Balkinization  

Thursday, August 20, 2009

Dean Edley on Professor Yoo

Deborah Pearlstein

Controversy continues to surround John Yoo and the memos he wrote while a Justice Department lawyer that were used as the legal basis for torture in U.S. interrogation operations. Under the circumstances, I thought it appropriate to reprint here an email recently circulated to UC Berkeley faculty, administration and students by Dean Christopher Edley of Berkeley Law School. (Happy to hat tip the sources who passed the email along, but I'll defer for now in case they'd prefer to remain anonymous.) Dean Edley is responding to substantial public protests surrounding Professor Yoo's return to his tenured professorship in law at Berkeley. In the interest of full disclosure, I should say I am grateful to have had Chris Edley as a professor when I was a law student. Far more to the point, however, I thought the email was thoughtful, important, and worth consideration. It's reprinted in its entirety below.


The Torture Memos, Professor Yoo, and Academic
Freedom
Statement of Dean Edley
August 20, 2009


While on leave of absence from Berkeley, serving as a Deputy Assistant Attorney General in the Bush Administration, Professor Yoo wrote and contributed to memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our nation's efforts to combat terrorism. The controversial reasoning and conclusions in these documents have been widely criticized in the academic literature, the media and in protests stretching over the past two years or more. Locally, I have received thousands of communications criticizing Professor's Yoo's continuing presence at Berkeley Law. In recent weeks protestors have frequently gone to Professor Yoo's home and posted signs in his neighborhood. Now, protestors have intentionally disrupted our classes and threatened to continue—not just assembling to voice their views, but attempting to prevent Professor Yoo from teaching, to the detriment of students who have chosen to enroll in his course. Other classrooms are also affected.


As dean I feel obliged to comment. Nonetheless, I speak only for myself in the following remarks, with no expectation that I will completely satisfy anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley's classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while away from the University somehow place him beyond the pale of academic freedom today, when he is back on campus? If this were some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that a still easier case.

Or consider the more contemporary possibility of a pro-choice professor, who wielded power while on leave serving in government, or gained notoriety leading weekend rallies. The professor is attacked at his college, a socially conservative place where the prevailing view is that abortion is murder and active defenders of a woman's right to choose are complicit in infanticide. In Professor Yoo's case, additional things are obviously in play. Gravely so, because some of the views he authored while a professor were merely controversial back then; while in government those same views became consequential.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses; this includes most though perhaps not all of his Berkeley Law colleagues. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda—about
tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law that he finds bothersome or interfering. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn a challenging or even abhorrent idea, but I do not believe that in a university we can fearfully refuse to look at it.

That would not be the best way to educate, or a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda declared available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. The law does not criminalize very immoral act, however, and there is a strong argument that these more direct actors get a "pass" because they relied on the DOJ memoranda. (Even if Rumsfeld thought his actions were legal, that didn't make his choices moral.)

Lawyers, on the other hand, should not have blanket immunity for all their advice and actions, no matter what. But it does matter to me that Yoo was an adviser, while President Bush and his national security appointees were the deciders.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demanded greater, not reduced, vigilance for constitutional rights and safeguards.

What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach or even a war crime? It
is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here at the University of California is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents: Types of unacceptable conduct: … 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. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate. But I will put aside that shield and state my independent and personal view of the matter:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo's academic performance now? Did writing the memoranda, and any related acts, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

When the Attorney General releases the results of DOJ's internal ethics investigation, I and many others will review it carefully and consider whether there are implications for this campus. In all candor, I doubt that there will be. Non-clinical faculty need not be a member of a bar, and Professor Yoo does not teach our courses on Professional Responsibility.

On the other hand, prosecution, followed by conviction and unsuccessful appeal, would be a very different matter. As a board member of the Obama Presidential Transition, I argued that fidelity to the Rule of Law requires investigation of possible criminality by officials in the previous administration, despite the political cost of being attacked for conducting a "witch hunt". My belief then, and now, is that only in a court of law can we have definitive findings of fact and conclusions of law. We need both. My friend Eric Holder, Attorney General of the United States, should either pursue the matter, or tell us that he believes there was no criminality. We need to know what happened, and not just from journalists. We need to know where the
boundaries of lawful conduct are in combating national security threats. We need
to know when legal advice and advocacy become criminal.

University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core.



Comments:

This letter is annoying in that it puts forth various strawmen upfront that provides what amounts to a smokescreen. Very Yoo-like, you might even say.

(1)"expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes"

Not what people are concerned about ... this is not just about "views" alone

(2) "abortion is murder and active defenders of a woman's right to choose are complicit in infanticide"

This is not about some libs annoyed he worked for the Bush Administration & in the process (legitimately) promoted views they find offensive

(3) "My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses; this includes most though perhaps not all of his Berkeley Law colleagues"

Simple "disagreement" is not a problem, though we are getting closer, if said "disagreement" is based on the fact it is patently absurd

(4) "abhorrent idea"

This is not about "abhorrent ideas" he had alone.

(5) "his conduct" ...

This is getting somewhere. He in effect was involved in "speech acts," aiding and abetting "conduct" that many deem illegal. This is where "academic freedom" starts to look less defensible

(6) "morally equivalent to that of his nominal clients Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time"

First, ultimately, his "client" ethically was not Rumsfeld, but the law. He had a special ethical requirement to not just be an enabler for "clients" but to interpret the law, even if his clients didn't like the results.

Second, there is clear evidence that his 'conduct' here was not used "distant in time," but covered what was already done and done soon after. Not that you would know it from this CYA effort.

(7) "Yoo was an adviser, while President Bush and his national security appointees were the deciders."

Yes, Yoo is not as guilty in certain respects, but this doesn't really benefit him in this specific context. The matter of specific concern is Yoo & his ability to be an ethical member of the facility. On this level, as to respect for the law, Yoo comes off on some level worse than more political officials.

(8) "Was there clear professional misconduct"

People with much greater knowledge of the law than I say "YES!"

(9) "no university worthy of distinction should even contemplate dismissing a faculty member"

This letter is not worthy of such an institution. But, I appreciate that it was printed here.
 

Dean Edley's statement is pretty convincing to me. The odds of criminal guilt or professional discipline seem small. More likely, the DOJ will issue a scathing report and the Pennsylvania bar will not take action. If that's the case, it seems that Berkeley will not move against Yoo. Likewise, if Jose Padilla's civil action succeeds (which I doubt, given his high hurdle on causation), Berkeley won't see that as grounds, either.

One more comment, in response the prior commenter, who said:

"First, ultimately, his 'client' ethically was not Rumsfeld, but the law."

There's no support for the second half of that statement (i.e. the client was the law). For some reason you do hear claims like that from time to time, but you rarely even see someone try to support it. Within the context of the law governing lawyers, the idea that the law is the client doesn't even make sense.
 

This posting is very interesting to me. While I agree in almost entirely with the contents of the letter, I wonder where the staunch defenders of academic freedom where when the University of Colorado at Bolder was firing Ward Churchill for controversial statements that provoked a witch hunt by the likes of Bill O'Reilly and Fox News.
 

This paragraph in the Dean's statement may require further study:

"There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda declared available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. The law does not criminalize very immoral act, however, and there is a strong argument that these more direct actors get a "pass" because they relied on the DOJ memoranda. (Even if Rumsfeld thought his actions were legal, that didn't make his choices moral.)"

How can we find out what Yoo believes? The Dean does not seem to know.

Do we know if Yoo was "exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring" as the Dean seems to be?

If, as the Dean suggests, the "client" gets a "pass," then perhaps there needs to be a closer examination of the right of the client to rely upon the advice or opinion of counsel. If such a "pass" is taken away from the "client," then perhaps the counsel's advice or opinion needs to be looked at more closely. Also, what if the "client" does not strictly follow the advice or opinion of counsel and counsel becomes aware of this: does counsel (especially government counsel) have some obligation to speak up - or just keep quiet on the basis of attorney/client privilege? Has Yoo kept quiet?
 

"odds of criminal guilt or professional discipline seem small"

OTOH, ongoing litigation, legal opinion from various sources, etc. put forth a different p.o.v. Nonetheless, if we take this as true, a lot of my concerns still hold.

It is also suggested that there is "no support" to my argument that "ethically" (not "the law" on the books as such) his client was the law. Oh, and when it is raised it rarely is supported.

I repeated have seen it defended but of course I don't know what you have seen. Basically, I don't understand the problem. A lawyer is a professional with certain ethical obligations. S/he cannot supercede them in the promotion of the client.

Perjury might benefit the client, but the lawyer has ethical limits in this respect. Who is in a superior position here? When two things compete, the superior is the one who wins out in the end.

OLC "Best Practices" as spelled out by Steven Bradbury promotes the general point:

Accordingly, it is imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned. The value of an OLC opinion depends on the strength of its analysis. Over the years, OLC has earned a reputation for giving candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers.

The OLC has a special ethical obligation, which is why many lawyers and past members are so troubled by Yoo et. al., to serve as advisors of the law, not mere advocates of one point of view. It is its marching orders.

Shag raises more questions. I'd add more:

We need to know when legal advice and advocacy become criminal.

University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core.


Personally, I would think law faculty would be "competent" to bring some light to these questions. They are statements of law in part, not just fact that a criminal investigation would bring to light. If a law school is not one place to help determine what the law is, what exactly is it's point?

I also don't think "trying" will "imperil values at [their] very core."

Finally, the "court of law" test is convenient, since for prosecutorial discretion and political reasons the Obama Administration is apparently under no desire to do much in that department.

The fact his "friend" Eric Holder is involved does not change this.
 

The NYT "room for debate" blog is debating this very issue.
 

Joe's posts nail it. The bulk of Dean Edley's memo is simply irrelevant to the issues raised by critics and seems designed to prejudice the issue in Yoo's favor. When the Dean does reach the actual point of contention, he limits himself to the discussion of criminal actions. These are NOT the only basis for faculty discipline (Standards are here.

The Standards consist of two basic parts, namely ethical guidelines and "types of unacceptable conduct". It's critical in understanding these Standards that the "types" are merely examples and do not limit the University from proceeding in other cases as well. Specifically,

"The Types of Unacceptable Conduct listed below in Sections A through E are examples of types of conduct which meet the preceding standards and hence are presumptively
subject to University discipline. Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action if they also meet the preceding standards." My emphasis.

With this in mind, it's easy to see that Dean Edley is not giving a full and complete assessment of the issues in at least two respects. First, if the principles of academic freedom were somehow to apply to Yoo's conduct as a lawyer, as the opening portion of his letter suggests, he failed to mention the relevant Standard.

The Standards provide that "Violation of canons of intellectual honesty, such as research misconduct..." are unethical and subject to discipline. Yoo's critics, including those here, have repeatedly argued that his memos were intellectually dishonest.

Second, contrary to the implication of Dean Edley's letter, discipline is NOT limited to cases of criminal misconduct which results in conviction. That is merely a "type" of misconduct, that is, an example of the misbehavior which can lead to discipline.

In addition to these glaring omissions, Dean Edley's focus on criminal conviction allows him to omit another important question: whether the university has an independent obligation to investigate Yoo's conduct without waiting for the Justice Department or a State Bar. Clearly it does -- the Standards state that

"Conduct which departs from these precepts is viewed by faculty as unacceptable because it is inconsistent with the mission of the University. The articulation of types of unacceptable faculty conduct is appropriate both to verify that a consensus about minimally acceptable standards in fact does exist and to give fair notice to all that departures from these minimal standards may give rise to disciplinary proceedings."

In short, violation independently affects the university, which therefore has an independent obligation to investigate. In failing even to consider this issue, Dean Edley does a disservice to his readers and to the University he represents.
 

One aspect of Professor Yoo's work at OLC that should not escape notice is that the Bush Administration itself came to repudiate a great many of his conclusions as legally untenable. Indeed, October 2008 and January 2009 OLC opinions were primarily devoted to reciting the various positions taken by Professor Yoo that OLC (the Bush Administration's OLC) had concluded were unsupportable.

Law school is preprofessional education. Only a tiny fraction of law students enter the academy. The people who pay the bills, by and large, are seeking the skills necessary to succeed in the practice of law. Professor Yoo, however, failed to provide tenable legal advice. If he lacks the ability to produce legal positions that can withstand even the client's scrutiny, it is far from clear to me how he can be expected to impart the essential preprofessional skills to his students.

Larry Rosenthal
Chapman University School of Law
 

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics.

One could more accurately apply this observation to the criticisms leveled at Yoo.

Critics of Yoo's thankless attempt to identify an objective scope for a completely subjective definition of torture is based completely on their political opposition to Yoo's results.

The only crime for which Yoo is guilty is a thought crime rather than a transgression of actual law. Isn't tenure meant to protect acadmics from thought crime prosecutions?
 

The problem is that Dean Edley simultaneously rejects an "inquiry" as being "chilling" while stating in conclusory terms that it is unlikely that the facts would suggest Yoo violated law or ethical standard.

How does the Dean know?
 

The problem is that Dean Edley simultaneously rejects an "inquiry" as being "chilling" while stating in conclusory terms that it is unlikely that the facts would suggest Yoo violated law or ethical standard.

I may have misread the Dean's statement but I thought that he doubted whether the DOJ ethics investigation would have implications for Yoo's status at UC-Berkeley. In other words, it seemed to me that Dean Edley was preparing the world for the outcome where the DOJ report is scathing as to Yoo's ethics, but UC-Berkeley does not use that as a basis to attack tenure. There could be many reason for that outcome.

First, IIRC, the DOJ lacks discipline power over Yoo, and its findings will not be a verdict or judgment. (Less charitably, where the DOJ lacks power to discipline its report would be characterized by Yoo's defenders as toothless and even gratuitous.) Second, the Pennsylvania state bar presumably wouldn't try to give the DOJ report res judicata effect. Third, Pennsylvania state bar may decide not to wade into the issue at all. Fourth, Pennsylvania may decide that its statute of limitations for professional discipline has long since run. Fifth, the findings by DOJ or Pennsylvania may concern professional incompetence rather than willful misconduct, and as such may not be grounds for tenure revocation.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics.'

Just as an aside, I distinctly recall being told in law school (mid-80s; lefty professor) that to assert that there is meaning in law other than politics is to speak naively or in bad faith.
 

There is one characteristic of Professor Yoo's that is never mentioned. When he wrote the memos, he was a very young man. He had no experience in the real world, and his clerkship with Justice Thomas does not count as real world experience. He probably would be insulted if someone had called him a "kid" at the time he wrote the memos, but that was basically what he was. He was way, way, way over his head.

When Cheney and Addington
told him what they wanted, he did not have the strength of experience to draw upon, to resist their demands. He was a youngster, with a high legal IQ, but no experience to help him through the crisis.

Another word that is rarely used when describing Cheney, Addington & Bush after 9'11 is "panic." But that is what they did----they panicked. And their panic attack lasted about three years. It was in this atmosphere, when the top political leadership was panicking, that young wet-behind-the-ears Yoo was called upon for his opinion supporting Cheney & Addington's views.

He did not have a chance. He too panicked.

dah
 

An elegant catch 22: The lawyer is not responsible for the actions his analyses lead others to take, the others are not responsible for their actions because the lawyer has told them it is OK.

The good Dean knows this is a nonsense, but it is a smokescreen.
 

no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place.

I don't understand why his conduct is not morally equivalent to that of the others named. Yoo was arguably an important part of a conspiracy to violate the law, just as Rumsfeld and others were.
 

Yoo was in his 30s and already was general counsel for the Senate Judiciary Committee as well as being a professor and a law clerk for a judge and justice. Plus, he had (with the others) a strong view on executive power plus probably a comparable cynical take on use of power in general.

So, perhaps immaturity and fear had something to do with it (see also, the power given to the likes of Monica Goodling) but I wouldn't exaggerate the point.
 

Glenn Greenwald today noted:

Holder did not release today, but instead continues to conceal, the OPR Report which, it has long been reported, concluded that the DOJ lawyers who authored the torture memos (at least John Yoo and Jay Bybee) violated their ethical duties by producing legally fallacious conclusions -- i.e., they issued those memos in bad faith.

This seems relevant to Mark Field's comments. But, Balkinization continues an almost consistent CYA act here, honoring those who do the CA. One person the last time (IIRC) this was discussed sneered at a semi-regular contributor, showing academic freedom works well, unless students and lawyers offer something that challenges one of their own.

Again, this is distasteful business, and strong jeremiads about how "the people" aren't being good citizens or letting things go to pot because they are brainwashed into letting the PTB delay real change might start a bit closer to home.
 

Mark Field:

Thanks for finding all those relevant parts of the Academic Personnel Manual. I wish I would have read up to your post before I went hunting myself.

I did find some other parts that's worth mentioning and supports what you have quoted :
In the "Part II – Professional Responsibilities, Ethical Principles,and Unacceptable Faculty Conduct", it specifically talks about ethics being the over-riding principle and that the examples (just like you said) are just that.

Under B. Scholarship:
"They practice intellectual honesty."

Under C. The University
Ethical Principles.
"Professors give due regard to their paramount responsibilities within their institution in determining theamount and character of the work done outside it."

Under Types of unacceptable conduct:
"7. Serious violation of University policies governing the professional conduct of faculty, including but not limited to policies applying to research, outside professional activities,"

Under Part III – Enforcement and Sanctions,
"B. In the development of disciplinary procedures, it is recommended that each Division adhere to the following principles:
2. There should be an appropriate mechanism for consideration and investigation of allegations of misconduct received from members of the faculty, staff, students, the administration, and other members of the University community."
I believe numerous students and faculty have lodged complaints which have not been followed up.

Under C. Standards for Determination of Incompetent Performance
2. Teaching
(a) Intellectual Content
The intellectual content of the faculty member’s teaching as judged from such sources as evaluations by current and former students, colleagues’ assessments, and teaching portfolios, is so far below the professional standards of university-level instruction in the discipline that it is a disservice to students to permit the faculty member to continue to teach"

Under 210-1 Instructions to Review Committees Which Advise on Actions Concerning
Appointees in the Professor and Corresponding Series
d. Criteria for Appointment, Promotion, and Appraisal
"The review committee shall judge the candidate with respect to the proposed rank and duties, considering the record of the candidate’s performance in (1) teaching, (2) research and other creative work, (3) professional activity, and (4) University and public service...The review committee must judge whether the candidate is engaging in a program of work that is both sound and productive....cases will arise in which the proper work of faculty members departs markedly from established academic patterns. In such cases, the review committees must take exceptional care to apply the criteria with
sufficient flexibility. However, flexibility does not entail a relaxation of high standards....
(2) Research and Creative Work
Publications in research and other creative accomplishment should be
evaluated, not merely enumerated...Account should be taken of the type and quality of creative activity normally expected in the candidate’s field
. Appraisals of publications or other works in the scholarly and critical literature provide important testimony."
 

I agree with Joe.
I don't know how Dean Edley can write both of these sentences in the same letter:
"Indeed, in Berkeley's classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve."
"We need to know when legal advice and advocacy become criminal. University faculty and administrators are not competent to answer these questions."
It seems some topics are out of bounds.

And "My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses; this includes most though perhaps not all of his Berkeley Law colleagues."
On such a contentious issue, it would have helped to actually poll Mr. Yoo's colleagues and see what they thought about the legal interpretations Mr. Yoo put forth. I suspect Mr. Edley knows and is being coy.
 

Some more thoughts on Mr. Edley's letter:

"One can oppose and even condemn a challenging or even abhorrent idea,
but I do not believe that in a university we can fearfully refuse to
look at it."
Why does Dean Edley impune Mr. Yoo's critics with the wide brush of fear? That is certainly not what I have seen in the objections. I guess it then makes it easy to dismiss all of the criticism becaus Mr. Edley has read everyone's mind and knows their motivations not matter how reasonable and logical what they actually say is.

"I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring."
Ineffable? Really? A little self-serving don't you think? And "law-declaring" rather than legal? Very convenient use of an ambiguous term. I tell you what, Mr. Edley: next time you have one of those complex, ineffable problems, post it here and we will tell you what to do.

"no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients"
Mr. Edley is right. It is much worse: Mr. Yoo abrogated his oath to defend the constitution and made possible, in the minimum, a vast increase in the acts then authorized by his clients. Had Mr. Yoo not acceded to their wishes to twist law into a pretzel to serve his superiors, there most probably would have been more hesitation in their authorization for use. And don't forget, that he agreed to not have many important memos reviewed by his superiors.

"there is a strong argument that these more direct actors get a "pass" because they relied on the DOJ memoranda."
This is a copout: what does Dean Edley think about that argument? Either own up to it or don't include it. And what evidence does he have that the direct actors DID rely on the memoranda rather than the other way around, for which there IS evidence. The torture predates the memos, anyway.

"it does matter to me that Yoo was an adviser, while President Bush and
his national security appointees were the deciders."
They were also the deciders of what John Yoo DID and he AGREED to do it. Mr. Edley himself states that, to this day, Mr. Yoo defends his memos. Please remember that they were retracted by Mr. Gonzalez's successor. And that other released documents show a refinement of the opinions and disagreement by other legal minds in the government.

"Assuming one believes as I do that Professor Yoo offered bad
ideas and even worse advice during his government service, that
judgment alone would not warrant dismissal or even a potentially
chilling inquiry."
Mr. Edley very conveniently names what Mr. Yoo did "ideas" and "advice" rather than "legal opinions against the grain of established law used to justify heinous acts." OK, let's just call them legal opinions. They are work that is open to scrutiny and, so far, have not been officially at Berkley.
 

The Times links to Dean Edley's letter.

http://www.law.berkeley.edu/5961.htm
 

"University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core."

As others have pointed out (see Brad DeLong's blog for additional comments and links), Edley's letter is a crock of BS. Apparently the Law School at Berkeley is not competant to judge whether or not a law professor has stepped over professional boundaries. Given this, I wonder why Deborah Pearlstein was grateful to have studied under Edley.
 

Cactusman wrote:

"I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring."

Ineffable? Really? A little self-serving don't you think? And "law-declaring" rather than legal? Very convenient use of an ambiguous term. I tell you what, Mr. Edley: next time you have one of those complex, ineffable problems, post it here and we will tell you what to do.


I just wanted to comment on that phrase "law-declaring," which is at the heart of one of the difficulties in establishing an ethics violation by John Yoo.

The ethics rules offer some guidance on the so-called "Counselor" and "Advisor" functions and it is to those provisions that many of Yoo's critics turn.

But the role of the OLC lawyer is an odd one. Many times they cannot simply lay out the options and say to the client, "you can choose any of the options you see fit." OLC lawyers sometimes have to definitively declare what the law is in a way that binds everyone in the Executive Branch other than the president. In doing so, the OLC can in effect reject various readings of the law that other people might find reasonable. This "law-declaring" function is unusual one, and the ethics rules don't directly address it. When you read the statements by Jack Goldsmith and the Clinton-era OLC lawyers (who put out a statement), one almost gets the sense that the proper role of OLC lawyers in some situations is almost judicial in quality and calls for some of the ethics and virtues we expect from judges.
 

Suppose Yoo was a civil engineer, and while working for Bush, wrote an engineering analysis that claimed the laws of gravity do not apply where the President says otherwise.

And suppose Dean Edley was of Engineering at Cal.

Would the Dean then tell us that Yoo is an acceptable professor of Engineering at Cal?

Edley can't have it both ways. Either the field he represents is without substance, merely a matter of opinion, or there are such things as incompetent analyses. Perhaps he would care to state which.
 

Many times [the OLC lawyer] cannot simply lay out the options and say to the client, "you can choose any of the options you see fit."

The usual lawyer has an obligation to lay out the law to the client. They don't just say "do as you see fit." They explain the limits of the law. The client then acts, with fair warning and free will.

OLC lawyers sometimes have to definitively declare what the law is in a way that binds everyone in the Executive Branch other than the president.

If the lawyers declare something patently illegal is legal, everyone is not completely "bound" to follow it. I use the qualifier advisably, because yes, they set forth policy that "binds" individuals in various respects.

In doing so, the OLC can in effect reject various readings of the law that other people might find reasonable.

A lawyer that counsels his/her client, a doctor who counsels a patient, a priest who counsels a penitent, all might interpret 'law' that rejects readings others might find reasonable. They all, in various respects, do not have carte blanche.

This "law-declaring" function is unusual one, and the ethics rules don't directly address it.

Mark Field can reference the point, but I doubt this is true.

almost judicial in quality and calls for some of the ethics and virtues we expect from judges

Yes, the OLC can be almost judicial in quality, particularly in the twilight where the law is not clear. The responsibility this warrants underlines the dangers of a Yoo. Waterboarding and the like is not in this area.

What special "ethics and virtues" of judges are we talking about that are significantly different from legal advisers? Particularly, what ones of relevant difference to the matter at hand?
 

Mark Field can reference the point, but I doubt this is true.

I've never seen any suggestion that the standard rules of professional conduct do NOT apply to this function of OLC. I guess it's theoretically possible there's some rule somewhere which immunizes it, but nobody's ever mentioned it. And if they had, I'm sure I would have seen it. AFAIK, the same rules apply to these memos as to any others.

If they ever do release the OPR report, I'm sure we'll see then.
 

I’m not sure the degree to which you and I are actually disagreeing, but I did want to clarify my remarks. I’ve tried to pinpoint the ethics rules that Yoo arguably violated and in doing so am making point that the OLC’s unusual function of declaring law within the Executive Branch makes the rule on advisors (2.1) and odd fit (if we assume that Yoo actually believed his legal advice). I also understood Dean Edley to be aware of the unique "law-declaring" function within the OLC and I presume that's why he used that phrase -- one that you apparently took some issue with.

I’ve never argued, as Mark Field puts it above, that the standard rules of conduct don’t apply to the OLC, or even to the law-declaring function of the OLC. Quite the opposite.

My argument didn't deal with the well-known arguments about whether Yoo violated 1.1 or 1.2(d).

Again, imo, one of the best treatments of the role of OLC lawyers and of the memos' flaws is the analysis in Jack Goldsmith's book. It seems to be consistent with the position statement by the Clinton-era OLC lawyers.
 

I see your point now, John. I didn't before.

I think that the requirement to "exercise independent professional judgment" should apply with even more force in the law-declaring mode. IMO (and this is me ex cathedra), that's the same as "offering advice", but with the additional effect of being determinative within the Executive Branch. That situation therefore seems to demand stricter adherence to the standard than in the usual case.

If we take good faith out of the equation, for the sake of argument, then the basic rule of professional competence should govern Yoo's "exercise of professional judgment". I personally don't believe Yoo met that standard.
 

As MF notes, again, I simply don't see this "difficult[y]" at the end of the day.
 

Arguments Avoided
As stated by others, much of the letter fails to address the strongest arguments for censuring
Yoo. The letter assumes "Professor Yoo continues to believe his legal reasoning was sound" when evidence suggests that Yoo's memos were not honest attempts to resolve an issue, but entirely partisan means to an end. In addition, Edley fails to distinguish between the expression of opinions---in scholarship or on the street---and acts that have real legal (and, in this case, physical) consequences. Edley fails to recognize Yoo's role as a "decider" in writing the memos. His role may be analogous to the driver of a getaway car involved in a robbery; arguably not as responsible as those who attacked the victim, but an active participant.

Problems with Criminal Prosecution as a Standard
After boilerplate on academic freedom and admittedly inappropriate hypotheticals, Edley falls back on the guideline that Yoo must be convicted in a court of law before being removed. As pointed out by others, Edley fails to acknowledge that this example is not exhaustive. More importantly, a criminal conviction requirement is inappropriate where the goals and interests furthered by the criminal justice system diverge from those of a law school. As Edley knows, there are a number of situations were a guilty individual will not be prosecuted or convicted even though evidence clearly demonstrates guilt: conservation of prosecutor resources, plea bargains, evidence sanctions, etc. In addition, because the conduct in this case relates to government actions by a political appointee, doctrines of qualified and absolute immunity, national security issues, and base political calculations may determine whether a prosecution will occur. Edley even concedes prosecution would be balanced against the "political cost of being attacked for conducting a 'witch hunt'."

Trust in the Executive Branch
Strong academic freedom rules are intended to give the politically weak protection to speak their mind. Ironically, the need for a criminal conviction in this case insulates the politically powerful from any sanction for the most heinous criminal acts. "Trust my friend Eric Holder" is simply not good enough.

Conclusion
It may turn out that university faculty and administrators are not competent to definitively determine whether Yoo has committed crimes. However, where evidence is lacking, the law school review process may decline to impose discipline or could place any final determination on hold. Such a result will not "imperil values at our very core," and it is hyperbole to make such a claim.
 

Whatever happens to Yoo at the law school, there will long be a cloud over the school. Every once in a while, the subject of Yoo will resurface, be rehashed, affecting both Yoo and the school. This can be punishing. That's what happens with stigmas. Yoo grabbed the brass ring and got stained. So has the school.
 

Here is the UC policy on integrity in research. Key excerpt:

Misconduct means fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scholarly and scientific community for proposing, conducting, or reporting research. Misconduct does not include honest error or honest differences in interpretations or Judgments of data.

This isn't very clear, but it seems there are two avenues to demonstrate misconduct in qualitative research: establish falsification, or establish a standard for dishonest interpretation. In my understanding, the false attribution of an quotation to an authority would be considered a falsification, the false attribution of a viewpoint to an authority directly countering an actual expressed viewpoint would be considered dishonest interpretation.
 

Update from yesterday's LATimes:

"A classified Justice Department report will recommend that two former department lawyers [Bybee and Yoo] be disbarred for their roles in approving the interrogation techniques . . ."

[Cheney pretends this is political, but as an Obama administration official points out] "career prosecutors in the Bush administration's Justice Department were the first to recommend that some attorneys be disbarred for their roles in the coercive techniques."

Perhaps Dean Edley will explain whether being being disbarred has any relevance to the "values" he likes to talk about.
 

University of California Statement of Ethical Values

5. Compliance with Applicable University Policies, Procedures and Other Forms of Guidance

(...)

In some cases, University employees are also governed by ethical codes or standards of their professions or disciplines—some examples are attorneys, auditors, physicians and counseling staff. It is expected that those employees will comply with applicable professional standards in addition to laws and regulations.
 

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