Balkinization: More on Yoo

More on Yoo

Stephen Griffin

Sorry if yesterday's post was a bit cryptic. I do not favor going after Professor Yoo's tenure or impeaching anyone. As a practical matter, this won't accomplish anything and serves to distract attention from the more interesting questions raised by the affair of the torture memos. Sorry for the intemperate nature of this observation, but the arguments behind detenuring or impeachment are no better than the arguments for impeaching Reagan (Iran-Contra), Bush I (same), Clinton, Bush II, or the judges that stopped the Schiavo legislation. Cry Impeach! if it makes you feel better, but I prefer Off with their heads!

Does setting aside impeachment/detenuring mean there are no important questions raised by the torture controversy and Yoo's academic career, both pre- and post-torture? Hardly. For one thing, if we step back just a bit from Yoo we might notice that despite the very questionable nature of his analysis, not everyone is running away from him. The sound of condemnation is loud, but in the meantime a lot of unitary wartime executive theorists are keeping their powder dry. We also might reflect on the points made about Yoo in Neal Katyal's New Republic review of Jack Goldsmith's book about the limits of academic creativity. Didn't Yoo's experience in the 1990s academy encourage him to use his new ideas in service of his country? As long as articles appear well-researched and advance bold claims, isn't the author welcomed into the fold? Perhaps Yoo's early articles will turn out on reinspection to be too freewheeling, but that wasn't caught in the academic atmosphere of the 1990s. I'll try to illustrate what I mean if I can dig out some reviews of Yoo's first book.

Final random thought. Remember the expulsion of the crits from the temple in the 1980s? I was reminded of this academic fiasco by Steven Teles's book. At one point, crit ideas were deemed so dangerous/questionable that Derek Bok appointed an outside committee to vet crits up for tenure at Harvard. Crits were accused of undermining the rule of law and thus in need of special scrutiny. There's some sort of massive irony here that I'm just missing for lack of a good night's sleep. Crits a threat? How rich! What fools we were! Who knew that it would be patriotic conservative lawyers who would have us reaching for our casebooks and checking whether Youngstown was still there? Indeed, times have changed.

Posted 10:47 PM by Stephen Griffin [link]

Comments:

Well then, what DO you think ought to be done?

Even if you favor criminal prosecution, you still should favor every other expression of social contempt we can muster. That includes impeachment, disbarment, firing, or spitting in their drinks. Treat them the way society treats child molestors. Those are their moral equivalents.

# posted by

Mark Field : 11:43 PM

"As a practical matter, this won't accomplish anything..."

What does that mean? As with any other kind of punishment, it deters other people. It teaches. We don't send people to prison for crimes because it accomplishes anything as a "practical matter."

"...no better than the arguments for impeaching Reagan (Iran-Contra), Bush I (same), Clinton, Bush II, or the judges that stopped the Schiavo legislation..."

No. No. No. No. No. No.

This is about crimes against humanity.

# posted by

Seth : 11:50 PM

Can Balkinization get some commentary from anyone who actually understands why we had the Nuremberg Trials?

# posted by

Seth : 12:04 AM

Seth:

I think that what you are seeing here is the reaction of law professors to a threat to their tenure. And, I have to concede-- though I would go after Yoo's tenure, personally-- that it certainly poses at least a tangential threat to tenure if a law professor is removable for off-campus activities that do not rise to the level of a criminal conviction.

The thing is, you are right, the flip side of this is that if we believe that a lawyer who intentionally gives false advice to aid in the commission of war crimes (and yes-- to the Bart DePalmas of the world-- I realize this hasn't yet been proven, but this is the claim that people are making when they contend that Yoo is a war criminal) is a war criminal, then it seems to me that you can't seriously argue that if a law school is substantially certain that a professor committed war crimes (whether or not a criminal prosecution is ever brought), he should stay on the faculty.

Imagine if Yoo had personally performed torture. Do we have any doubt that Boalt would seek to fire him whether or not the government prosecuted him?

I suppose that the fear is that conservatives will cite a Yoo firing as a precedent to go after tenured professors who do things in Democratic administration or on the courts. But what things, exactly? If we aren't talking about war crimes, it seems to me the cases would be distinguishable.

In any event, that is what you are seeing here. Tenure is considered by many academics to be the backbone of academic freedom. (I think, in point of fact, that this may be overblown and that you can have academic freedom without tenure, but this is what professors believe.) So anything that looks like tenure is being overridden for ideological reasons sets off alarm bells.

# posted by

Dilan : 1:12 AM

So, basically, tenure trumps crimes against humanity, and we shouldn't impeach because other people got away with it.

# posted by

ADamiani : 3:46 AM

The background in this post on the "Crits" suggests "Academic Torture" suffered by law teachers/professors seeking/awaiting tenure. Might the behaviour of the latter be compared to what judicial nominees might say during confirmation proceedings and what they do after their appointments? The Constitution provides life tenure for Supreme Court Justices. There is so such requirement in academia. Since all of us have the benefit of the speech clause of the First Amendment, it is as appropriate for us to speak out not only about the Justices but also Yoo and other academics. Public opinion does not violate the cruel and unusual clause, although it may be tortuous at times for some.

# posted by

Shag from Brookline : 6:27 AM

I think you do not get it. This is not patriotism and the point is that the Yoo is a person of interest with regard to a number of crimes that are peremptory norms of international law. I am not aware of crits being anywhere near that - except maybe jaywalking.

I agree with Mark, you need to do all these things at the same time.

As a practical matter, things are done when they are done. All these persons who say it can't be done are a litany that is just fatiguing. The subtext is really that they do not want to do it, and they do not want someone else to do it as it will show them up. That's it.

Nothing trumps peremptory norms or erga omnes obligations. Nothing.

Best,
Ben

# posted by

Benjamin Davis : 9:45 AM

This comment has been removed by the author.

# posted by

Ginger Man : 10:34 AM

Gosh, you suggest revoking tenure and formerly cogent law professors start spointing incoherencies.

First, I bristle at Steve's lumping together of a number very, very different cases into one incoherent jumble: The arguments in favor of impeaching Reagan and Bush I over Iran-Contra or Bush II over, well, virtually everything having to do with Iraq, detainee treatment, and domestic surveillance (just for starters) -- whether you deem them persuasive or not -- are of a vastly different character from arguments in favor of impeaching the Schiavo judges or Clinton. I should hope that this point does not require extensive elaboration.

I'm also less interested in pursuing "interesting questions" than I am in securing some kind of official accountability for the (in Yoo's case) the premeditated legitimation of war crimes through extra-legal means and (in the cases of Bush, Rice, Addington, Cheney, and yes Powell) the extra-legal authorization of war crimes. Sadly, the latter is highly unlikely. The best I think we can hope for is some kind of truth commission inquiry, which would be something.

One might well ask, then, why focus on "detenuring" Yoo? It's quite simple. Since we know that the Justice Department is at present hopelessly debased and corrupted (thus, no criminal investigations will happen) and our political system is failing (far too many democcrats are hopelessly compromised here, and they're to chickenshit anyway, having developed a learned helplessness response to wrongdoing in the "foreign policy" spehere), those institutions are not going to act.

In the face of this, Berkeley has an opportunity to show that there is some institution left in the U.S. that is willing to take on the fact that -- through 'principals' (Bush, Cehney et alios) and factotums (e.g., Yoo, Gonzalez) alike -- our Constitution has been perverted for the basest of ends, and declare that it is intolerable for a particpant in the scheme to teach law to future lawyers, judges, and legal academics.

The atttempted analogy to the travails of the crits is entirely inapposite. This is not about mere ideas or theories; it's about actions done under the color of law. It's also about professional standards. The consensus (and correct) view is that Yoo's torture memoranda are execreable pieces of legal work. They entirely ignore the most salient authorities (Youngstown, the CAT, the Captures Clause) and distort those that they do treat with. They are riven with intellectual dishonesty, of the rather evidently advertent kind.

On the basis of the documents alone, it is clear that -- on a subject of the gravest moment and from a position of awesome responsibility -- Yoo engaged in atrocious lawyering for evil and unlawful pruposes. And the two are quite related, for there is no competent way to arrive at the conclusions that the memos were designed to arrive at ahead of time. (You can't for instance, say that any effort by Congress to regulate the treatment of wartime detainees violates Article II without ignoring the fact that Article I expressly grants Congress that power.)

I understand that tenure is something of a shibboleth (at least to academics who have it). I believe that its role in preserving academic freedom is way overblown (indeed, it pushes ideological policing to the initial grant-or-deny phase, and its done quite effectively there). And, to be sure, my somewhat jaundiced view of tenure influences my belief that revocation is appropriate here. But you don't have to be a tenure-skeptic to come to this conclusion. Yoo's work is altogether too egregious on too many fronts -- and carries with it such awful consequences -- that to revoke his tenure on this basis simply can't be equated with thought control.

# posted by

Ginger Man : 10:39 AM

Imagine if Yoo had personally performed torture. Do we have any doubt that Boalt would seek to fire him whether or not the government prosecuted him?

I wish I could be confident that this was true. In light of recent events, I'm afraid that we've reached the point where people would defend Yoo's tenure "even if he personally operated the gas chambers at Auschwitz" (Note to Dean Edley: for which, btw, Yoo could not have been convicted of any crime under German law).

Nihilists.

# posted by

Mark Field : 10:42 AM

Hilzoy made my point better than I did.

# posted by

Mark Field : 11:05 AM

Center for Constitutional Rights Supports National Lawyers Guild Call for Dismissal and Prosecution of John Yoo

by Marjorie Cohn

http://www.globalresearch.ca/index.php?context=va&aid=8710

Actually, she advocates broadening the scope:

"But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S. laws."

# posted by

Ningen : 2:49 PM

"the arguments behind detenuring or impeachment are no better than the arguments for impeaching Reagan (Iran-Contra), Bush I (same), Clinton, Bush II"

Excepting Clinton, if the case behind detenuring is as good as those then Yoo should clearly be detenured.

There is a strain of contrarianism and self-serving defense of any conceivable threat to tenure going on in some recent posts here that frankly makes me sick.

# posted by

The Fool : 4:41 PM

"Does setting aside impeachment/detenuring mean there are no important questions raised by the torture controversy and Yoo's academic career, both pre- and post-torture?"

Since when does the lawless maiming and killing of presumed-innocent human beings in the real world "raise questions" but not compel acting on the facts of the lawlessness?

Since when is that lawlessness and its consequences mere "opportunity" for "academic discussion" for and by those human beings?

# posted by

JNagarya : 10:33 AM

"But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S. laws."

"# posted by Ningen"

It is ALSO part of the report that LAWYERS Gonzales, as counsel to Bushit, Addington, as counsel to Cheney, and Haynes, while at his DOD position, personally dropped in at Abu Ghraib to watch their handiwork applied to real human beings.

And yet Addington, I note, still retains tenure at the White House. Perhaps that should be the threshold for Yoo at Boalt -- unless and until he actually goes beyond merely doing the same, his tenure is protected?

# posted by

JNagarya : 10:38 AM