memo as theory (at least in some fashion ... maybe write it as a law review article)?

Furthermore, free speech in the 1A context has various time, place and manner regulations and so forth. Some here suggest some "manner" regulations to scholarship/teaching. Is the 'benefit' of 'academic freedom' threatened by them?

I'm glad the comments covered some of this ground. I do wish Sandy et. al. would join in.
 

"Bart" DePalma:

I'd note that even the maladministration withdrew the memo. That doesn't augur well for the quality thereof, eh?

Goldsmith backed away from Yoo's relatively straight forward definition of severe pain, muddied it up for political CYA and approved the same CIA coercive interrogation techniques. Go read his book.


They withdrew the memo. Perhaps you can explain how Goldsmith was engaging in "incompetent lawyering".

Nonetheless, even if Goldsmith did come up with some way to justify "enhanced interrogation thecniques", that hardly means that Yoo's analysis was correct or competent. That's your logical error.

You may claim:

"eight" has five letters,
"five" has four letters,
"four" has four letters,
"one" has three letters, and
"one" has three letters

So: "eight" + "five" + "four" + "one + "one" gives you nineteen letters, thus the sum is 19.

I could do some real math, and show that 8 + 5 + 4 + 1 + 1 is actually 19:

8 + 5 = 13
13 + 4 = 17
17 + 1 = 18
18 + 1 = 19

but that hardly makes you analysis correct.

And Goldsmith's book is on top of my pile, next in line. When are you going to read "Great American Hypocrites", Stephen Kinzer's "Overthrow", Eric Lichtblua's "Bush's Law", James Risen's "State of War", James Bamford's "A Pretext for War", or Richard Rhodes's "Arsenals of Folly"?

Cheers,
 

The examples, which admittedly are not exclusive, are unclear as to whether "misleading my client by omitting contrary authority" falls into that scope.

Question: if the memos had been journal articles, would they have been intellectually dishonest in this sense?

If not, then how are they intellectually dishonest?


In my view, "misleading my client" does constitute "intellectual dishonesty" within the Berkeley standards. Committing actual fraud (or, alternatively, participating in a conspiracy to torture) is what makes the case more serious.

I guess I have a different view of academic responsibility than the professors here. If Yoo had merely published his memo as a journal article, I'd still consider that intellectually dishonest. There, though, at least the marketplace of ideas would enable others to expose the sham. The availability of that remedy means that Berkeley might choose not to discipline a professor guilty of such analysis (though repeated instances might call for it).

In Yoo's case, that marketplace couldn't operate because the memos were (a) secret and (b) legal acts rather then speech alone. In that sense, his conduct is like that of a plagiarist, who conceals his/her misconduct and prevents the marketplace from working. Universities should and do take those cases much more seriously.
 

"Bart" DePalma:

[Arne]: "Bart" misstates Youngstown: If Yoo agreed with my position, he would most certainly have cited the Youngstown balancing test on behalf of the President departing from congressional statutes on the basis of the overriding need to protect the nation.

[Arne]: The "balancing" in Youngstown has to do with when Congress has concurred with the president, when it has power and hasn't spoken, and when it has power and has spoken. The weights on the balance have to do with what Congress has done. Jackson says nothing about any "overriding need to protect the nation".

[Arne]: Here it is:

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [the Congress from acting upon the subject.

["Bart]: The President has the power and duty to protect the nation as CiC....


Not obvious. He has the power of CinC, but the purpose of such is left unstated. Certainly what is missing is any indication that any such power he does have should trump powers given to the legislature (and in fact, that's pretty much what Youngstown was all about).

... That is the power which would be balanced against those of Congress's power to set rules for captures in my hypothetical. The Jackson concurrence does not list the competing powers. Rather, it simply balances the powers.

As I said -- but what you ignore -- is that this is not some "balancing" based on some "overriding need to protect the nation" [your words]. It is a balancing of powers between the co-ordinate branches. If Congress has the power and has spoken in the negative, the preznit must yield (if Congress has no power, then it doesn't matter what they say, but that's a different issue). My point stands.

Cheers,
 

In my view, "misleading my client" does constitute "intellectual dishonesty" within the Berkeley standards. Committing actual fraud (or, alternatively, participating in a conspiracy to torture) is what makes the case more serious.

I'm all for that, but I can see Berkeley restricting it to failure to use quotation marks.

There, though, at least the marketplace of ideas would enable others to expose the sham. The availability of that remedy means that Berkeley might choose not to discipline a professor guilty of such analysis (though repeated instances might call for it).

That's a really interesting point, though I think it implies academic reform on a high level.

How many times can a Yoo publish something on the order of The Powers of War and Peace without being called on the carpet for it?
 

I guess I have a different view of academic responsibility than the professors here. If Yoo had merely published his memo as a journal article, I'd still consider that intellectually dishonest. There, though, at least the marketplace of ideas would enable others to expose the sham. The availability of that remedy means that Berkeley might choose not to discipline a professor guilty of such analysis (though repeated instances might call for it).

The "marketplace of ideas" is exactly how it would be handled in that case, because the entire point of tenure is to protect faculty from being dismissed-- or even "investigated"-- based solely on the content of their scholarship. This is exactly why the standard of intellectual honesty is so narrow-- otherwise, scholarship the majority of a discipline thinks is shoddy could be passed off as "intellectually dishonest" and then made the subject of "investigations."

I'm not pretending that Yoo's shoddy "torture memo" WAS scholarship, or should be evaluated as such. That's why I think that Anderson's position is more tenable. Even that, though, has its problems. As Anderson himself observed above, "law is not an academic subject," which I can only interpret as meaning that it's a practice; but if that's the case, why not just treat the teaching of law as just being different than the practice of law, apply the standard from Berkeley's tenure regs that applies to faculty's relationship to the community, and basically await criminal prosecution of Yoo before acting? I tend to believe that this is in fact how Berkeley sees it.

Although I wouldn't have put it exactly as he did, D. Ghirlandaio is right: discussing Yoo's tenure is a poor surrogate for swallowing our pessimism and just focusing on grounds for prosecuting Yoo as a war criminal.
 

The Attorney General has expressed the view that it won't prosecute anyone for conduct authorized by Yoo's memo; I don't think it's pessimism so much as "enagagement with reality" that leads me to think they won't prosecute with Yoo.

Are you familiar with DOJ's handling of the Salt Pit death case where a CIA agent tortured a prisoner with hypothermia & he froze to death? With its handling of Mark Swanner's murder of Manadel Jamadi by "Palestinian hanging" at Abu Ghraib? With its handling of the allegations against contractors Steven Stefanowicz, Daniel Johnson, & Adel Nakhla at Abu Ghraib? All of those cases are ones in which interrogators exceeded the "enhanced" interrogation techniques that were authorized & probably cannot invoke the reliance on official advice defense because the CIA wasn't supposed to kill people & there were supposedly some limits in Abu Ghraib. But although the torturers went somewhat beyond their orders, prosecution would nonetheless lead to the revelation of very damning information about the Bush administration; therefore, DOJ has deliberately killed those cases. I'm supposed to believe they might prosecute Yoo?

The only authority that can initiate prosecution in the United States is the same Department of Justice responsible for producing those memos--and several rounds of torture memos before & after. We'll have a new Attorney General until 2009 but until then there is absolutely no hope of prosecuting Yoo, or anyone--in part because of Yoo. No amount of pressure from human rights lawyers will change that. Can we please at least admit this? We should be pressuring the presidential candidates, by all means, but dishonest exculpation of Yoo by Leiter, Edley, & everyone else doesn't actually *help*.
 

The "marketplace of ideas" is exactly how it would be handled in that case, because the entire point of tenure is to protect faculty from being dismissed-- or even "investigated"-- based solely on the content of their scholarship. This is exactly why the standard of intellectual honesty is so narrow-- otherwise, scholarship the majority of a discipline thinks is shoddy could be passed off as "intellectually dishonest" and then made the subject of "investigations."

If Yoo's memo had been limited to an academic discussion of the issue, or even designated as an advocacy memo, I'd agree with you. What's different in his case is the fact that his memo, merely by being shown to others can be claimed to provide a defense to the crime of torture. It was what I've described previously as a "speech act". Think of it as similar to agreeing to a contract or committing fraud -- those involve speech, but they aren't "merely" speech because they have direct legal effect.
 

Mark: The issue you raise is precisely why I wrote my second paragraph. Yoo's memo wasn't scholarship, so applying the "intellectual honesty" standard, which is designed with scholarship in mind, doesn't work. (Let me put it this way: It won't work, no matter how many angry blog commenters and e-mailers there are out there.) All that's realistically left, then, is the professional incompetence claim, which I take it you're meaning to make by your description of the memo as a "speech act." If that's the issue, then the issue is really Yoo's actions, and I confess I share Brian Leiter's skepticism about insisting that Berkeley's tenure review board is an appropriate body for doing that.

I haven't heard you or anyone else here say anything directly to that latter point. I mean, what do you really think a group of Berkeley administrators is supposed to "investigate" (without subpoena power, I might add) that hasn't already been discussed ad nauseam on this blog and elsewhere on the Internet and in the legal academy itself? As Yoo's Berkeley colleague quoted at length over at Leiter's legal blog observes, there isn't even much of a prima facie tenure reassessment case against Yoo (yet), so unless you really expect such an investigation to dig up wholly new facts, calling for an "investigation" into Yoo is just shorthand for "We need to do something, anything to Yoo to make his life uncomfortable."

Katherine_: I am aware of exactly what you are talking about, and so I admit that it's unrealistic to expect the current DOJ to prosecute Yoo. As I just said, though, I fail to see how it "helps" to insist that a group of ill-equipped Berkeley administrators fill in for the defects of the current (or even future) DOJ.

Don't mistake this for a "defense" of Yoo or his positions on torture or executive authority. It's not inconsistent to say (a) that Yoo deserves to be at least seriously investigated by the DOJ for his activities in government, and (b) that it's a bad idea that Berkeley do the investigating if DOJ won't. Can't we talk and chew gum at the same time?
 

All that's realistically left, then, is the professional incompetence claim, * * * I confess I share Brian Leiter's skepticism about insisting that Berkeley's tenure review board is an appropriate body for doing that.

Well, whatever its weaknesses, my angle on the school's responsibility to its students does try to get around that.

Berkeley has an independent duty to its students to provide fit and competent instruction, and can't punt that duty to the whims of the DOJ or the PA Bar.
 

Anderson: Berkeley has an independent duty to its students to provide fit and competent instruction, and can't punt that duty to the whims of the DOJ or the PA Bar.

This would require a finding that there was actually something unsound about his instruction. But neither you nor anyone else is even claiming to know anything at all about that. Rather, you're coming off as saying that, because we can judge Yoo's conduct in government reprehensible, we can conclude a priori that his instruction, indeed his very presence in front of a classroom of students, MUST be bad-- or at least that his conduct in government should motivate Berkeley to ask students about Yoo's teaching, or to put monitors in his classrooms. Or something.

Maybe his instruction is bad in some sense-- couldn't claim to know-- but the kind of derelict instruction that constitutes a prima facie case for review of a professor's tenured status, like the kind of "intellectual dishonesty" that would trigger same, is quite narrow-- think not giving exams, not holding office hours, having a romantic affair with a student. Unless and until someone brings anything like that to the university's attention, I submit that Berkeley's hands are tied.
 

This would require a finding that there was actually something unsound about his instruction.

That's the counterargument, all right, but I think you're mistaking the *result* of an investigation with the *need* for an investigation. I mean, if they start off finding that his teaching is unsound, what's to investigate?

If the memos represent Yoo's view of the law, they suggest professional incompetence that couldn't help affecting his teaching.

The resulting investigation would look into his teaching and perhaps conclude that his teaching is in fact fine. I've heard as much from a couple of folks around the internets.

There's the alternative ground, which you appear to dismiss, that a flagrantly incompetent lawyer shouldn't be allowed to teach law students, because he sends the wrong ethical message to young people who are soon going to be professionally required to display high ethics.

Yoo is on record saying his memos were just fine, and thus implying that they are exemplary work product. I don't think that is what Berkeley needs to be telling its students.
 

Mark: The issue you raise is precisely why I wrote my second paragraph. Yoo's memo wasn't scholarship, so applying the "intellectual honesty" standard, which is designed with scholarship in mind, doesn't work.

This gets us back to the point I made previously that Yoo's conduct has to be measured in the context in which it occurred. You don't have to agree, of course, but I think failing to do so will cause real problems. In order to explain why, let me first make sure I understand your position:

1. The standard of "intellectual honesty" only applies to scholarship; and

2. Since Yoo didn't act within an academic setting where he was engaging in scholarship, the rule of "intellectual honesty" doesn't apply.

I believe there are two problems with this. First, if you limit the reach of the Berkeley standards in this way, it seems to me that you end up saying that Yoo gets the benefits of tenure protection without having to meet any standard applicable to his situation. That doesn't strike me as right.

In any case, this is only one of the two issues, the other being whether Yoo actually participated in a conspiracy to commit torture. Note, though, that if you apply the same "academic setting" limit there, then even the commission of a crime wouldn't justify discipline.
 

I just posted this at Volokh and since it makes important distinctions (obvious to lawyers but not necessarily to non-lawyers), I'm going to copy it here:

This is a good opportunity to repeat the important distinction which we critics of Yoo all insist on: that this is not a case where Yoo "thought wrong thoughts". Let's distinguish between 3 types of legal analysis: academic; advocacy; and "state of the law". There are different standards applicable to each.

If Yoo had published a law review article supporting torture, that would not be ground for discipline. If he made incompetent arguments in favor of torture, that probably wouldn't either, though a university might well look askance at a professor who repeatedly did so. Same with dishonest arguments.

Advocacy briefs are somewhat different. There, we all at least have to meet the requirements of Rule 11 and equivalent state court rules. The requirement is clear: we must meet certain fairly minimal standards of disclosure and honesty. In CA, for example, lawyers have an ethical obligation to disclose "controlling contrary authority" to a court.

The third level involves memos which purport to describe the state of the law. These are typically internal to a firm, but are sometimes given in the form of opinion letters to clients. Here, the standards are very high. The firm's ass is on the line; malpractice liability is very real. Indeed, in many states it's probably a violation of an ethical duty to give incompetent legal advice, and it certainly would violate the ethical rules to give dishonest advice.

I claim that Yoo had to meet an even higher standard than this. Why? Because OLC occupies a unique role in the government. It effectively describes the law under which the Executive Branch will act. It tells the Executive what are the legal limits to policy. For this reason, OLC lawyers must meet a very high standard indeed when they purport to say "what the law is". Incompetence in that job is inexcusable; dishonesty is unforgiveable.

That's not even the end of it. There is respectable authority (Profs. Kerr and Lederman, for example), which asserts that the OLC memos themselves serve to immunize those who rely on them. Someone who issues an incompetent/dishonest memo, knowing that others will rely on it, and further knowing that the memo itself will immunize the actor from criminal liability is no longer engaged in the practice of law in any meaningful sense. He's solely an aider and abettor of a crime.
 

Anderson: I dismiss the alternative ground you allege on the basis that, regardless of the merits of the moral claim you're advancing, that kind of free-floating morality-based inquiry into tenured faculty's teaching just doesn't exist at universities, and for good reason. Think of the message it sends: "We're investigating your teaching, not because we've received any complaint about it, but because we have a moral objection to your conduct outside the classroom." Putting aside John Yoo for a second, can you honestly tell me that there would be no reason for faculty to fear more such "investigations" on far less weighty grounds-- say, for being gay? Or for practicing an unusual religion? Or something else?

Mark: I contend that the "intellectual honesty" standard does apply to Yoo's "situation," just not to all features of it, and not to his conduct in government. Maybe there are problems with that, but I don't seem to have as clear a sense of them as you do.

Your further point about Yoo's participation in a conspiracy to commit torture is more to the point, but then I wonder why Berkeley should take on an investigation into whether Yoo actually has committed that crime when the law hasn't already indicted him for it, much less found him guilty of it. (If he were convicted of criminal conspiracy, Berkeley could ditch the "intellectual honesty" standard and just strip him of his tenure for being a felon.) Conspiracy to commit torture might, as a war crime, be subject to the principle of universal jurisdiction, but why should we consider Berkeley to be a suitable authority under that principle?
 

It is good to hear that lawyers in public life are merely engineers of rhetoric.

That way there are no real consequences for bad law practice in public life.

For instance, torture is not deemed magically legal, executives are not given power to ignore law they don't like, Constitutional protections of basic rights are not trampled on.

Oh, wait, it turns out all that is at stake. All that and more.

Again: if you like bridges that don't fall down, you'll love democracies that don't.

What stands behind safe bridges are competent engineers, and standards of ethics that include competence.

What stands behind free societies are competent lawyers, with standards of ethics that require them to get the law right and sometimes that may also mean they must tell their clients unpleasant truths about the law.

Other than that, we really don't need competence in engineering or law in public life. Let the bridges fall and the free society collapse. That's all that's at stake.
 

Your further point about Yoo's participation in a conspiracy to commit torture is more to the point, but then I wonder why Berkeley should take on an investigation into whether Yoo actually has committed that crime when the law hasn't already indicted him for it, much less found him guilty of it. (If he were convicted of criminal conspiracy, Berkeley could ditch the "intellectual honesty" standard and just strip him of his tenure for being a felon.) Conspiracy to commit torture might, as a war crime, be subject to the principle of universal jurisdiction, but why should we consider Berkeley to be a suitable authority under that principle?

Governments which commit war crimes typically don't prosecute those who act at their bidding. Think Pinochet or Milosevic. War crimes involve a corruption of government itself; they are acts no government anywhere can legally commit. Those who act outside the law to that extent will not abide by the law to prosecute.

This certainly is true now, and will continue to be true if McCain is elected in November. Perhaps a Clinton or Obama administration will see it differently, but even that is doubtful for a variety of reasons. Again, Pinochet is perfect example: even after Chile became a free society, it never prosecuted its former head of state.

Besides, I don't think we can satisfy our own moral obligations by saying "let the government do it". Each of us has our own moral obligation to act. We can't fob that off on others. The government's failure to prosecute can't excuse Berkeley.

In saying this, I don't mean to say that Berkeley must discipline Yoo. As I've tried to make clear, I think Berkeley might well investigate only to conclude that it lacks sufficient information to proceed. In that case, well, our generation's Elie Weisel will have to step forward.
 

The "marketplace of ideas" solution sounds great until you ask how it would work exposing an incompetent bridge design from a tenured engineering professor.

It would help some, instructing students in how not to design the structure, what are some fatal flaws in such designs and so on.

But it wouldn't help explain how this professor got hired and promoted and retained. Especially when he keeps pretending that the bridge would so work.

And it would actually make it harder to educate engineering students of their duty of competence in public life. Oh? What about him then?

So while the marketplace of ideas is a great thing, and of some help even here, it doesn't work so well when some vendors in the marketplace are selling fraudulent goods, and we pretend they're legitimate vendors like anyone else.

That's Cal's problem, though. They're the ones that put a sign on Yoo that says "legitimate vendor"
 

Brian: but then I wonder why Berkeley should take on an investigation into whether Yoo actually has committed that crime when the law hasn't already indicted him for it, much less found him guilty of it.

Uh-uh, you can't do that. You acknowledged above that Katherine's point is valid -- that there's no good reason to expect that Yoo will *ever* be indicted, for political reasons.

You can't do that and then say "but why should Boalt do the work when there are law enforcement agencies out there?"

Again, Berkeley has an *independent* interest in its standards' being met. Ordinarily, it would make excellent sense to say "let the courts decide." But Yoo isn't going to court, unless he's incautious in his travel abroad.

I submit that it's at least plausible that, on such unusual facts, Berkeley would have to take an interest in whether its canons had been observed, or whether Yoo did in fact commit criminal conduct.
 

Mark: Besides, I don't think we can satisfy our own moral obligations by saying "let the government do it". Each of us has our own moral obligation to act. We can't fob that off on others. The government's failure to prosecute can't excuse Berkeley.

I disagree-- I think that we can and should leave indicting others of crimes, investigating them as potential criminals, and making them suffer consequences, such as potential loss of employment, IS the job of a government, or of some body that enjoys legitimacy by virtue of governments' treaty obligations (such as the ICC). How is the notion that private individuals or state agencies other than the justice system, with its procedural safeguards, at all compatible with a workable notion of civil society?
 

Oops: That last sentence should have read, "How is the notion that private individuals or state agencies other than the justice system, with its procedural safeguards, has the authority to officially brand someone a criminal at all compatible with a workable notion of civil society?"
 

"That way there are no real consequences for bad law practice in public life."

Rhetoric starts wars and ends them. You're referring to "empty" rhetoric, I'm not.

"What stands behind free societies are competent lawyers, with standards of ethics that require them to get the law right."

Someone should explain to you that getting the law "right" is a talking point for Law and Order candidates and Catholic theologians, neither famous for their understanding of democratic principles. If you really want to start having fun with the moral responsibilities of teachers please explain why the colonization of Palestine by European refugees is still countenanced by so many of those responsible for the teaching of our children, including the author of this post. Please explain why men as contemptuous of democracy (if for different reasons) as Antonin Scalia and Richard Posner were
ever permitted to take the bar exam let alone to pass it. Please explain why Bill Clinton wasn't at the very least disbarred for killing a retarded man just so he could get the gun-nut vote in the '92 election. Please explain why teeny bopper bloggers gush over the chance to have their picture taken with the man.
You can't put the meaning of words under a microscope, only the structure. About meaning there's only continuous discussion and description. What are we? What do we stand for? What do we value?
You don't understand the "why" of academic freedom any more than Brian Leiter. But he understands the "how." And that's where we stand: over a million dead and arguing about tenure.
 

"Berkeley has an *independent* interest in its standards being met."

Exactly.

And that in a nutshell is Cal's pain.

How Cal is handling it, according to one blog report dated April 11: he’s been given just one class, the minimum and he comes and goes with little recognition or greeting.

This is probably the best Cal can do when one of its tenured professors goes batshit insane but hasn't been arrested for anything.
 

"How is the notion that private individuals or state agencies other than the justice system, with its procedural safeguards, has the authority to officially brand someone a criminal at all compatible with a workable notion of civil society?"

Several responses:

1. Berkeley doesn't need to "brand" Yoo as a criminal. It just needs to find that his conduct violated the Berkeley standards. This, by the way, happens all the time in the law. Someone might have committed a crime in breaching a contract, but the judgment for damages need not say this and in fact doesn't.

2. Even if Berkeley did have to do so, nobody has any problem doing this with OJ Simpson.

3. One reason there are procedural safeguards for people accused of crimes is that the consequences are so severe. Yoo would not face those consequences. In the worst case scenario for him, he'd lose his job. That's something our society (perhaps wrongly) doesn't protect for most people; any private employer could have fired Yoo yesterday for his conduct and he'd have no complaint.

Professors get favored treatment in this respect. Now there are good reasons for this, but we reaffirm those good reasons by giving Yoo the procedural protections not available to us at-will folks.
 

"Even if Berkeley did have to do so, nobody has any problem doing this with OJ Simpson."

Simpson was found guilty in a civil court.
 

"Berkeley has an *independent* interest in its standards being met."

Exactly.

And that in a nutshell is Cal's pain.

How Cal is handling it, according to one blog report dated April 11: he’s been given just one class, the minimum and he comes and goes with little recognition or greeting.

This is probably the best Cal can do when one of its tenured professors goes batshit insane but hasn't been arrested for anything.

# posted by jpk

Feith's employ/tenure with Georgetown has not been renewed. The institutional explanation struck as rather transparent. "We only hired him for a two-year period" -- and Feith's statement being "I want to do book stuff."

Methinks some in the academy are awakening to the reality and realization that "academic freedom" is not infinite and without constraints by values such as responsibility. Does not constitute a socially-approved except to the rules; a license which shields conduct for which lesser beings than professors would be held to account, even if only in the form of informal but overt public shunning.

I'll not name the Harvard law professor, but I can detail his unethical use of ethics as a decade's long pattern. Allowed and protected by tenure, the EXCUSE "academic freedom," and being politically connected. It's as difficult to get rid of such a thug -- as a society -- as it is to indite a John Yoo because the rules are used as excuses to do nothing.
 

Simpson was found guilty in a civil court.

Technically, he was found liable. And that's my point -- it isn't necessary for Boalt to make a formal finding of "guilty" in its administrative proceedings (which it can't do anyway). It's decision would merely find something to the effect that "John Yoo violated X provison of the Berkeley academic standards when he wrote memo #2 knowing a, b, and c."
 

This comment has been removed by the author.
 

Brian, I think you'd rather find it impossible for anything to be done academically about Mr. Yoo. The alternative is frightening and alarming to you. This is why your arguments wax between nothing can be done, nothing should be done and nothing was done in the past. Perhaps, but not very consistent arguments.

And unless I am incorrect, I have heard you say everything but: "Mr. Yoo should be teaching. Period." People who are very bright, and very smart, very often want to have their cake and eat it, too. I hear you address just about everyone else's views but your own in your essays.

That is both rational - and a surefire way to rationalize your own thinking. I think you'd rather find reasons, thoughts, philosophies, a fortune cookie... anything but having to say "I am Brian and Mr. Yoo should be teaching! I am Brian and Mr. Yoo should be teaching!"

For those of us who do not have the capacity to keep pushing off this personal onus, we have to confront that we may need to explore what to do about Mr. Yoo and his teaching.

I believe that people who are very sophisticated like yourself can push this onus off indefinitely.

Not quite the same as dealing with the problem though.
 

WSJ editorial board today:

... The targets of this witch hunt include some of the country's finest legal minds – such as law Prof. John Yoo of the University of California at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and William J. (Jim) Haynes II, former Pentagon general counsel. Others frequently mentioned include former White House Counsel Harriet Miers, former Attorney General Alberto Gonzales, and former Undersecretary of Defense Douglas Feith. ...

The country's FINEST LEGAL MINDS, indeed! Let us all thank WSJ for this badly needed remainder.
 

My God, I go away for a day, and this train wreck of a thread doubles in size! I only returned because "Cable Schmidt," above, felt it important to e-mail me his highly rational comments. I suppose it is worth observing that, apart from Mr. Schmidt's various psychological speculations, there is not a single response to any argument given in my post to which Sandy Levinson linked.

Since there's obviously no point in dealing any further with issues of substance in this particular forum, may I just note that the "Brian" posting on this thread is someone else, not me.
 

Cable: "Nothing can be done," "Nothing should be done," and "Nothing was done in the past" are not inconsistent propositions. They're just different, and you're correct that I am in effect arguing for all three. The inconsistency you allege, like the one Anderson alleges upthread, have more to do with confusing descriptive with normative claims: Just because I concede (lamentably) that nothing is likely to be done to Yoo in the near future does not entail that Berkeley should, indeed must, "do something" to Yoo now.

I offer no judgment for whether Mr. Yoo "should be teaching" because that is not my judgment to make. I haven't observed him teach; I haven't spoken to anyone who has observed him teach; I'm not even a law professor, so my opinion of his instruction on the subjects he teaches in class would be about as good as the average person's. Can you honestly say that you have a more informed judgment of his teaching to offer that is more than just "Yoo is a scofflaw and a bastard, so he MUST be a bad teacher of law"? I'm open to persuasion on that point, but as Anderson conceded upthread, it's a point that requires argument, and Berkeley has no grounds at present I know of for instituting a fishing expedition to go looking for grounds for it.

My position boils down to this: By granting him tenure, Berkeley has in effect promised Yoo (and its other faculty) a large degree of immunity from just the sort of investigation and censure so many on this blog are seeking-- the "nothing can be done" and "nothing has been done in the past" points. (If Douglas Feith was only working on a two-year contract at Georgetown, then he obviously wasn't promised tenure, so his case doesn't illuminate anything here.) Berkeley re-granting of tenure to Yoo after he came out of government might have been unwise. But once they gave it to him, they tied their hands.

My reasons for "nothing should be done," at least by Berkeley, right now, are different: They have to do with the morality of promises, the role of proper authority in prosecuting criminal activity, and, yes, intellectual freedom. I haven't given a drawn-out defense of my position on those matters here, but that's a discussion I like having.
 

BL: Thanks. Brian Leiter's in Texas; I'm in Kentucky. It's just a coincidence that we largely agree on this matter and have the same first name.
 

Here is an interesting take by David Rivkin and Lee Casey on Yoo and his critics.
 

Leiter: there is not a single response to any argument given in my post to which Sandy Levinson linked

That would be because the post failed to engage the serious arguments for investigating Yoo, and instead focused on straw men.
 

I offer no judgment for whether Mr. Yoo "should be teaching" because that is not my judgment to make. I haven't observed him teach; I haven't spoken to anyone who has observed him teach; I'm not even a law professor, so my opinion of his instruction on the subjects he teaches in class would be about as good as the average person's.

I've seen one post at Volokh by someone claiming to be a Boalt student that Yoo is actually a good teacher.

For the record, I used the word "claiming" only because the nature of the internet is such that we can't verify posters' claims. I have no reason to doubt the claim.
 

Brian Leiter: I followed all your arguments until you stated (regarding a hypothetical Professor OJ Simpson):

Regarding O.J. Simpson: he was found civilly liable for wrongful conduct, which should surely be sufficient to trigger university disciplinary proceedings.

Nothing in your arguments supports that conclusion at all.
 

Also, I am somewhat surprised that someone arguing for academic freedom and freedom of speech remarked after ...just six posts... about the "the breathtaking irrationality" of people's views.
 

I've seen one post at Volokh by someone claiming to be a Boalt student that Yoo is actually a good teacher.

Commenter Ugh, a good fellow who hangs at ObWi & such, has said the same; apparently he took con law from Yoo back in the day. No wacky royal-president crap.

Still, if I were Berkeley's dean, I would be sure to sit in Yoo's class on the day that Youngstown came up.
 

"Bart" DePalma:

Here is an interesting take by David Rivkin and Lee Casey on Yoo and his critics.

The WSJ OpEd page.... Nice headline: "The War on Terror Is Not a Crime"

Not exactly the point.

From the article:

The targets of this witch hunt include some of the country's finest legal minds – such as law Prof. John Yoo of the University of California at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and William J. (Jim) Haynes II, former Pentagon general counsel. Others frequently mentioned include former White House Counsel Harriet Miers, former Attorney General Alberto Gonzales, and former Undersecretary of Defense Douglas Feith.

Douglas "FSMOTFOTE" Feith?!?!? The liar (and "LTM-deficient") Gonzales? Miers? She of the "executive privilege", with a CoC resolution against her already approved? Then there's Yoo, Bybee, and Haynes.....

Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.

What a steaming crock!!! Most of the maladministration positions have been struck down in an embarrassing series of court cases.....

that the country is engaged in an armed conflict;...

No opinion has held that we are in a state of war.

that captured enemy combatants can be detained without criminal trial during these hostilities;...

An unremarkable and uncontested proposition. That wasn't what was at issue.

and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.

Once again, an unremarkable position. What was struck down was the contention that the gummint's kangaroo 'courts' could be used instead.

Pretending that the gummint's positions have prevailed is sheer nonsense.

Cheers,
 

More from the WSJ article:

"Lawyers can and do disagree over the administration's conclusions. However, it's now being claimed that the administration's legal advisers can be held responsible for detainee abuses.

"This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct. Those who mouth this argument are engaged in a kind of free association which, if applied across the board, would make legal counsel infinitely culpable."


Let's see:

The lawyers can't be held responsible, because they were only giving legal advice, and didn't actually order the torture.

The maladministration and its minions that actually did the torture can't be held responsible, because they were following legal advice.

"Ally-ally-in-free!!!!"

What a deal. Next time I'm going to rob a bank, I'll hire some compliant lawyers first....

Cheers,
 

You know Arne, every time you read a WSJ editorial your IQ drops 5 points.

I personally stopped after 40.
 

Arne and Mark: How does someone like Leiter respond to the problem of the loop you refer to: lawyer advises, not responsible for advice; client advised, not responsible for listening.

Except for calling us irrational, I haven't really heard the answer to this?

It seems Mr. Leiter's very rational reasoning is in reverse a blueprint for doing exactly what the administration has done.
 

Arne and Mark: How does someone like Leiter respond to the problem of the loop you refer to: lawyer advises, not responsible for advice; client advised, not responsible for listening.

He condemns Yoo on substantive grounds. He just doesn't think Berkeley is the right forum to establish that. I suspect he'd say that the right forum is the relevant Bar Association or a prosecutor (if there was an actual conspiracy).

Whether anything will happen in either place is, of course, problematic. That's one reason why I favor moving forward somewhere. If Boalt had the courage to stand up and condemn Yoo, others might feel the pressure to begin their own investigation. The more people pass off their responsibility to someone else, the less likely it is that anything will be done at all.

But we're good Germans, all of us.
 

That's sort of my problem with it.

I'm also surprised that no one has suggested that Boalt could simply ask Mr. Yoo to resign.

There is nothing in the rules against saying "You have tenure, but we don't support you. We'd prefer if you left." The equivalent happens in the corporate and political world all the time.

Mr. Yoo would be free to stay if he chose and academic freedom is preserved. In fact the other faculty MUST have the freedom to ask Mr. Yoo to "pretty please leave."

It does sound chilling, but again, in Leiter's arguments academic freedom is the 10,000 pound gorilla. Yoo is free to say what he wants and the professors are free to tell him where to go.

In fact, what a bunch of nonsense. Yoo's memos are just advice, but a letter campaign against Yoo is "disgraceful" says Leiter, who then advocates a protest on this "blatant attack on tenure and academic freedom?"

Isn't the letter campaign just advice? Doesn't what Leiter is advocating sound awfully similar to what he calls the irrational posting on this board.

No wonder Leiter gives me a headache. He blasts people writing their opinions about academic freedom (what he calls an attack) then attacks himself (what he calls writing).
 

I'd just like to add that it has occurred to me what has bothered me so much about Leiter's writings.

I think Leiter has gotten so caught up in defending Mr. Yoo that he's forgotten that Yoo's very advice fosters an environment that is anathema to freedom of speech and academic freedom.

He keeps beating the drum about academic freedom regarding a legal theory of torture that has a substantial chilling effect on society as a whole. As he has been quick to comment, people are quite apoplectic about it. And no, not just the practice, but the advice. He cannot deny this, as he has been quick to point out that people are criticizing Mr. Yoo's ideas.

I get the feeling that Leiter doesn't like the idea that other people's speech may make it very uncomfortable for Mr. Yoo to speak freely.

But that's just what Leiter doesn't get in his writing. Mr. Yoo's writings have made many of us very uncomfortable.

This is what has bothered me so much. Leiter is defending the free speech... of someone who is chilling free speech.
 

Leiter is a tough nut to crack. For he makes eminent sense when one reads him, moments later however you feel as uneasy about the whole situation as ever, at least I do. So let me try another angle.

Yoo is a naturalized US citizen. The current citizenship requirements include demonstration of good moral character or at least no evidence to the contrary.

Now according to Wikipidia sources:

In explaining the Unitary executive theory, Yoo made the following statements ... :

prof. Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?

Yoo: No treaty.

Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.

Yoo: I think it depends on why the President thinks he needs to do that.[23]



I think we all, including Mr. Leiter, agree that willingness to condone "crushing the testicles of the person’s child" is totally incompatible with any concept of "good moral character". (Think Auschwitz if you have a problem here.)

It would follow then that on moral grounds he wouldn't even qualify for US citizenship, yet apparently there is no problem with his moral character as far as Berkeley is concerned.

Clearly UC has considered his moral character before they first hired him (good moral character is generally required for people in position of public trust or those who deal with youths) so the question to Mr. Leiter is:

Should universities really ignore widespread public allegations that the faculty member have lost his/her moral compass and debased himself publicly when that debasement doesn't reach the level of externally prosecutable criminality?


---

Mr. Leiter writes also ... John Yoo ought to be held morally culpable for his work, and he has been and will be. In that regard, he is not getting away with anything that he is not, as a matter of law, entitled to "get away with." .

If so how do we understand that deafening silence from his own colleagues at Berkeley? They seem to be condoning not condemning.
 

As he has been quick to comment, people are quite apoplectic about it.

As they should. William Lloyd Garrison had this one right:

"I am aware, that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! no! Tell a man whose house is on fire, to give a moderate alarm; tell him to moderately rescue his wife from the hand of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; -- but urge me not to use moderation in a cause like the present."
 

Sounds like there is a majoritarian understanding of the Berkeley tenure rules such that complicity in a conspiracy to commit torture is a violation.
 

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