Balkinization  

Thursday, April 17, 2008

Do Academics Care Too Much About Tenure?

JB

A reader, Lorne Loggia, writes:
It's been disappointing to see the contributors on your blog almost universally prefer protecting the institution of tenure in response to Mr. Yoo's role in the administration's torture policies.

I have noticed that not one contributor has actually felt comfortable enough with their position to respond to any questions about it (with Brian being the notable exception).

It seems like no one is willing to say they'd rather give up their tenure than consider that crimes against humanity is probably beyond the limits of tenure.



Comments:

The problem is not that you care too much about tenure, it's that you care too little about the victims of torture, the rule of law, the U.S. Constitution, and the fundamental human rights of everyone, whether or not they have tenure.

With the exception of Scott Horton, all the posters here want to pretend that this is a controversy about academia. It's not. It's about the people who were killed, maimed, or driven insane thanks to the systematic torture regime that John Yoo enabled. It's time to get over yourselves and start thinking about how we start to unwind the evil that Yoo helped create.
 

I have no stake in the tenure issue (thus I risk the charge of sour grapes, or worse, envy), so perhaps that's why I tried to steer the discussion--in the spirit if not letter of blog posts by Benjamin Davis and Brian Tamanaha--back to "larger" questions at the Ratio Juris blog: http://ratiojuris.blogspot.com/2008/04/office-of-legal-counsel-from-vietnam.html It's an attempt to take to heart the following from Chomsky's 1966 essay, "The Responsibility of Intellectuals:" "If it is the responsibility of the intellectual to insist upon the truth, it is also his duty to see events in their historical perspective."

The intellectual as "scholar-expert" has invested much in the academic world and thus it is not surprising that this might skew his take on things (he wants a return on his investment). This situation is only exacerbated in a day and age when the university is inextricably tied to corporate interests and capitalist imperatives of one kind or another. Sartre, likewise, was right to remind us that "the intellectual, who by virtue of his work as a technician of knowledge (endowed with a certain salary and standard of living) can be classified as a petty-bourgeois promoted by a selective educational process, must ceaselessly combat his own class--which, itself moulded by the culture of the ruling class, necessarily reproduces within him a petty-bourgois ideology and petty bourgeois thoughts and sentiments." Of course this is why Sartre argued that the intellectual must "adopt the point of view of [society's] most underprivileged members," for the "only way the intellectual can really distance himself from the official ideology decreed from above is by placing himself alongside those whose very existence contradicts it." And perhaps this is why Edward Said stated "that even the idea of an intellectual [in the U.S.] who is driven neither by a passion for office nor by the ambition to get the ear of someone in power is difficult to sustain for more than a second or two. Profit and celebrity are powerful stimulants."
 

I prefer to think (or rather hope) that they worry about creating a precedent that would permit easy stifling of future nonconformist voices. Not an idle worry given our not so always illustrious past.

Regardless, Berkeley does not have a primary responsibility here, they wrote those opinions in their capacity as DoJ attorneys. Clearly there must be a mechanism outside Berkeley to handle accusations of ethical violations by DoJ attorneys.

In fact there are two. DoJ internal process and independently DC "state" bar disciplinary route. (I don't know about licensing requirements for law professors, but DoJ attorney clearly must be licensed to practice law, don't they? Also it doesn't matter they they stopped paying their dues, they are still responsible for their past actions as bar members.)

Ideally Berkeley law faculty would issue a brief statement of their own now to at least distance themselves from positions taken by Bybee and Yoo on permissible interrogation methods and their scholarly methods. They owe it to themselves. Everything else can and should wait.

---

(a minor note on one overlooked aspect of Bybee/Yoo memo. Specifically their point "Where the pain is physical it must of an intensity akin to that which accompanies physical injury such as death or organ failure." Here our two torture shysters in their eagerness to deliver manage to produce sheer nonsense that somehow hasn't been discussed much yet.

Messrs. Yoo and Bybee we execute people in this country, presumably in a "humane" way, meaning no pain, thus death does not necessarily means unbearable pain as you claim in your memo. Similarly major organ failures, heart attacks for example, are generally relatively painless, while pulling nails, not a major organ by anybody's definition, or waterboarding is always totally positively unbearable. Please test those things on yourself first Mr.Yoo before you share your opinions with us in the future)
 

Lorne Loggia writes:

"It seems like no one is willing to say they'd rather give up their tenure than consider that crimes against humanity is probably beyond the limits of tenure."

Let's vary this to consider the situations of Yoo and Bybee as they served in the George W. Bush Administration. They did not have tenure. They presumably wished to continue in their positions to perhaps enhance their professional resumes and careers. They were assigned certain legal tasks relative to torture. In performing these tasks they may have given some consideration to the impact upon their resumes and careers if their legal opining might not satisfy the chain of command above them. Isn't this a problem that lawyers in the private sector face on a fairly routine basis? (Consider, for example, tax and securities laws opinions that clients rely upon for certain actions that may be deep in the grey zone, distant from any bright line.) So how differently does the lawyer in private practice act than did Yoo and Bybee? There's a saying of clients about their attorneys that I heard at least 50 years ago: "I don't want my attorney to tell me what I can't do, I want him to tell me what I can do." And on the attorney's side, he might not get paid unless he tells the client what he can (or wants to) do.

So there is this business/ethical dilemma that often confronts an attorney. Generally the practicing attorney, whether in private or government practice, doesn't have the benefit of tenure. How often do attorneys tell their clients "NO" and retain them as clients? (Look at what happened to certain Generals/Admirals for saying somewhat less than "NO" to the Bush Administration on military matters.)

We cannot read the minds of Yoo and Bybee to understand their thinking processes that resulted in the torture memos. But perhaps we can appreciate various possibilities as more and more details are revealed. Bybee got a great reward with a federal judgeship. Yoo had the benefit of returning to a tenured position. Now Yoo is being challenged about his tenure. I do not expect the contributors to this Blog who have academic tenure to fall on swords that would deprive them of significant benefits. But I do expect them to speak out forcefully on these torture issues, challenging Yoo and Bybee's memos. Public opinion may in the end get more results than taking away Yoo's tenure (or impeaching Bybee). And hopefully public opinion may impress upon this Blog's contributors to focus less upon the integrity of academic tenure and more upon the legalities of the torture memos. After all, isn't that the public benefit of academic tenure, the ability to speak out on issues? I would hope that the tenured contributors to this Blog are not apprehensive that some day their tenures may be targeted if they speak out more forcefully on important issues such as torture.
 

I have practiced law for just over 50 years and have faced dilemmas such as suggested in my earlier comment. So I ask myself "If I were Yoo, what might I have done? Might I have resigned? Might I have in effect prepared what would be treated as my resignation?" "If I were Bybee, would I have kissed my judgeship 'bye-bye'?" Consider the risks/rewards of such dilemmas. Most of us are untenured in our occupations/professions but we still speak out. Those with tenure perhaps have a greater obligation to speak out.
 

As a tenure track academic (not a lawyer however) I've been struck in particular by Leiter's seemingly absolutist line on protecting academic freedom. If the kinds of (alleged) legal malpractice and (alleged) war crimes we're talking about in Yoo's case don't justify institutions in seriously considering penalties (up to and including tenure's being revoked, and obviously including their instituting investigations even though these may not be the institutions "best" suited to carry out such investigations -- investigating committees can and should know their limitations and can arrive at reasonable and considered judgments) we're in real danger of turning a principle into a fetish.

William Ockham was right to remind everyone that this issue isn't about the academy per se, "it's about the people who were killed, maimed, or driven insane thanks to the systematic torture regime that John Yoo enabled." The academy has responsibilities to those people (and the wider public) that extend beyond their responsibility to protect intellectual freedom. Protect it yes, but when protecting academic freedom conflicts with other moral principles based on extremely well founded charges of war crimes and professional malpractice, it's time to recognize that this principle might just have to give way. Indeed, the gravity of the crimes in this case and the prima facie strength of the evidence that Yoo was central to committing them leaves me wondering when, if ever, people think it would be justifiable to begin processes designed to review tenure decisions if not in this case.
 

Look, John Yoo's tenure at Boalt Hall should be afforded all the due process protections set forth under the University of California's rules for considering revocation of tenure. Surely the burdens for revoking tenure are high and the University's due process standards should be unique to the needs of academia. No academic committee considering revocation of tenure should have to wait until a professor has been disbarred or convicted of a crime before tenure review is triggered.

State bar associations and criminal procedure have different missions, different due process procedures, and different burdens of proof than law school committees charged with reviewing a professor's tenure. If a law school has independent knowledge that a law professor is likely to have engaged in acts of moral turpitude, it has an affirmative duty to begin an investigation to determine whether such acts will have an undue negative effect on the well-being of the students, the law school, and academia in general.

Dean Christopher Edley, Jr.'s refusal to consider John Yoo's tenure until some other organization passes judgment upon Yoo's performance at the Office of Legal Counsel amounts to an evasion of his duties as an academic dean. Possibly, Edley hopes he will have moved on from his position as Boalt Hall's dean by the time anyone gets around to considering Yoo's continued tenure. In any case, Dean Edley's claim that John Yoo was merely an adviser and not a decider ignores the ethical duties lawyers have as legal advisers.

John Yoo is a member of the Pennsylvania Bar. Rule 2.1 of the Pennsylvania Rules of Professional Conduct provides: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

Some day a member of the Pennsylvania Bar is going to file a grievance against John Yoo claiming, among other deficiencies, Yoo never properly considered the legality or the morality of giving legal advice supporting torture performed by his government client. Possibly, the complaint will allege John Yoo only CORRUPTLY considered the legality and morality of torture.

If a law school tenure committee has John Yoo's infamous "torture" memos in its hands, does it have to wait until the Pennsylvania Bar rules upon Yoo's fitness to practice law? Is there some doubt that facilitating torture is a universally understood matter of moral turpitude?
 

John Yoo is a member of the Pennsylvania Bar. Rule 2.1 of the Pennsylvania Rules of Professional Conduct provides: "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

This rule requires the lawyer to provide professional and candid legal advice and gives the lawyer the option (not the requirement) to lecture the client about moral, economic and social considerations.

I tend to doubt that anyone has ever been disbarred for failing to lecture the client about moral, economic and social considerations.

Once again, we need to start with arguments based upon actual legal authority that Yoo's legal opinions in that memorandum are clearly in error, nevertheless not professional or candid.
 

william ockham said...

It's about the people who were killed, maimed, or driven insane thanks to the systematic torture regime that John Yoo enabled.

What proof do you offer of this?

Where in Yoo's memo does he argue that killing, maiming or driving people insane falls outside the Torture statute? Indeed, even Yoo's standard would bar killing, maiming or driving people insane.

There is no evidence that Yoo knew about the CIA coercive interrogation regime which the President approved.

There is no evidence that the CIA's coercive interrogation regime killed, maimed or drove anyone insane.

There is evidence that CIA contractors and some military members did kill and maim prisoners with techniques which would violate the Yoo defintion of torture and which fell well outside what the President ordered.

Even assuming that the Yoo opinion allowed killing and maiming, what evidence do you have that Yoo facilitated the actual killings and maimings?

There is no evidence that the perpetrators of the unlawful killings and maimings had any idea the eyes only memo existed or that they were told more generally that DOJ approved of killing and maiming prisoners.

I hate to interrupt a juicy theory with facts, but facts are stubborn things.
 

As I don't have a blog, I appreciate the opportunity Jack's post creates for me to comment on certain matters.

(1) Despite Brian Leiter's assertions to the contrary, I haven't called for Yoo to be fired. My comments on the matter can be found here:

http://www.rockymountainnews.com/news/2008/apr/16/campos-a-tortured-defense/

My position is that a definition of tenure that precludes the University of California from undertaking any disciplinary investigation against Yoo under these circumstances is morally and legally untenable.

Yoo, after all, can be fired for engaging in sexist behavior sufficiently egregious that, in the opinion of his employer, he has created a hostile work environment. UC-Berkeley doesn't have to wait for him to be sued successfully, or even sued at all, before it takes action against him for such behavior, up to and including revocation of tenure.

Universities are under no moral or legal obligation to wait for courts to convict people of crimes, or to find them liable for torts, before undertaking disciplinary procedures.

Again, I emphasize that I believe the question of whether Yoo ought to be fired or not is open. But to say that it cannot even be raised properly under these circumstances is indefensible.

(2) The example I gave in the thread below about it being perfectly OK to fire Yoo if he's convicted of purchasing marijuana (a serious felony under federal law under many circumstances) is designend to point out the absurdity of a system in which, as a formal matter, things that shouldn't even be crimes would serve as a formally unimpeachable basis for revoking tenure, while the most extreme immoral and criminal conduct cannot even be investigated except under certain special circumstances that are never going to occur (does anyone here actually need it explained to them why John Yoo is never going to be convicted of a crime in regard to his role in setting up a torture regime?).

Fortunately, despite Leiter's claims to the contrary, that isn't our system. It's simply not the case that UC-Berkeley is legally barred from launching an investigation into Yoo's conduct unless and until he's convicted of a war crime, or (I suppose) disbarred by a bar association.

Whether the university should is a separate question, but it's a question that ought to be faced squarely both by that institution, and by legal academics in general.
 

A handful thoughts, which I wish were more organized:

1) Any discussion of a threat to academic freedom here ought to be at least situated in a larger context that recognizes that Yoo's actions (not his beliefs -- as discussed in #5 below) have severely infringed the freedom of others. There is something odd about making the implicit argument, "If John Yoo's tenure were threatened, academic freedom would be in peril, and that would be the beginning of a chain of horribles that would end up with this country being the kind of place where people are held without trial and tortured in secret prisons, and we wouldn't want that."

2) Brian Leiter's remark that "If Professor Yoo is convicted of a crime, then this would be a different case" ignores the fact that historically war crimes are rarely prosecuted, either because the war criminals and their co-conspirators control the means of prosecution, or because succeeding governments make express or implicit political compromises not to pursue such prosecutions. Under these circumstances, the fact that Yoo has not been prosecuted by the US government is less relevant that the fact that Yoo cannot leave this country for the foreseeable future without risking arrest.

3) The "After you, Alphonse -- No, you first, my dear Gaston" logic by which an institution asserts that it cannot investigate evident wrongdoing because some other institution that also has such authority has not yet undertaken to do so is a recipe for paralysis, and makes no sense.

4) Even recognizing that academic misconduct has a special status, it seems at least disproprortionate to argue that a professor who was involved in a conspiracy to commit torture that led to the death and severe injury of numerous detainees can't be investigated, but a professor who plagiarizes two paragraphs from a student's research paper may be.

5) Academic freedom is the freedom to think and believe and teach and research and publish, not an entitlement to play some sort of Nietzschean superman. It was wrong in the 1950s for universities to discharge suspected communists because political allegiance is and ought to be a protected freedom. Had a professor in the 1950s actually worked to support the violent overthrow of the US government, that really would have been grounds to discharge that professor, communist or not.

6) The American legal community, inside or outside of the legal academy, should take thse matters extremely seriously. I am a member of two state bars and as such have twice stood up in court and publicly sworn to uphold and defend the Constitution of the United States of America. I don't think law schools should be informing their students that such oaths are a bunch of archaic bullshit. I don't mean to suggest that that requires any particular result here, but I do think that everyone should recognize how serious this situation is and proceed accordingly.
 

Berkeley does not have a primary responsibility here, they wrote those opinions in their capacity as DoJ attorneys. Clearly there must be a mechanism outside Berkeley to handle accusations of ethical violations by DoJ attorneys.

Have to differ with the first proposition here. Boalt Hall has the responsibility to ensure that its law faculty are competent -- in terms of professional acumen and ethics -- to teach law to prospective lawyers, judges, politicians, etc. A faculty member's legal work -- whether it was before or during that person's academic appointment is of obvious relevance, indeed, it's often the very basis for some appoitnments. Moreover, in Yoo's case, he was hired around 1999 and was permitted to take some kind of leave of absence to serve in the OLC . Boalt surely thought to derive prestige points from Yoo's appointment to OLC, and thus allowed him to take the job without giving up his tenured slot. Boalt can thus hardly be heard to say that what Yoo did at OLC is none of its business.

I do agree that there there are other mechanisms for addressing Yoo's conduct. I can think of four: The DoJ's Criminal Division, the DoJ's Inspector General, the DoJ's Office of Professional Responsibility, and the Pennsylvania Bar. Unfortunately, the first three institutions are rather hopelessly compromised and/or corrupted. And this is one big hot potato for the Pennsylvania Bar (and, to be sure, for Berekely as well).

But beyond the narrower -- albeit critical -- questions about Boalt's responsibilities to its students and to the profession, there is a broader, public question of whether a prestigious, state-run academic institution is going to take a stand on one of the most pressing moral questions of the age -- one that it should not avoid, given that it is one of the only institutions that is not (we hope) thoroughgoingly compromised here.

I can't agree more with Paul Campos's remark, to wit,

a definition of tenure that precludes the University of California from undertaking any disciplinary investigation against Yoo under these circumstances is morally and legally untenable.

Indeed. And this idea highlights an important point, which is that one does not have to give up reasonable tenure protections in order to go after (i.e., at least put into issue) Yoo's tenure. Let me emphasize: We are not talking about off-the-wall articles or ideas published in academic law journals (we all know that Yoo authored plenty of those, and, to Boalt's shame, achieved tenure despite -- indeed, because of them), we are talking about the generation of legally consequentinal -- highly consequential -- opinions for the Executive Department of the United States Government. This is not pure speech, but "performative speech" of grave practical moment. And, to top it off, the memoranda display such intellectual dishonesty that they fall far below professional standards -- those of practicing attorneys (particularly government attorneys) or of academics.

Consequently, it is simply not the case to say that advocating the review (or even revocation) of Yoo's tenure ipso facto amounts to undermining tenure for all academics who hold out-of-the-mainstream views. Thre are relevant distinctions.

To be sure, there is some danger that a Yoo tenure revocation could be the thin end of a wedge that could pry the tenure system apart, provided that the academy allows such action to be misused as a precedent for punishing the mere advocacy of unpopular beliefs. That will require vigilance. But it's inaccurate if not dishonest to pretend that disciplining Yoo directly threatens the salutary protections of tenure. And it's utter hogwash for Dean Edley to cower under the skirts of academic freedom in order to avoid even opening up an inquiry as to Yoo's conduct. He says there needs to be evidence. It's there, in black and white.
 

I care a great deal about whether or not Yoo twisted the law and the Constitution to justify the administration's choice to torture its prisoners. I believe he did so, I believe he knew what he was doing, and I believe he does not regret having done it.

But my or anyone's ability to press these claims--or the claims that the administration lied about torture, offered illegitimate rationalizations when it was caught instructing its agents to use it, and punished scapegoats to protect senior administration officials, including the president and vice president--depend on a meaningful distinction between what is true in the world and what is not.

As Hannah Arendt wrote, there are three institutions in society, the central mission of which (at least in aspiration) is the pursuit of truth, in one form or another: the courts, journalism, and academia. Insofar as tenure and academic freedom are mechanisms to insulate the university and its truth-telling from political influence, defending them is not a distraction from important issues or the evidence of academic narcissism; it is a vital part of asserting the value of the truth in public life.

That Yoo might be able to hide his evil behind tenure and academic freedom would be very unfortunate, and perhaps there is a case to be made that his conduct is a prima faciae violation of academic principles that justify stripping him of their protection. But the debate over how to balance the values and defenses of an independent academy against the need to sanction evil is not a trivial one. What use is it to punish lying and evil in the name of truth if in doing so you jettison principles which invoked responsibly can promote truth against lying and evil?
 

Let's make another attempt at offering some perspective...

William Ayers was a member of the terrorist organization the Weather Underground, which bombed and murdered people to "protest" the Vietnam War. The University of Illinois at Chicago hired and tenured Ayers as a Distinguished Professor of Education.

With exquisite timing, Ayers told an interviewer right after 9/11 that he did not regret his bombing campaign and wished he could have done more. UI took no action to fire Ayers. Indeed, UI had not comment at all about one of its faculty wistfully wishing he could have bombed and murdered more people.

In response to the news reports linking Obama and Ayers, Professor Lindgren over at the Volokh Conspiracy argued that serving on a board with the terrorist Ayers is no different that his teaching on the same Northwestern School of Law faculty as another Weather Underground member.

In comparison, John Yoo wrote a memorandum of law.

Are those of you condemning the faculty at UC for not condemning and shunning John Yoo for writing his memo willing to condemn the faculty at UI and Northwestern for not condemning and shunning the terrorist Bill Ayers and his fellow Weather Underground member?

Are those of you calling for UC to revoke tenure for and fire Yoo willing to also call for the same action by UI and Northwestern for not condemning and shunning the terrorist Bill Ayers and his fellow Weather Underground member?
 

Note to Paul Campos: I assume you've seen it, but if not, there's a discussion at Volokh about Leiter's criticism of you.
 

You know, spending time trying to reason with persons who simply can not contemplate that a lawyer can do a war crime gets fatiguing. All these arguments that are used to deflect us from the task of indicting Yoo and the others sap energy. Moral equivalence arguments and one's that argue we have to go after all kinds of different people leave out the idea that maybe we should go after these other settings on their own merits, but that does not get Yoo and those who worked with him off the hook.

So, I will look into Ayers, after the prosecution of Yoo. If there is something there, I will be the first to say we should consider it. But, right now I am focusing on the violations of peremptory norms of international law by my government. I recognize it is not as sexy as going after an old 60's radical to some, but I just have this visceral sense that stopping my government from torturing is a task that must be done.

Best,
Ben
 

First, a disclosure: supporting tenure is in my own interest.

I'm concerned that there are still plenty of people who feel Yoo was not a criminal, and the division on whether you think he committed criminal acts and/or malpractice seems to fall along traditional political lines. Those who support the current administration seem to downplay the seriousness of Yoo's actions, while those who do not tend to emphasize his (and Bybee's) role in creating an environment conducive to torture.

I find myself in the latter camp, but I can't help but recognize that there is a sufficiently political tone to this controversy to make an university administrator take pause.

If there were no controversy, it would be a different matter. There has to be some sort of consensus across theoretical and political lines before one revoke a protection against political persecution. If there were no disagreement in the legal field that Yoo's work was not only substandard, but criminal, Yoo would already be headed up the river--albeit in a slow boat.

Why are academics like myself so concerned (perhaps too much) about Yoo's tenure? It isn't, as another commenter posted, that this would be the "beginning of a chain of horribles." To the contrary, it's just another link in such a chain. Over the past 15 years, there has been an increase in concerted campaigns to remove or block political opponents from positions of tenure. These attacks are often carried out by groups who exist outside of the field of the professor in particular, based on narrow (and often incorrect) readings of texts. This kind of criticism is no stranger to academia; a peek in a major peer-reviewed journal will provide many examples of such behavior. However, to use such criticism to destroy the life of another person is another thing altogether. Think of Campus Watch's persecution of professors they feel are too soft on "Islamofacism."

To me, revoking tenure seems justified when it is blatantly obvious and institutionally recognized that the behavior violated certain rules. If smoking marijuana is a felony and Yoo smokes marijuana, then yes, by all means, boot him. We can argue all day about whether or not smoking marijuana should be a felony, but if he's been convicted, he's out. There was a rule (against felony conviction) and he clearly broke it. Similarly, if he sexually abused someone, there's the door.

However, when dealing with a matter that is so densely political as his role in the Bush administration, one has to be wary of one's own bias. Personally, I'd like to see the guy fry, but I'd feel more comfortable in seeing him fry if the entire legal system, and not just those lawyers opposed to his viewpoints, was adamant in its condemnation.

Finally, one note about William Ockham's idea that "the problem is not that you care too much about tenure, it's that you care too little about the victims of torture..." I find this to be an offensive elision of the contents of this blog; not only its primary participants, but most of its readers, too, have been adamantly opposed to torture, and have spilled much more virtual ink on the subject than they have on the subject of tenure. They have spoken forcefully on the issue, and I think it maligns their character to suggest that they do not.
 

benjamin davis said...

You know, spending time trying to reason with persons who simply can not contemplate that a lawyer can do a war crime gets fatiguing. All these arguments that are used to deflect us from the task of indicting Yoo and the others sap energy.

Do not allow me to distract you from putting in the work to gather the evidence to support a criminal indictment of Yoo. I would be pleased to see the product of such work if anyone cares to or more to the point is able to do it.

Moral equivalence arguments and one's that argue we have to go after all kinds of different people leave out the idea that maybe we should go after these other settings on their own merits, but that does not get Yoo and those who worked with him off the hook.

I am not offering a moral equivalence argument. On my personal ethical scale, membership in a terrorist group which has murdered people and wishing that they could have murdered more people far outweighs drafting a legal opinion whose definition of torture differs from yours and mine.

I am leaving discussion of whether Yoo or Ayers should morally enjoy tenure and employment as a professor to those of you who work as academics.

Instead, my point is that it does not seem to have occurred to academic critics of extending tenure to Yoo for writing a memo that the same argument can be applied with far more force to long tenured colleagues who were members of terrorist groups.

That fact begs the question of why the different treatment?
 

Thank you Mark Field. I'd just like to note what I pointed out over there, which is that one of the most striking characteristics of people like Adler and Leiter is that they have a habit of characterizing fundamental political disagreement as a species of analytic or formal legal error.

Thus instead of noting that I have different view -- for political, moral, and pragmatic reasons -- of how tenure ought to function in these circumstances than they do, it is said that I don't "understand" academic freedom, as if academic freedom were the infield fly rule or the atomic weight of helium, as opposed to a fundamentally contestable concept that indeed is being contested at the present moment.

This is a kind of professional deformation that, in my experience, people in the more authority-driven and intellectually pompous academic disciplines (law and philosophy stand out) are particularly prone to develop.
 

However, when dealing with a matter that is so densely political as his role in the Bush administration, one has to be wary of one's own bias. Personally, I'd like to see the guy fry, but I'd feel more comfortable in seeing him fry if the entire legal system, and not just those lawyers opposed to his viewpoints, was adamant in its condemnation.

I don't understand this on several grounds. First, is it ever possible for the entire legal profession to agree on anything? Even if, as I assume, you meant that rhetorically, how many outliers must there be before we're allowed to proceed? And what about outliers who are dishonest in their defense?

Second, it's not clear to me how the legal profession would express its condemnation except by investigating the facts and acting upon the results of that investigation. By demanding unanimity first, you seem to have the cart before the horse.

Third, I think it's important to keep separate two distinct issues. There certainly is widespread agreement in the legal profession that torture is wrong (hell, there are laws and treaties against it), and also widespread agreement that intellectual honesty is a critical requirement in giving legal advice. Those standards are not the issue, any more than in your hypothetical about smoking marijuana would be the issue. No, the issue is did John Yoo violate those standards?. And it's to answer that question that we conduct an investigation.
 

This rule requires the lawyer to provide professional and candid legal advice and gives the lawyer the option (not the requirement) to lecture the client about moral, economic and social considerations.

The problem with Bart's interpretation of this is that ethical rules for lawyers are not interpreted like criminal statutes. Rather, we can be disciplined for acts that fall within the spirit of the regulations as well as the letter.

The Pennsylvania rule is based on the ABA Model Rule, which is deliberately ambiguous as to what constitutes deficient advice, allowing state bars to determine this on a case by case basis.
 

Dilan:

You omitted my second statement where I doubted that any attorney had been disbarred by PA for declining to take the option of lecturing their client on the moral or political impact of a legal decision.

Does anyone have an example of PA doing so?
 

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Incidentally, having read Brian Leiter's comment of today's date regarding this issue, I would point out that U-Cal's regulations on faculty conduct do not purport to provide a complete list of the grounds for which a faculty member can be disciplined. (See p. 4 of that document: "Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action if they also meet the preceding standards.")

It strikes me that committing war crimes, even if those crimes are not prosecuted, would certainly be "serious misconduct" that could be the basis for disciplinary action.

Accordingly, I can't agree with Leiter's conclusion: "There are no allegations of any failure to perform [Yoo's] instructional duties, and [Yoo] has engaged in no research misconduct. He has also been convicted of no crime. End of story."
 

"Bart" DePalma:

Where in Yoo's memo does he argue that killing, maiming or driving people insane falls outside the Torture statute? Indeed, even Yoo's standard would bar killing, maiming or driving people insane.

Half-dead's OK though....

There is no evidence that Yoo knew about the CIA coercive interrogation regime which the President approved.

Why don't we ask him. Under oath....

There is no evidence that the CIA's coercive interrogation regime killed, maimed or drove anyone insane.

There is evidence that CIA contractors and some military members did kill and maim prisoners with techniques which would violate the Yoo defintion of torture and which fell well outside what the President ordered.


So when they die, then it's illegal? Is that it? Do I have the logic down?

Cheers,
 

Bart, I agree with you that nobody disciplines a lawyer simply for not giving "moral" advice.

But, of course, that isn't the issue with Yoo; rather, the bar discipline issue is whether he failed to advise his client on legal doctrines relevant to his client's legal position, that Yoo either knew of or was deliberately indifferent to, in order to further the client's illegal conduct.

And that scenario, while it doesn't become the subject of bar discipline very often, certainly can get you disciplined in any state if it is proven.
 

"With the exception of Scott Horton, all the posters here want to pretend that this is a controversy about academia. . . . .

"# posted by William Ockham"

Not all, Mr. Ockham. In fact, by my reading, far from it. And I take personal offense at being included with those who view academic privilege as trumping Constitution, treaties, international and domestic law, and the health and lives, and -- yes -- human rights, of torture victims who have been permanently scarred, mentally or otherwise, or killed, as consequence of Yoo's lawless and criminal "academic exercise" in the application of torture "law" "theory".

Tenure is not a bar to investigation by the institution at which one holds tenure of one's actions in relation to not solely tenure but also other applicable standards and rules, not least of which is rule of law.

The principle being defended here in the name of tenure is not "academic freedom"; it is that a lawyer/professor's freedom from responsibility for the consequences of his actions, because he has tenure, trumps even deaths by means of barbaric depravity which result from that lawyer/professor's conscious, deliberate, lawlessness.

To put a more direct point on it: since when is conscious, deliberate intellectual dishonesty, as conscious and overt means to subvert Constitution and laws, within the scope of legitimate intellectual freedom (let alone the narrower "academic freedom"), in the real world, when the consequences of it is harm, damage, and death to other real human beings, in stark violation of all applicable standards, not the least of which is rule of law?

Since when, that is, are lawyers exempt from the rule of law simply because they have a paid position at a university? Since when is the lawless killing of others an exercise of "academic freedom" made legitimate because one has "tenure"?

Put it on the line: which trumps which: criminal law that should put one's ass in jail, or academic tenure, especially when one's ass would without question be at least headed toward jail if not for the nicety "tenure"?
 

Oh, so Bart DePalma wants to change the subject to the second half of Rule 2.1 of the Pennsylvania Rules of Professional Conduct? He wants to imply that a state bar's rules of professional conduct are not "actual legal authority?" Let's expand upon the reasons why Rule 2.1 is relevant, while keeping in mind whether we've ever heard of bar disciplinary committees lacking any "legal authority" to rip an attorney's admission certificate to shreds.

The biggest problem Yoo has with Rule 2.1 is that his now-declassified memos do not show him exercising "independent professional judgment" within the meaning of the Rule. John Yoo told the President's men what they wanted to hear, rather than give a true assessment of federal and international law. Moreover, the memos had the force of law until they were withdrawn. The "gloves came off" (because of Yoo's memos) and about 40 detainees who died during interrogation were classified as homicide victims. Several homicide cases were referred to the U.S. Department of Justice for prosecution years ago, but never moved forward for prosecution.

How could someone charged with giving legal advice pursuant to 28 USC 511-512 and 28 CFR 0.25, give advice in derogation to the broadly encompassing anti-torture statutes found at 18 USC 2340 and 18USC 2340A?

The basic standard for what constitutes torture is given in the federal anti-torture statute found at 18 USC 2340(1):

"'torture' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

John Yoo's re-definition of "torture" is that the physical pain during interrogation must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Well, since we know of at least 39 detainees who died during interrogation, torture happened even under John Yoo's definition of torture. And Yoo’s definition is, shall we say, "no longer operative."

Some people take the view, reacting to Yoo's continued public stance affirming his work on the torture memos, that John Yoo is a negligent ignoramus. I don't think so. His educational background and the amount of widely-grasping research evidenced in the memos convince me that Yoo actually knew the true state of torture law. He knowingly cranked out pages and pages of technical legalese because that is what his government client wanted. There simply was no independent judgment as required by the ethical considerations of a licensed attorney.

Do Pennsylvania attorneys have a specific duty to report John Yoo to the Pennsylvania Bar authorities? Yes. The Pennsylvania Rules of Professional Conduct, Rule 8.3(a) states:

"(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."

Clearly, a Pennsylvania attorney is obligated to report John Yoo for ethical violations under a broad standard given by the Pennsylvania Rules of Professional Conduct -- once he or she becomes aware of Yoo's misconduct. (Anybody out there a Pennsylvania licensed attorney? Now you know.)

Sooner of later someone will file a complaint for professional misconduct against John Yoo. Bill O'Reilly, Ann Coulter, Laura Ingraham and the rest of the Fox News commentators can squawk all they want against the process of making President Bush's torture architects accountable. So can Bart DePalma. None of Bush's apologists want any accountability for the Bush torture policies before the courts or any other forum where the standard of conduct is the law. The law will cut through all the ludicrous rhetoric in the media and the blogosphere.

Keep your eyes on the ball: homicides resulting from legal advice are not minor lapses in professional ethics.
 

nick jackson said...

The biggest problem Yoo has with Rule 2.1 is that his now-declassified memos do not show him exercising "independent professional judgment" within the meaning of the Rule. John Yoo told the President's men what they wanted to hear, rather than give a true assessment of federal and international law.

And the evidence for this is what?

Yoo was a scholar of executive power of some repute and had an expansive view of that power before he worked at DOJ. It appears that he was hired because of that background.

This is no more of an ethical problem than Ruth Bader Ginsberg being chosen by Clinton because she was a liberal jurist and then rendering liberal opinions with which Clinton would agree.

Moreover, the memos had the force of law until they were withdrawn. The "gloves came off" (because of Yoo's memos) and about 40 detainees who died during interrogation were classified as homicide victims.

Unfounded slanderous nonsense.

1) There is no evidence that the perpetrators of those homicides were even aware of the eyes only Yoo memo or were instructed by DOJ they could injure and kill prisoners.

2) If they were aware of the Yoo memo, the perps would also be aware that his definition of torture borrowed from Congress' definition of "severe pain" from a health care statute prohibited "serious impairment of bodily functions." Thus, it is impossible to credit Yoo's memo with instructing interrogators to kill prisoners.
 

Nick, good post. No point in arguing with Bart. If the Pennsylvania Bar revokes Yoo's license, then Bart will simply call it a sham. He won't say "guess they made a good case." Or "guess there really is more than one way of looking at it." He'll just find some website where they allege the Pennsylvania Bar is liberal or some such silliness. Bart's view cannot be wrong, by definition. Any authority that doesn't agree with his view is wrong. Any authority that agrees with him is right. He has the worst circular reasoning of anyone I've ever seen. He'll cite examples he can't prove, but dismiss yours if you don't have a videotape of the person wearing a t-shirt that says "I DID IT".
 

Bart lies and lies and lies and lies again, then pretends to know the meaning of ethics -- of rules governing and proscribing human conduct --

"nick jackson said...

The biggest problem Yoo has with Rule 2.1 is that his now-declassified memos do not show him exercising "independent professional judgment" within the meaning of the Rule. John Yoo told the President's men what they wanted to hear, rather than give a true assessment of federal and international law."

Of which statement of fact Bart asks a question he has asked before and which has been answered and refuted every time:

"And the evidence for this is what?"

Bart, PAY ATTENTION: the evidence is:

1. The Yoo memo/es; and,

2. The laws he ignored and lied against in those memo/es.

3. And Bushit's admission that he approved the torture plannings and methods -- which NONE of the "Principles" have denied.

Essentially ALL of that evidence is in writing, Bart, and in the public domain, so it isn't exactly "hearsay" or "conjecture".

"Yoo was a scholar of executive power of some repute and had an expansive view of that power before he worked at DOJ. It appears that he was hired because of that background."

Now we know he wasn't a scholar, but instead an extremist dirt-ball specializing in violating both his oath to uphold the Constitution and laws of the US, and the Constitution and laws of the US.

"This is no more of an ethical problem than Ruth Bader Ginsberg being chosen by Clinton because she was a liberal jurist and then rendering liberal opinions with which Clinton would agree."

Remind us Bart -- or let us in on your evidence:

Did Ruth Bader Ginsberg, or Clinton, write memo/es which lied against the law in order to falsely give the appearance of legality to the war crime of torture?

I thought not.

Law and politics are not the same thing, Bart. Substituting your illegitimate ideological hatred for a legitimate political view for law is intellectually dishonest, unethical -- and downright swamp-sleazy.

"Moreover, the memos had the force of law until they were withdrawn. The "gloves came off" (because of Yoo's memos) and about 40 detainees who died during interrogation were classified as homicide victims."

"Unfounded slanderous nonsense."

Actually, Bart, some 108 -- at last count -- detainees have died in US custody -- held only on unproven allegation, presumption of guilt, and denial of habeas. Some, Bart, were found by US autopsies to have died as direct result of torture.

Is it your contention that those who performed the autopsies were liberals Ginsberg and Clinton?

"1) There is no evidence that the perpetrators of those homicides were even aware of the eyes only Yoo memo or were instructed by DOJ they could injure and kill prisoners."

AGAIN, Bart: Bushit's council Gonzales, Cheney's council Addington, and DOD's Haynes personally dropped into Abu Ghraib to observe the application of their handiwork to actual human beings. It wasn't necessary, Bart, for the on-the-ground torturers to read the memo/es, Bart, because those at the top gave the orders -- as Bushit admitted approving -- that went down the chain to such as Abu Ghraib.

"2) If they were aware of the Yoo memo, the perps would also be aware that his definition of torture borrowed from Congress' definition of "severe pain" from a health care statute prohibited "serious impairment of bodily functions." Thus, it is impossible to credit Yoo's memo with instructing interrogators to kill prisoners."

ACtually, Bart, the "bad apples" -- the "perps" to which you refer -- were hicks with sticks, subhuman even though white, so fundamentally stupid that they didn't know what they were doing was torture -- didn't even know that torture was illegal. So they imagined up torture methods that were be sheer happenstance identical to those in use at the same time in Afghanistan and Guantanamo, where none of those "bad apples" had ever been.

Let me guess, Bart: General "Gitmoize" Miller was at the time a liberal "bad apple".

"# posted by Bart DePalma"

And absolutely lacking the moral quality termed "shame".
 

Bart vomits his anti-Americanism yet again:

"I am not offering a moral equivalence argument."

Your conduct on this blog leaves you unqualified to offer any kind of moral argument. Or ethical. Or -- worse -- legal:

"On my personal ethical scale, membership in a terrorist group which has murdered people and wishing that they could have murdered more people far outweighs drafting a legal opinion whose definition of torture differs from yours and mine."

None of those you have in mind as concerns your projection have been tried or CONVICTED of A-N-Y-T-H-I-N-G, let alone of doing that you assert.

In the US, Bart -- you being unfamiliar with the norms -- we presume innocence, not guilt, whether the potential defendant is an ALLEGED "terrorist" labeled such by a person with extreme bias, or John Yoo. Unlike you, Bart, identically with those actually convicted of being "terrorists" and doing as you assert (not a single instance of the latter coming to mind), the rest of us don't hang people based solely upon name-callings done by a person who admits publicly to having authorized the war crime of torture.

To emphasize, Bart: from your conduct on this blog, you are not qualified to comment on morality, ethics, or law -- except in opposition to all three.
 

Almost 240 years ago the Anglo-Irish politician, Edmund Burke, made a speech about America stating, "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." Burke's statement has been paraphrased to, "Evil triumphs when good men do nothing." That's really where we are today.

Here's some law for that good man or woman licensed to practice law in Pennsylvania.

John Yoo was part of a conspiracy to commit torture. The relevant federal provision form the Torture statutes found at 18 USC 2340 and 2340A is 18 USC 2340A(c). This subsection provides, "A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy."
Under federal law, a "conspiracy" is an agreement of two or more people to commit a crime, or an agreement to accomplish a legal end through illegal actions. Gebardi v. US, 287 US 112, 53 S Ct 35, 77 L. Ed. 206 (1932); Iannelli v. US, 420 US 770, 95 S Ct 1284, 43 L Ed 2d 616 (1975). A co-conspirator can be guilty of a substantive offense even though he did no more than join the conspiracy, provided that the offense was reasonably foreseeable and was committed in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946).

So it really doesn't matter whether everyone who participated in the torture conspiracy ever saw John Yoo's then-secret torture memos. What matters is that the co-conspirators at the top knew they were agreeing to violate established federal law. They used John Yoo under the fallacious concept of finding "loopholes" in the law to conjure up exceptions to the black letter torture law.

A part of the black letter federal law is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It was signed by the United States on April 18, 1988 and ratified by the U.S. Senate on October 21, 1994. Lawyers who got at least a "D" in Constitutional Law when they were in law school know the CAT stands on equal footing with federal statutes once it has been incorporated into U.S. domestic law by Senate ratification. Here's how The CAT's Article 2(2) speaks to lawyers looking for loopholes: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture."

What also matters is the reasonable foreseeability that Yoo's failed attempt at narrowly redefining "torture" would lead to some interrogators negligently going too far and killing their detainees as they tortured them. If a detainee has died during so-called a "enhanced interrogation procedure," if follows that the detainee was tortured. For the math-minded: (enhanced interrogation) + (dead detainee) = torture. There are U.S. government records showing such things happened on multiple occasions. Actually, there doesn't have to be any actual torture to prove torture conspiracy. But if detainees died during torture, the rest of the conspiracy evidence: (1) Principals Committee meetings; (2) torture legal memos; (3) torture implementation memos and orders -- rests on very solid ground.

Aside from John Yoo's memos and the dead detainees is there other evidence to support the existence of the torture? Lots -- a prosecutor's treasure of evidence.

In summary, we have the agreement between two or more people to violate the torture statutes -- conspiracy. We have copies of several memos and orders down the chain command that implemented the torture program -- the first acts in furtherance of the conspiracy. We have torturers who admit engaging in the program, detainees claiming to have been tortured and official FBI documents asserting FBI agents saw detainees in broken and crazed states after apparent torture -- supporting evidence for the prosecutor's case. We have dead bodies and autopsy reports of detainees who were tortured to death -- the separate completed criminal acts as a result of the illegal agreement.

Just one bit was added to the treasure trove a week ago with President Bush's statement to ABC Reporter Martha Raddatz that he was aware and approved of those meetings of the "Principals Committee" at the White House. That admission makes George W. Bush part of the conspiracy, too. Bush's statements to ABC News are not excluded by the general hearsay rule and are admissible in court against him. Under the Federal Rules of Evidence, an inculpatory statement against a declarant's interest is not excludable if it tends to subject the declarant to criminal liability. Fed. Rule Evid. 804(b)(3).

According to Rule 8.4(b) of the Pennsylvania Rules of Professional Conduct, it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

So, good man or woman licensed to practice law in Pennsylvania: what will happen if you do your duty and file an ethics grievance against John Yoo, one of a score or so torture co-conspirators from the top of the Bush administration?

Rule 8.1(b) of the Pennsylvania Rules of Professional Conduct provides that a lawyer in connection with a disciplinary matter, shall not "knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6." Roughly translated this means that John Yoo better respond to a request for investigation. Moreover, he better not claim "state secrets" under the client confidentiality provisions at Rule 1.6. The very torture memos that show his ethical violation as an adviser under Rule 2.1 and his criminality under Rule 8.4(b) have been declassified.

One other thing, since I don't live in Pennsylvania I didn't have a convenient way to Shepardize the U.S. Supreme Court cases for the cases arising in the Third U.S. Circuit. Some buzzing fly will probably try to say these cases are too old, so it might be best to find the recent local federal cases that give the same holdings.

Good luck! And keep a copy of your grievance for the rest of us to read. Oh yeah, send the complaint by FedEx and keep a copy the FedEx tracking record.

At least you will be doing your duty to protect the public from an unsavory member of the Pennsylvania Bar – even if Boalt Hall's Dean Edley refuses to do his duty with respect to John Yoo's tenure as a law professor.
 

Nick Jackson --

"Almost 240 years ago the Anglo-Irish politician, Edmund Burke, made a speech about America stating, "When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle." Burke's statement has been paraphrased to, "Evil triumphs when good men do nothing."

"That's really where we are today."

Some otherwise intelligent people don't seem to grasp that fact.

Apparently some believe they are safe, not at risk; especially if they are on the "correct" side of the ideological fence, the "correct" side as concerns the current gov't. If they are then they are exceptions to history.

And then there are those who put ideology before everything else -- before country, before rule of law; who constantly accuse others of being "liberal" ideologues, extremists, only playing politics, in order to avoid the legal implications of the violations of law of which you -- we -- and others -- speak, and endeavor to address head-on.

The issues aren't complicated. That there is controversy -- that is sufficent to alert the intelligent and informed that there is both ground and need for investigation. Note how those who accuse others of being, as example, a lynch mob, are the one's who jump not oly to that conclusion, but also to that conclusion in order to pretend they didn't leap over, and essentially turn their back to, the clear issues, the clear facts, the clear questions that demand investigation.

Note how, that is, some of those focus exclusively on outcome -- the hypothetical "jeopardy" to "academic freedom" and "tenure -- often doing so by misrepresenting the legal facts, and even the law. All to avoid the issue. Tenure is more important than life itself.

The freedom to have calm academic discussions in the arms of "academic freedom" is more important than life itself.

Other's lives, at an rate.

So what if our country, our gov't, engaged in and engages in torture, and has and will again torture people to death. Not my problem, though it is an interesting topic to discuss, so long as we fritter around the edges of it.

Tenure is more important than life itself.

And the comforts which go with that, and with "academic freedom" aren't to be risked for some nameless Arab who happened to be in the wrong place at the wrong time, during the wrong 7-8 years. Not my problem.
 

Mark Field: First, is it ever possible for the entire legal profession to agree on anything?

...By demanding unanimity first, you seem to have the cart before the horse.

...the issue is did John Yoo violate those standards?. And it's to answer that question that we conduct an investigation.


You're absolutely correct that I was over the line in demanding some sort of impossible consensus. Of course, no such thing exists or ever would exist. I meant it as a shorthand for independent review--if Rick Santorum and Ted Kennedy agree that something is morally and ethically out of bounds, that might mean more than if only Rick Santorum says it is.

It does seem to me that there must be a point of departure for launching any sort of investigation. That is to say, one doesn't conduct investigations randomly or without cause, there must be some minimum requirement met before action takes place.

I want to make it clear that I agree wholeheartedly with you that such an investigation is both necessary and warranted by the nature of the memos.

However, within academia, where politics is profane but pervasive, the potential reaction of one's political foes is always a concern. The concern might be related to funding (e.g. Chemerinsky), content (e.g. Abu El-Haj), or presentation (e.g. Massad).

Sure, we can have a committee at Berkeley investigate the charges, but let's not kid ourselves that they will be trailblazing in any way. The actions of previous investigations of right-wing accusations of bias will constrict their ability to achieve the goal we would prefer (Yoo's dismissal) rather than make their job any easier. The specter of Horowitz (apologies to Derrida) will be present at every turn.

It's far better, then, to take action along different lines. People here have been adamant about how torture outweighs tenure (in a logic chillingly akin to the old saw about why terrorism outweighs habeas corpus). Indeed, I think prosecution should be advanced prior to an attempt to force a university to conduct internal reviews. That is, I think independent substantiation of the claims of detractors is ultimately necessary to establish a modicum of fairness in the process. Otherwise, the right-wing machine will return to academia with a full head of steam and plenty of "precedent" with which to intimidate administrators.

Does that mean that criminal prosecution is a prerequisite for internal investigations at UC? Obviously not, and I doubt that Dean Edley's letter represents the final word on the issue.
 

If Berkeley investigated Yoo and him memorandum, can they compel Yoo to testify? Yoo is the only one with information to whom Berkeley would have access.
 

It does seem to me that there must be a point of departure for launching any sort of investigation. That is to say, one doesn't conduct investigations randomly or without cause, there must be some minimum requirement met before action takes place.

Agreed. The Berkeley standards require that (1) the relevant Division (in this case, the law school) conduct an investigation; and (2) the Chancellor, upon receiving the report of the investigation, make a determination that probable cause exists to believe that there was a violation and that the violation can be proved. The faculty member is then entitled to a full hearing.

I think prosecution should be advanced prior to an attempt to force a university to conduct internal reviews.

I'd have no problem if there were any liklihood of that happening. IMO, there isn't. One of the worst aspects of war crimes like torture is that they're often committed by governments as part of official or unofficial policy. The government, which after all controls the prosecution, simply won't enforce the rules. That's why torture, like genocide, is a ius cogens crime (meaning any court, anywhere in the world, has jurisdiction over it).

However, within academia, where politics is profane but pervasive, the potential reaction of one's political foes is always a concern.

Agreed. That danger always exists because right wing extremists have long followed a policy of bullying and intimidation directed against academics.

But here's the thing: they've acted despicably without any excuse. They don't need to say "Berkeley did it to John Yoo". They have done it and will continue to do it anyway. Protecting John Yoo will not save any future professor; it will cost Berkeley its soul.
 

"It's far better, then, to take action along different lines."

It's far better to confront the facts and issues head on, than instead attempt to sidetrack into blind-allies -- and, of course, delay, delay, delay.

"People here have been adamant about how torture outweighs tenure (in a logic chillingly akin to the old saw about why terrorism outweighs habeas corpus)."

There's that same disgusting ethically and morally bankrupt "My comfort matters more than life itself -- so long as it's other's lives" -- rationalization.

When was it established that tenure is the equal of habeas corpus? When it's "my" tenure and someone else's CORPSE.

"Indeed, I think prosecution should be advanced prior to an attempt to force a university to conduct internal reviews."

Yes -- we should instead pursue prosecution, as that is not likely to happen, rather than pressure the smaller subset of the community that is Boalt/Berkeley into fulfilling ITS INTERNAL obligations, by its own EXISTING INTERNAL rules and procedures, to address war crimes committed by a member of THAT community.

"That is, I think independent substantiation of the claims of detractors is ultimately necessary to establish a modicum of fairness in the process."

Are law school administrators, faculties, and TENURE REVIEW BOARDS not able to be independent in examining the existing substantiation -- the applicable laws, and the Yoo Torture Memoes?

If not them, then WHO? If not now, then WHEN?

How many more must die -- put that aside, they don't matter, being guilty of being Arab and non-white -- how much more destruction must be done to the Constitution and laws -- to YOUR COUNTRY -- before you get off your ass and off the irrelevant dime of "tenure"?

The honest recognize and focus on the necessity: INVESTIGATION, not on irrelevancies, efforts to distract and sidetrack and derail, and not on speculated conclusions while accusing others of doing exactly that.

There is, of course, the "slippery slope" "argument": If Boalt investigates the allegations against Yoo, that may lead to his tenure being revoked. That would be worse than his being tortured to death.

"Otherwise, the right-wing machine will return to academia with a full head of steam and plenty of "precedent" with which to intimidate administrators."

Politics, and the danger that there might be politics acted out in a context already pervaded by politics -- another euphemism for the non-issue "tenure" -- is of greater concern than the Constitution, laws, and the survival of our country as "a system of laws, and not of [war criminals]." (We already put aside as irrelevant the deaths of those presumed guilty because Arab and non-white.)

"Does that mean that criminal prosecution is a prerequisite for internal investigations at UC? Obviously not, and I doubt that Dean Edley's letter represents the final word on the issue."

That's why we should push instead for criminal prosecution, even while simultaneously asserting that that won't happen, instead of responding directly to Edley's inertial misrepresentations of the University's rules, procedures, and existing investigative bodies, such as tenure review board or committee/s. Otherwise there is the enormous risk that something will actually be done about the war crimes, and the continuing damage to our country, which is expressly to be "A system of laws, and not of [John Yoo, et al.]".
 

The ever-solicitous Bart asks:

"If Berkeley investigated Yoo and him memorandum, can they compel Yoo to testify? Yoo is the only one with information to whom Berkeley would have access.

"# posted by Bart DePalma"

Irrelevant for at least two reasons:

1. The evidence -- the applicable laws, and Yoo's Torture Memoes, are sufficient to make at minimum a prima facie case against him for conscious and deliberate intellectual dishonesty.

2. Who cares either way, the evidence being as it is: as one willing to be overtly -- one could even say proudly -- intellectually dishonest, Yoo is a liar to being with.
 

you get off your ass and off the irrelevant dime of "tenure"?

I'm sorry, I must have misread the original post's title. Color me embarrassed.

As for getting off one's ass, I wonder what you've done yourself to advance the cause besides boldfacing and capitalizing words in a very hurtful and wrong-headed post. You make a lot of assumptions about me and my character that are wildly off-base and unwelcome.
 

you get off your ass and off the irrelevant dime of "tenure"?

"I'm sorry, I must have misread the original post's title. Color me embarrassed."

Right: we aren't to criticize -- to use your word -- wrongheadedness in the title and tenor and topic of an article, even if it is that, and responsibility requires doing so.

There are no legitimate excuses for torture, or for defending it, or for avoiding the issue of confronting and dealing with it head on. That inlcudes the hypothesized outcome being confabulated threats to "tenure" and "academic freedom".

Neither tenure not "academic freedom" are stipulated in the laws which prohibiting torture as being exceptions to the prohibition.

"As for getting off one's ass, I wonder what you've done yourself to advance the cause besides boldfacing and capitalizing words . . . ."

Yes. You wonder. And speculate. But don't dare challenge because the least of what I have been doing -- unlike those avoidng the issue, endeavoring to generate side issues, alternative issues -- is as plain as day and need not be wondered or speculated about:

I have stuck to the issue issue.

Torture is a war crime. It cannot be made legal. It is further illegal to attempt to make it legal.

Yoo did the first by ignoring the latter two. There is sufficient evidence to conclude at least that.

None of that is protected by "academic freedom" or is legitimate excuse to defend "tenure" as if the entire concept of "tenure" will be wiped out for everyone world-around if the substantial substantive allegations against Yoo are -- dare I say it? -- investigated.

"in a very hurtful and wrong-headed post."

Poor victim. I'll bet those who had "tenure" at the various Iraqi prisons, such as Abu Ghraib and Bagram, and in Afghanistan, and in Guantanamo, and in the unknown number of Bushian "black sites" around the world, experienced their tortures as merely "hurtful". Except, of course, for those tortured to death, as they are no longer able to feel anything.

"You make a lot of assumptions about me and my character that are wildly off-base and unwelcome.

"# posted by PMS_Chicago"

I base my "assumptions" about you based directly on your own words.

Exactly as you "wonder" away from dealing with -- from even mentioning -- what my words reveal as to the minimum of what I am doing on the issue.

You: knowing there won't be any prosecution of Yoo, we should pursue prosecution of Yoo.

Me: Boalt has rules and procedures, and administrative and faculty bodies, already in place to deal with the substantial substantive evidence of Yoo's having committed war crimes.

Thus Boalt lacks only the incentive -- the getting off their ass -- to act on that evidence, and investigate, only one possible outcome -- we aren't there yet -- being revocation of tenure. But those opposed to that process have jumped directly to defenses against that hypothetical outcome, while at the same time -- and disingenuously -- accusing others of jumping to conclusions, simply because those others insist on the minimal and preliminary: investigation

It isn't, in short, always someone else's responsibility, or the responsibility of a process we simultaneously say ain't gonna happen, to "go first," except when those with the authority to act either approve of the conduct they are desparate to ignore, or they are simply moral cowards.

Hurtful!? Ask the found-guilty-of-nothing detainees who have been tortured for a relevant reality-based meaning of "hurtful".

On second thought, don't ask them: they, lacking tenure, therefore lack sufficient dignity to deserve the query.
 

There are no legitimate excuses for torture, or for defending it, or for avoiding the issue of confronting and dealing with it head on. That inlcudes the hypothesized outcome being confabulated threats to "tenure" and "academic freedom".

The ironic thing here is that you have blustered about on several threads now about how much the tenure aspect of this question is a distraction from the real problem, namely Yoo's implication in torture.

Yet, you'll be hard-pressed to find a point where I (or any other person who has spoken about the tenure issue, save perhaps Mr. DePalma) have defended Yoo's actions themselves.

Yoo's actions are absolutely indefensible. If you examine what I have said, rather than what you think I have said, you'll see that I've supported investigation and prosecution from the very start.

In fact, my entire point has been that one shouldn't approach punishing Yoo through tenure revocation for two reasons: 1) It's insufficient for the severity of his actions; and 2) the political nature of the complaint may lead to fallout.

Mark Field's sober response to the latter question is certainly appreciated. I admit that if I hadn't had colleagues hunted by the right-wing, then sure, I might be a little more gung ho about revoking tenure. Certainly, the r-w will continue to intimidate; I just fear the possibility of a tit-for-tat atmosphere where tenure review is outsourced to activists.

You claim that the tenure question is a distraction and on that point, I agree wholeheartedly. If Yoo is, indeed, a war criminal and obviously one by well-documented evidence, as you have repeatedly suggested, then let's by all means have him prosecuted and imprisoned for it.

If you turn and say "oh yes, that's just what you'd like us to do, because you know it'll never happen," may I kindly suggest you find therapy for your paranoia and get back on the bus? Put the bastard in prison already!

Why would you let someone who is responsible for the torture and murder of people in custody get away with a professional spanking? Put the bastard in prison already!

Quit hemming and hawing about how you'd get something done if it weren't for everybody distracting you with this tenure question. Put the bastard in prison already!

Can't happen? MAKE IT HAPPEN.

You: knowing there won't be any prosecution of Yoo, we should pursue prosecution of Yoo.

No.

Me: Knowing Yoo should be prosecuted, we should find a way to prosecute him.
 

nick jackson said...

nick: Moreover, the memos had the force of law until they were withdrawn. The "gloves came off" (because of Yoo's memos) and about 40 detainees who died during interrogation were classified as homicide victims.

BD: Unfounded slanderous nonsense.

1) There is no evidence that the perpetrators of those homicides were even aware of the eyes only Yoo memo or were instructed by DOJ they could injure and kill prisoners.

2) If they were aware of the Yoo memo, the perps would also be aware that his definition of torture borrowed from Congress' definition of "severe pain" from a health care statute prohibited "serious impairment of bodily functions." Thus, it is impossible to credit Yoo's memo with instructing interrogators to kill prisoners.

nick: So it really doesn't matter whether everyone who participated in the torture conspiracy ever saw John Yoo's then-secret torture memos.


You are changing the allegation from Yoo's memos caused homicides to Yoo was conspiring to cause homicides.

Even under the conspiracy theory, Yoo's memo is actually evidence for the defense. As I noted above, Yoo defined the severe pain which constitutes unlawful torture to include "serious impairment of bodily functions." Thus, the homicides would constitute torture under Yoo's definition. Yoo's memo barring those homicides is not evidence of a conspiracy to commit those homicides.

What matters is that the co-conspirators at the top knew they were agreeing to violate established federal law.

Putting aside the unauthorized and unlawful homicides to get back to the subject at hand - the authorized CIA coercive interrogation program, you have to prove that Yoo intended CIA to commit torture to prove your conspiracy charge.

What also matters is the reasonable foreseeability that Yoo's failed attempt at narrowly redefining "torture" would lead to some interrogators negligently going too far and killing their detainees as they tortured them.

Conspiracy is not based on a civil negligence standard. Rather, you have to prove beyond a reasonable doubt that Yoo intended CIA to commit unlawful torture.

[I]f detainees died during torture, the rest of the conspiracy evidence: (1) Principals Committee meetings; (2) torture legal memos; (3) torture implementation memos and orders -- rests on very solid ground.

Aside from John Yoo's memos and the dead detainees is there other evidence to support the existence of the torture? Lots -- a prosecutor's treasure of evidence.


Have you ever actually prosecuted a criminal case?

To support your allegation of compiracy, you have to prove that Yoo entered into an agreement with those principles that CIA commit unlawful torture. There is no evidence of any such agreement involving Yoo or that Yoo even knew about the CIA coercive interrogation program, nevertheless the unlawful homicides which fall outside that program. Yoo was not a principle.

You also have to prove that Yoo intended CIA to commit unlawful torture. Yoo's memo expressly states that he is not taking a position on what actions the President should take.

Finally, you have to prove that the CIA program is "necessarily" unlawful torture. Given that it is medically impossible to objectively define "severe pain" and, in the alternative, that Congress had offered a definition of severe pain which Yoo used in the memo and which did not encompass the CIA program, it will be very difficult to prove that the CIA program is "necessarily" unlawful torture.
 

Bart DePlama, you have some much time on your hands you should consider volunteering for John Yoo's criminal defense team. Your efforts could bring him so much justice....
 

PMS_Chicago --

There are no legitimate excuses for torture, or for defending it, or for avoiding the issue of confronting and dealing with it head on. That inlcudes the hypothesized outcome being confabulated threats to "tenure" and "academic freedom".

"The ironic thing here is that you have blustered about on several threads now about how much the tenure aspect of this question is a distraction from the real problem, namely Yoo's implication in torture.

"Yet, you'll be hard-pressed to find a point where I (or any other person who has spoken about the tenure issue, save perhaps Mr. DePalma) have defended Yoo's actions themselves."

Avoding the issue is as much assent as is silence, and the result is a defense. So long as we avoud the issue it is off the table, out of view -- and then there's nothing to investigate.

We have several threads -- following those about Yoo and his torture memoes -- about tenure, tenure, and then, for a change, about tenure, those interspiced with hysterical concerns with everyone's "academic freedom," as if investigation by Boalt of John Yoo, in keeping with its own established rules and procedures, would, were he found wanting in relation to Boalt's minimum standards, and his tenure revoked, then that would eliminate everyone's tenure.

"Yoo's actions are absolutely indefensible. If you examine what I have said, rather than what you think I have said, you'll see that I've supported investigation and prosecution from the very start."

But not by the community in which he currently operates in accordance with that community's established, already-existing rules and procedures. Instead, with the view nearly unanimous that there will by no prosecution of anyone, unless they are a sargeant or less in the military, you instead urge prosecution.

"In fact, my entire point has been that one shouldn't approach punishing Yoo through tenure revocation for two reasons: 1) It's insufficient for the severity of his actions; and 2) the political nature of the complaint may lead to fallout."

That is, again, predicting an outcome of an investigation which has not occurred, which outcome cannot be predicted. And that is your excuse for opposing that investigation. As I said: jump over the facts, and the evidence, sufficient for investigation, to the hypothetical conclusion -- revocation of tenure -- and from that groundless stance defend that hypothetical against any investigation at all.

Certainly revocation of tenure -- which couldn't happen without that investigation, and that investigation might come to a different conclusion than the self-serving paranoids' hypothetical -- is hardly commensurate with the severity of the crime. But it is a beginning, especially in the absence of prosecution.

As for the red herring of the "political fallout": right wing extremists have always endeavored to bully and intimidate academics, even when they had to lie an excuse into being, which is most of the time. That is happening now, and it will continue to happen regardless whether Yoo is investigated by Boalt, and regardless of the outcome of such an invstigation.

Should I join the self-imposed paralysis and helplessness -- for some a quite deliberate strategy -- simply because that which has always happened, and always will happen, will continue to happen, regardless whether there is legitimate excuse for it, and regardless whether Yoo is investigated by Boalt?

So far that investigation isn't happening. And the near-unanimous view is that Yoo won't be prosecuted. So he wins by default as result of self-imposed political terrorism.

"Mark Field's sober response to the latter question is certainly appreciated. I admit that if I hadn't had colleagues hunted by the right-wing, then sure, I might be a little more gung ho about revoking tenure. Certainly, the r-w will continue to intimidate; I just fear the possibility of a tit-for-tat atmosphere where tenure review is outsourced to activists."

I just turned 60. I've been outspoken, beginning with civil rights, and active on human rights issues since I first learned of Lincoln, and his principle "Everybody equal before the law" at 8-9 years old in elementary school. Have I suffered abuse at the hands of bigts? Certainly. Has some of that consisted in political blackballing? Absolutely -- and sometimes from the most unexpected of political directions.

Do I let that shut me up? Never.

"You claim that the tenure question is a distraction and on that point, I agree wholeheartedly. If Yoo is, indeed, a war criminal and obviously one by well-documented evidence, as you have repeatedly suggested, then let's by all means have him prosecuted and imprisoned for it."

Let's by all means "prosecute" him --- and let's do so in every forum in which that should be done, including Boalt.

"If you turn and say "oh yes, that's just what you'd like us to do, because you know it'll never happen," may I kindly suggest you find therapy for your paranoia and get back on the bus?"

I suggest you find the ethical canons which apply to online "diagnoses" of others as cloak for personal attacks.

"Put the bastard in prison already!"

Not unless and until found guilty in accordance with that he disparages: democratic due process of law.

In every forum in which that can be done.

"Why would you let someone who is responsible for the torture and murder of people in custody get away with a professional spanking?"

I'm for the existing rules and laws being enforced, in all instances, even if that means Yoo is "spanked" more than once.

"Put the bastard in prison already!"

Not unless found guilty by a due process he has disparaged -- rejected -- and denied to others.

"Quit hemming and hawing about how you'd get something done if it weren't for everybody distracting you with this tenure question."

It isn't personal, except for those endeavoring to distract out of fear that the tenure will be revoked as consequence of someone other than them being investigated. And their efforts are to distract everyone, not only me.

In short: stop personalizing.

"Put the bastard in prison already!"

Only if found guilty as consequences of legitimate trial.

You: knowing there won't be any prosecution of Yoo, we should pursue prosecution of Yoo.

No.

Me: Knowing Yoo should be prosecuted, we should find a way to prosecute him.

There isn't only one way to prosecute him, or only one forum in which to do that. He can legitimately be investigated not only by gov't agenices, and professional associations, but also the community at Boalt in which he operates.
 

I'd really like to ask people to try and make a concerted effort to not engage Bart.

While the blog permits him to post and that's his right, it's become clear there's no point in having any dialogue with Bart.

His point of view, FWIW, is rigid and his method of debate is simple obfuscation and sophistry, with no interest in any forward motion or constructive conversation.

So, I ask that you attempt to not further his disruption of conversation here hashing over the same issues again and again. At least let's try it. We might all find a better dynamic for conversation.
 

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