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April 14

Torture and Tenure

A civil liberties group that is working to curb what it sees as abuses by the Bush administration has mounted an e-mail campaign to push for the firing of John Yoo, a tenured professor of law at the University of California at Berkeley.

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While Yoo’s views on torture have been widely condemned in the academic legal world, many are objecting to the campaign as an infringement on academic freedom — ironically coming from a group formed to protect civil liberties. His controversial writing — justifying forms of interrogation many view as torture and in violation of the Constitution and international conventions — came while he worked in the Bush administration’s Justice Department. While Yoo did not respond to an e-mail request to comment on the campaign against his continued employment at Berkeley, he has written elsewhere defending his views.

The e-mail campaign calling for Yoo’s dismissal is from a group called the American Freedom Campaign. It says of Yoo:

“In 2003, the U.S. Department of Justice’s Office of Legal Counsel issued a memo advising the Pentagon that laws and treaties forbidding torture and other forms of abuse did not apply to U.S. interrogators because of the president’s wartime power. The man who wrote that memo — John Yoo — is now happily ensconced as a tenured law professor at the UC Berkeley School of Law. While an unknown number of people suffer the aftereffects of illegal torture he encouraged, Professor Yoo is teaching, writing, and generally enjoying life in California. This is flat out wrong. John Yoo should not only be disqualified from ever serving in government again, but he should also be prohibited from spreading his distorted view of the law and the role of lawyers to young law students. He must be fired. And the man to do it is Christopher Edley Jr., dean of the UC Berkeley School of Law.”

The American Freedom Campaign is hardly alone in raising questions about Yoo’s suitability to teach. An editorial last week in The New York Times, while not calling for his dismissal, said in passing, “Mr. Yoo, who, inexplicably, teaches law at the University of California at Berkeley....”

The explanation, of course, is tenure.

In a statement about the demands that he fire Yoo, Edley strongly argued that doing so would violate a tenured professor’s rights to academic freedom and due process. Edley noted that University of California regulations about seeking the dismissal of tenured professors are very restrictive. For instance, a tenured professor can be dismissed for “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,” a standard Edley said that clearly has not been met.

Edley noted his belief that the “vast majority of legal academics” disagree with Yoo’s analyses, but he also noted that Yoo had tenure prior to leaving for Washington and that he has been a “very successful teacher and prolific (though often controversial) scholar.” And Edley added that if a consensus disagreeing with a professors views “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. 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 an 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, nor a promising way to seek deeper understanding in a world of continual, strange revolutions,” Edley added.

In the academic legal blogosphere, the move to fire Yoo is receiving substantial criticism — even from people who disagree with his views on torture. Brian Leiter, a professor of law and philosophy at the University of Texas at Austin, wrote that he had himself removed from the American Freedom Campaign’s e-mail list as a result of its “disgraceful attack on the academy.”

Added Leiter: “Tenure, and academic freedom, would mean nothing if every professor with views deemed morally reprehensible or every professor who produced a shoddy piece of work — while inside or outside the academy — could be fired.”

Others, however, are questioning Edley’s defense, saying that he is too quick to minimize the obligation of a legal scholar to values beyond those being pushed by a given client or government official.

Writing on the blog Balkinization, Scott Horton, who teaches at Columbia law school, says that he understands Edley’s desire to protect a professor whose dismissal is being demanded, and to stand for free speech. But Horton sees more at play and questions the way Edley defended Yoo.

Of Edley, Horton writes: “He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them.... They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis? Does he believe that they are free to follow their careers like legal pipefitters, dispensing the advice that their clients want to hear — and if it goes astray, well then, the problem is all the client’s?

“Does he want a generation of Berkeley grads to think that writing up CYA memos for political friends is an honorable and proper thing — or at least something you can get away with, suffering no negative repercussions? This is exactly what some of the more unfortunate and ill-considered language in his memo suggests.... Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. His decisions are not wrong. But the words he chose to express them do little credit to the students and faculty at Boalt Hall.”

The Balkinization blog contains several other posts, with commentary, about the dispute.

Timothy Burke, an associate professor of history at Swarthmore College, set off a debate among readers of his blog, Easily Distracted, by comparing Yoo to Ward Churchill. Writes Burke: “So riddle me this: why isn’t John Yoo just as big a hack when it comes to constitutional law as Ward Churchill was when it came to Native American history? This isn’t about simple disagreement with the substance of his arguments in the ‘torture memos.’ It’s about Yoo making claims (claims with consequences far greater than what normally follows from scholarship, even legal scholarship) that are just factually wrong or are screamingly disingenuous. Whatever the standards might be for employment at the Justice Department (a different issue), shouldn’t this kind of approach to knowledge and scholarship disqualify someone for an academic post?”

— Scott Jaschik

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Comments

Two-faced?

OK. It was NOT O.K. to call for Ward Churchill’s firing. But it IS O.K. to call for Mr. Yoo’s firing?

This was a story-arc from the new “Battlestar Galactica” show. Kafka and Orwell are having a great laugh, somewhere.

Anyone wonder why so many people find politics — and classroom politicians — so phony?

L.L., at 7:25 am EDT on April 14, 2008

John Yoo

John Yoo’s reprehensible opinions are not grounds for firing him from a tenured professorship. Tenure was not invented to protect academics’ innocuous views. It would however be good to have Dean Edley himself state that he believes Yoo’s position to be wrong, in addition to reporting that other legal scholars disagree with him.

Rudolph H. Weingartner, at 7:30 am EDT on April 14, 2008

So it looks like it will be within the California rules regarding tenure to fire Yoo as soon as he is convicted of a crime that makes him clearly unfit to teach. Complicity in torture and war crimes should do the trick, so we can hope for an early resolution of the case as soon as the weight of the law is applied to Mr. Yoo

Stan Nadel, at 7:40 am EDT on April 14, 2008

Professor Yoo

What kind of a message will the firing of Professor Yoo send to young PhDs and non-tenured faculty? If a dean can fire a tenured faculty member simply because his or her vies are “reprehensible”, I can only imagine what will happen to a non-tenured faculty member whose views are considered “reprehensible”. Perhaps a university security person will have the honor of telling him or her to leave campus and don’t come back again.

Dawit, at 7:55 am EDT on April 14, 2008

This is Torture

Let me get this straight now, in an atmosphere of Assessment, Diversity, and Critical Thinking we are opposed to a Professor who espouses an unpopular point of view?

This is not “Water Boarding 101″, it is an expression of a legal concept which needs to be discussed openly if we are to understand the law, the legal process, and become an educated Nation.

Silencing the opposition leads to one way of thinking and, therefore the loss of thought, intellectual growth, and freedom. Remember Freedom of Speech?

CJ Prof, at 8:10 am EDT on April 14, 2008

Got cites?

” .. Complicity in torture and war crimes should do the trick ..

I must have missed the statements about this from Mr. Reid and Ms. Pelosi.

Please provide those citations. Thank you.

Russ Poeter, at 8:10 am EDT on April 14, 2008

Absurdity

It is sad that this issue is even being discussed here, as if there is any doubt about the correct position. The freedom of tenured academics to express unpopular views is the very heart of what higher education in the U.S. is all about. It must be protected from hysterical attacks from the lunatic right (like David Horowitz) as well as the lunatic left (as these American Freedom Campaign people obviously are). I doubt there is a law school dean in the country who does not support Dean Edley’s position, even though I suspect there are few if any who agree with the views expressed by Professor Yoo.

Gary Roberts, Dean at IU School of Law Indianapolis, at 8:25 am EDT on April 14, 2008

Double Standard

Typically, the left want complete freedom of speech to espouse their sacred views to the unknowing or disbelievers but let someone express their freedom of speech different from the left’s mantra and they go nuclear. Get a job, get a real cause or get lost!

Another CJ Prof, at 8:50 am EDT on April 14, 2008

John Yoo

On a tangent, I was wondering how John Yoo earned tenure at the law school so quickly. I see from his web page at Berkeley that he joined the Boalt faculty back in 1993, but he doesn’t seem to have spent much time there in the intervening years. It’s interesting that the description of his work at the Department of Justice avoids any inkling of controversy: “he worked on issues involving foreign affairs, national security, and the separation of powers.”

John Shea, at 10:55 am EDT on April 14, 2008

For the Record

Not all the “lunatic” Left has a free speech double standard. I’ve heard Noam Chomsky exhort all of us to defend the right of people to say things we despise, otherwise we can’t claim to be in favor of free speech.

By the way, I’ll grant that there are “lunatics” on the left and “lunatics” on the right. We never hear the phrase “lunatic middle,” which, also, is possible.

Jed Leland, at 10:55 am EDT on April 14, 2008

I am from the left. Still I find this reprehensible. The way to deal with unacceptable ideas is to encourage that they be shared. Tenure and academic freedom must protect freedom of thought whether I like the thought or not.

Wayne Evens, at 10:55 am EDT on April 14, 2008

Et Tu, CJ?

Will you be quitting too, CJ Prof? You want to have your cake and eat it too, just like the people you are criticizing. You seem to be as selective a reader as good ol’ L.L., and both of you fail to note that the proposed action against Yoo has been attacked by those same “liberal” academics that you seem to despise.

For the record, I don’t agree with Yoo. But that doesn’t mean he should be denied tenure or his First Amendment rights. While the radical wings of BOTH sides would deny those who oppose them the freedom of opinion and speech, the majority of us who reside between the two extremes are getting pretty tired of this, regardless which side it comes from.

Scott, at 10:55 am EDT on April 14, 2008

As a student at UC Berkeley School of Law (indeed, as a current student in JY’s con law class) I am as troubled by this issue as anyone.

Without wading too deeply into the fray, I will share that I would become very disappointed and disillusioned with my academic institution if the dean of my law school decided to unilaterally fire Yoo, absent a criminal conviction or inditement. Something is seriously awry with a picture in which universities prosecute people prior to the courts. This is an opportunity to demonstrate our commitment to the rule of law, and our resolution against the very actions of the Bush Administration that disgust us, and I am glad my dean has seized upon it.

Nothing about the Yoo situation constitutes an emergency, or demands anything other than a carefully considered response. If dismissal is appropriate now, it will still be appropriate a year from now, when the dust settles a bit. I am confident that by resisting the temptation to rush this decision, cooler heads and the factual record will prevail. And taking that approach will do more service to UC Berkeley students’ education that a decision motivated a gut political reaction.

PB, UC Berkeley School of Law, at 11:00 am EDT on April 14, 2008

Tenure is meant to protect controversial scholars

Prof. Yoo has spoken at my school, as part of a program we have on law and media. He spoke and was then challenged on his views by the moderator of the program and many members of the audience, both students and faculty. This is what an academic institution is about.

From what I have read about Prof. Yoo, he is a legal academic who earned tenure based on his scholarship and teaching prior to his government service, and returned to his tenured position after his government service. Academic tenure is about restricting the basis on which a faculty member can be dismissed, basically to grounds of illegal conduct or gross failure to perform his job. This is to ensure that scholars are free to follow their academic inquiries in whatever direction they may lead. To dismiss Yoo from a tenured position because of the substance of memos and legal advice he gave while employed by the government would significantly undermine the concepts of academic free and tenure.

If Yoo were to be charged and convicted of some criminal offense based on his conduct in public office, that would be a different matter. I would think that prosecution and conviction by an international human rights tribunal with jurisdiction over the subject matter and Prof. Yoo could also serve as grounds for dismissal from a tenured position. But the law school should not take such action unilaterally.

And I speak from the left, not the right, in terms of my own politics. I just signed on to an ACLU email campaign calling on Congress to demand the appointment of a special prosecutor to investigate potential criminal conduct at the White House, the Defense Department, the Justice Department and the State Department with regard to the treatment of detainees in the so-called “war on terror.” This new campaign responds to remarks George W. Bush made on the record last week, indicating the complicity of himself and other high officials in devising and approving the methods that were used to interrogate detainees.

Art Leonard, Professor at New York Law School, at 11:30 am EDT on April 14, 2008

Different Kinds of Lunatics

The call for John Yoo to be fired has brought about references to the “lunatic left” and the “lunatic right.” I don’t think these ought to be so easily equated with each other as we sometimes tend to do.

The difference lies in how each is dealt with by those who more or less share the same politics. Thus, many of the comments on “Torture and Tenure” disagree with the call to fire Yoo even as the statements make clear that the poster’s politics are liberal or left.

Consider the opposite case—David Horowitz’s endless campaign against the alleged domination and politicization of the academy by tenured radicals. I don’t think I’ve ever heard or read a dissent to Horowitz’s arguments and their effects from a self-avowed conservative. It’s possible I’ve missed one or two, of course. But there has certainly not been any large number of conservatives who have taken on Horowitz. The silence is deafening.

The Ward Churchill case makes the point. Those who believe he was fired for his politics should denounce the firing, whether their particular politics are left, right, or middle. I’ve not met any conservative who takes this position, though it seems at least reasonable if only because the whole situation arose from Churchill’s political, not academic, statements. Those who believe that he was fired for the standard kinds of academic misconduct, tend to view the termination as justified. I’ve heard this many times from people on the left, but seldom if ever from people on the right.

It’s the right which does most of the politicizing, unable to distinguish between the academic and political.The “lunatic left” is diverse; it was and is an invention of the “lunatic right,” which is monolithic. Richard Hofstadter had it right.

Interesting, isn’t it? Or maybe just depressing.

Ross Pudaloff, at 11:45 am EDT on April 14, 2008

Torture and Tenure

Since when is it appropriate to fire professors for controversial viewpoints? How ridiculous!

Nicola, at 12:50 pm EDT on April 14, 2008

Tenure is not the issue

I don’t think he should be teaching, but I don’t really see tenure as the issue here. What he did is worthy of a prison cell, and he and many others involved in these crimes should be in prison (after a lawful trial, of course, something that he tried to deny to others).

I see no point in bringing this issue to any university because the correct venue is a court of law. If he’s convicted and imprisoned, then the university can sort out on its own whether to keep him on the roster or not. Given that he wouldn’t be showing up for class, my guess is that the issue would be kind of irrelevant.

Alex, Asst. Prof, at 2:25 pm EDT on April 14, 2008

Torture and academic freedom

I agree that it would be an infringement of academic freedom to deprive the law professor for his considered opinions on torture. But what would we say if the law school was considering hiring such a person knowing his judgments on this matter? And this raises the question about the return of Condolezza Rice at Stanford now that it is known that she and other high administration officials gathered in the White house and actually supervised in some respects the “enhanced interrogations” of suspected terrorists.

Van Harvey, at 2:55 pm EDT on April 14, 2008

Churchill and Yoo

The obvious response to any comparison of Churchill and Yoo is that neither of them deserve to be fired for controversial speech. Academic freedom should fully protect both. Officially, of course, Churchill was sacked for alleged violations of CU’s academic integrity standards—violations which CU’s AAUP chapter documented as bogus. Yoo’s offense, however, is so much greater than Churchill’s in the scope and severity of its impact that it raises serious questions as to how universities should construe academic integrity. Should academic integrity rules be limited to matters of gross negligence or deceit in representing factual information or scholarly representations or should they extend to pronouncements that clearly violate basic human rights and cause substantial harm to groups and individuals within and beyond our borders? The Yoo case shows the line between free speech and integrity may be pretty well blurred when professors put their integrity out for hire.

Steve Mumme, Professor at Colorado State University, at 4:15 pm EDT on April 14, 2008

Firing Yoo

If John Yoo simply expressed the opinion that torture was okay, he shouldn’t be fired.

But as a public employee, he wrote a memo that justified the use of torture as part of an orchestrated campaign to bring torture into U.S. practice. It seems to me that the issue at hand is if he violated the canons of ethics of the legal profession, or the law.

If I were a law professor, and said in a public forum, “It’s okay to import a pound of cocaine,” that would be my opinion, and safe. If—as a lawyer—I formally advised a cocaine dealer that importing a pound of cocaine were legal, I wouldn’t deserve tenure at any reputable law school.

So, the question is about acts and not opinions, about ethics and not scholarship. I honestly don’t know what I would do if I were the president, the dean or the regents. What he did was scummy, but there are lots of professors who have done unethical, scummy things. And when Boalt hired him, they presumably knew that his legal opinions followed his political allegiances rather than the law. So I suppose he’d have a gripe that they changed the rules on him.

But I do know that it’s not about Yoo’s opinions, it’s about what he did as an attorney.

Patrick, at 7:30 pm EDT on April 14, 2008

Tenure at law schools

Questions have been raised about Yoo’s scholarship. I would ask on what basis he was granted tenure because what differentiates law from all other academic fields is that its journals are not peer reviewed, but run entirely by students. So, how does a law professor like Yoo get tenure if his articles were only reviewed by students? Did the members of his tenure committee actually read the articles (which would be a rare event for a tenure committee)and form their own judgments?

Sandy, at 7:30 pm EDT on April 14, 2008

appropriate punishment

I don’t think that Yoo should be fired from his tenured position, but I do think he should be tarred and feathered by the public (at least metaphorically). He wrote not only the torture memo but also another earlier one stating that the president has constitutional right to use military force against another country (i.e., Iraq) without congressional approval because he is commander in chief (the unitary presidency).His positions are not a matter for Berkeley to attack but the legal profession in general.

David, prof. emeritus at USC, at 8:50 pm EDT on April 14, 2008

I notice the absence in any of these comments of any acquaintance with Yoo’s past published research, which concentrates on the legal history of the constitutional presidential war powers clause. This is Yoo’s speciality, and as I understand it Yoo is presently researching the history of Lincoln’s use and articulation of presidential war powers in the context of dealing with U. S. citizens living outside of military war zones who were disloyal to the federal government and were definable risks for carrying on pro-insurgent activities “behind the lines.”

It may well be that it is because of Yoo’s expertise on these matters that he was brought on board the Office of Legal Council. The article that headlines these comments speaks of Yoo’s advice in the context of Pres. Bush’s use of his powers as commander-in-chief in time of war.

It seems to me that this is the real target of the anti-Yoo sentiments here: he made the mistake of being an official of a president whom the liberals and left-wingers among these commentators despise, and they root for ill to befall Yoo because they root for ill to the whole Bush administration.

In brief, this is politics as usual, and all the moralistic posturing of the ACLU can’t obscure the fact that it and those who support it are still living back in December, 2000, when SCOTUS’ Bush vs. Gore decision was handed down.

As far as I personally am concerned, these commentators want to deprive me and my loved ones of defense against murderous-minded terrorists; and the people working against the Bush administration are working against the U. S. and in favor of its destruction.

olustee, at 8:50 pm EDT on April 14, 2008

Tenure, Torture, and Academic Ethics

I hope the ACLU will weigh in against the American Freedom Campaign and in defense of the Bush Administration’s point man on presidential omnipotence.

Likewise, I hope the AAUP will defend academic due process against the lynch mob of people I usually agree with.

I belong to both these organizations and am tired of having high principle demeaned as mere leftist ideology. This controversy gives us a chance to show that even dangerous right-wing flacks like Yoo deserve the free speech protections of the Constitution and of academic due process as enshrined in the 1940 Statement of Principles.

Frederick Ferre, Professor Emeritus of Philosophy at University of Georgia, at 8:55 pm EDT on April 14, 2008

Torture?

So a bunch of self-appointed “prosecutorial leaders” — still angry and upset over the 2000 election — want to torment the Bushies.

Be careful what you wish for, O Brilliant Ones. Would you like Drs. Hannity, Limbaugh, et al., to re-open the cases of folks like these —

http://education.uic.edu/director...p;netid=bayers&more=publications

http://www.law.northwestern.edu/faculty/clinic/Dohrn/Dohrn.html

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

Throw rocks wildly — don’t act shocked if someone throws rocks back.

Buzz, at 7:15 am EDT on April 15, 2008

Not sure what makes Yoo “controversial". His research on the historical precedance and constitutionality of coersive interogation of those who have terrorized or seek to terrorize American civilians is both objective and rational. He is only controversial now because there is a minority who say so. Americans have a constitutional right to expect that the executive branch will do everything in its power to provide first and foremost for our security. There is nothing new or contriversial about that. With the usual checks and balances put in place, this new Detainee Interrogation Bill of 2006 had to pass both Houses before it even got to the president’s desk. Now that should make innocent people like me and Yoo rest easy.

denise, at 9:30 am EDT on April 15, 2008

Free Speech... for whom?

I am a law student at a different top-15 law school. I’m very strongly in the camp of the folks who say, “Tenure means nothing if it can’t protect academic freedom.” I’m by no means a card-carrying member of the ACLU, but the argument being advanced for firing Prof. Yoo is the same one used by people who want to arrest those who burn the American flag. I may find it to be despicable, and I may not personally agree with what he’s said/done (and I don’t), but tenure and the 1st Amendment exist to protect exactly these sorts of things; indeed, speech for which there is little or no popular support is EXACTLY the speech most in need of protection. The 1st Amendment offers little in the way of protection if it provides only nominal (and superfluous) support for speech with which most people agree. The speech that REALLY merits protection is the speech that majoritarian pressures would snuff out otherwise.

By the same token, I think it’s wrong as a matter of ETHICS for this professor to spread his self-marginalization on to his students (if that is, in fact, what he’s doing; the article offers no evidence of that), because it does them a disservice to give them one-sided views on anything. For that he might be disbarred, in which case a loss of tenure would be the least of his problems (not to mention inevitable). But I completely agree that one of the principal purposes of tenure is to protect academic freedom, and keep scholars above armchair political retribution.

John, at 2:20 pm EDT on April 16, 2008

Don’t fire him, jail him.

If Jack Goldmith’s revelations in the The Terror Presidency (and other reports) are true, Yoo and others conspired to issue disgracefully disingenuous legal rulings which virtually obliged the CIA to use torture in breach of US statute and international law.

Admittedly this was done in a highly emotionally charged political atmosphere but unless we are to allow a descent into barbarity we must hold the line on how we respond to the threat of suicide killers.

While torture, and prisoner abuse, is popular with some voters (whether or not it is operationally effective), its corrosive effect both on staff morale and the international standing of the US argues for vigor in enforcing our laws against the promotion of torture.

Mr Yoo and a number of others should be held accountable in a court of law. That’s what I believe. If he shows contrition, sure, give him early parole and let him teach where he can. Absent a legal process should he be punished by interference with his career? Probably not, but I for one wouldn’t sit down with him.

Frederick T Grant, at 7:30 am EDT on April 20, 2008

The Hypocrisy of it all!

First, you have got to be kidding me, the American Freedom Campaign. I guess what can be more in the interest of American freedom than denying someone, in this case a professor, their freedom of speech and thought. I guess academic freedom only applies to those who hold the “right” views. Now, talk about your “little Eichmanns.”

Second to compare Yoo to Churchill is absurd. There are two differences. Yoo, unlike the lunatic Churchill,loves America, and has its best interest in mind. More importantly, Yoo understands that to stop evil some unpleasantness is unnecessary. It is kind of the same idea expressed by Thomas Jefferson who, following the execution of Louis XVI,suggested that for the sake of liberty, a little bloodshed must be endured. Likewise, I an most thinking Americans, are willing to allow a little waterboarding to prevent another 9/11. Moreover, waterboarding is a far cry from the acts of decapitation used by those who seek to destroy civilization as we know it.

Robin West, at 12:35 pm EDT on May 9, 2008

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