rssThe Berkeley Tempest
Thursday, May 08, 2008 at 12:38 pm
- 17 Comments
An economics professor at the University of California-Berkeley has filed a formal grievance to investigate the tenure of one of Berkeley’s most controversial faculty members: John Yoo.
Yoo, a tenured Berkeley law professor since 1999, joined the Justice Dept.’s Office of Legal Counsel in 2001. There, he wrote numerous legal memoranda used to justify the administration’s decision to allow the torture of Al Qaeda detainees.
Illustration by: Matt Mahurin
In a recently released memo, dated Mar. 16, 2003, Yoo wrote that any statute passed by Congress to prevent torture, “would conflict with the Constitution’s grant of Commander in Chief power solely to the President.” Thomas Romig, who was the Army’s judge advocate general when the memo was written, told The Washington Post that Yoo’s memo effectively argued “there are no rules in a time of war.”
Yoo returned to Berkeley’s law school, formerly known as Boalt Hall, in 2004, to the discomfort of many faculty members on the famously liberal campus.
Yet no one on the faculty took action against Yoo until Bradford DeLong, a former Clinton administration economist, wrote a letter to the chairman of Berkeley’s Academic Senate, William Drummond, on Tuesday. The letter asked Drummond to create a fact-finding committee to determine Yoo’s culpability for the torture of detainees. “If you have not read John Yoo’s recently-released ‘Torture Memo,’ and have not been as horrified and appalled as I am, I strongly urge you to read it in full,” DeLong wrote to Drummond.
The economics professor’s decision to push back on Yoo’s Berkeley career came, as DeLong explained, “because I think somebody should, and I happen to be here.”
“To fail to state that Yoo’s interpretations are beyond the pale is to endorse them as lawyering-as-usual,” DeLong said.
DeLong recognizes his move raises serious questions about academic freedom. U.C. Berkeley School of Law’s dean, Christopher Edley, recently issued a public defense of Yoo on those grounds. “My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley,” Edley wrote in an open letter called “The Torture Memos And Academic Freedom” on April 10. “If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.”
DeLong says he does not take the argument lightly. He said he was “gravely” concerned with the academic-freedom implications of his own decision — and debated with himself and colleagues for weeks before issuing his letter.
“We have universities and professors because we think their thoughts and their judgments have validity, and if one concludes that, say, it is time to overthrow the government of the United States by force and violence then he or she is under an obligation to see that and we need to hear that,” DeLong said. But “the questions in Yoo’s case are knottier,” he added. There are serious questions about whether, for instance, Yoo “cross[ed] the line to become an actual conspirator to commit crimes,” or whether Yoo’s advocacy of torture “rise[s] to the level of grave scholarly misconduct?”
“Are any of these three grave enough to warrant censure or dismissal?” DeLong said. “I don’t think I know. But I do find myself leaning that way.”
Yoo, of course, is not without his defenders.
“John Yoo is an important scholar of the American presidency,” said Pepperdine University law professor Douglas Kmiec. “His government service has been controversial, but also rendered during a time of enormous uncertainty in terms of the nation’s security. One can debate various aspects of Professor Yoo’s legal reasoning, but the day when disagreement of that type gives rise to university ‘investigation’ upon ‘threatened loss of tenure’ is the day the University of California at Berkeley should depart the field as a serious academic institution.”
Even some of Yoo’s prominent detractors are discomfited by the idea of censuring him. Former Office of Legal Counsel attorney Marty Lederman wrote on his blog that he was “uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor” shortly after Edley issued his open letter.
Stephen Gillers, a legal-ethics specialist at New York University School of Law, took a Solomonic approach to the Yoo question. “Edley also says that as a pubic institution, the University of California guarantees Yoo free speech,” he said. “That’s true, but I don’t think advice to a client is a first amendment protected activity. Lawyers gets punished for bad advice all the time (it’s called malpractice) and sometimes, though rarely, prosecuted for advice that aids a crime or that is a crime. Yoo’s views were not in a law review article, where the first amendment would apply.”
But Gillers largely disagreed with DeLong. “I don’t think Yoo’s tenure should be challenged even if his advice was wrong, not even if it was egregiously wrong,” he wrote in an email. “Academic freedom protects the right to be a fool. The only basis for questioning Yoo’s tenure would be if he intentionally (knowingly and purposely) offered wrong or incomplete advice in order to give the representatives of his client (the president, the secretary of defense, the vice president) the comfort to do what they wanted to do anyway. The client of course was not them but the U.S.”
A spokeswoman for U.C. Berkeley School of Law, Susan Gluss, declined to comment. Yoo did not return an e-mail inquiry.
As for next steps even as Drummond considers DeLong’s inquiry later this month, Gluss pointed to a statement by George Breslauer, U.C.-Berkeley’s executive vice chancellor and provost, that cast doubt on the prospects for Yoo facing reprisal. “Whatever we may think about the policies John Yoo has advocated,” Btreslauer said, “for the university to discipline him would be an infringement of his academic freedom.”
DeLong said he believes Yoo should face some form of punishment.
“For the university to take no note of Yoo‘s “Torture Memo” is for it to endorse Yoo‘s claim that this is lawyering and law professing as usual,” he said, “that Yoo has some legitimacy when he claims, for example, that the president can legally order the torturing and maiming of prisoners and that Congress has no power to restrain him even though the Constitution explicitly gives Congress the power.”
Full disclosure: the author of this piece is a friend of DeLong’s.
Follow Spencer Ackerman on Twitter
17 Comments
Comment posted May 10, 2008 @ 9:20 pm
John Yoo advised the direct violation of American and International law based on reasoning that he must have known was spurious. It is a clear violation of an attorney’s duty to recommend violation of the law. However, if this is not bad enough, there is considerable evidence that torture was already being performed and he was justifying it after the fact. This is not an issue of academic freedom.
Comment posted May 9, 2008 @ 9:41 pm
I have been beating the drum about Yoo’s memos for four years, but not for the purpose of getting him ousted from his faculty position, let alone putting him in prison. I agree that the memos themselves do not present an issue of academic freedom, and I think that Yoo should face bar sanctions for passing off envelope-pushing advocacy (appropriate to a brief defending a client’s past conduct) as objective legal analysis (appropriate to advice to a client about future conduct). But in my assessment, he is not a criminal unless he consciously furnished a distorted analysis for the purpose of allowing torturers subsequently to assert good-faith reliance on what he knew to be bad legal advice. I do not believe that Yoo did that; I find it fully credible that he believed in what he wrote.
While many of Yoo’s legal arguments were thoroughly lacking in merit, almost all were grounded in some superficially plausible legal proposition. Moreover, the “forward-leaning” nature of the memos, while inconsistent with canons of professional responsibility, was driven by genuine and weighty (if badly misconceived) policy considerations.
Many of Yoo’s critics seem to assume, given the intensity of their belief that torture is morally wrong, that the illegality of harsh interrogation techniques must be clear beyond cavil. (Failing that, they seem to demand that lawyers push the envelope in the opposite way, so as to impute criminality to what is morally condemned.) The law, while not really obscure, is more complicated and filled with qualifications than many commentators think.
And it has only become more so, precisely because the country is itself conflicted on the question. Ironically, the memo snippet that sticks in the minds of most people is the “organ failure” standard, but Congress actually ended up adopting that standard in its 2006 amendment to the War Crimes Act (contained in the Military Commissions Act). And even the supposedly scrupled John McCain voted, not only for the MCA, but also to uphold the President’s veto of the bill barring CIA use of enhanced interrogation methods. So, unless we want to undertake a sweeping lustration of American public institutions generally, we should get a grip.
Comment posted May 8, 2008 @ 4:35 pm
Wrong is not the same as bad. DeLong has a way to go to back his contention. What are his reasons? Or he as zealous as the fool he condemns?
Comment posted May 8, 2008 @ 11:35 am
Wrong is not the same as bad. DeLong has a way to go to back his contention. What are his reasons? Or he as zealous as the fool he condemns?
Comment posted May 9, 2008 @ 4:41 pm
I have been beating the drum about Yoo's memos for four years, but not for the purpose of getting him ousted from his faculty position, let alone putting him in prison. I agree that the memos themselves do not present an issue of academic freedom, and I think that Yoo should face bar sanctions for passing off envelope-pushing advocacy (appropriate to a brief defending a client's past conduct) as objective legal analysis (appropriate to advice to a client about future conduct). But in my assessment, he is not a criminal unless he consciously furnished a distorted analysis for the purpose of allowing torturers subsequently to assert good-faith reliance on what he knew to be bad legal advice. I do not believe that Yoo did that; I find it fully credible that he believed in what he wrote.
While many of Yoo's legal arguments were thoroughly lacking in merit, almost all were grounded in some superficially plausible legal proposition. Moreover, the “forward-leaning” nature of the memos, while inconsistent with canons of professional responsibility, was driven by genuine and weighty (if badly misconceived) policy considerations.
Many of Yoo's critics seem to assume, given the intensity of their belief that torture is morally wrong, that the illegality of harsh interrogation techniques must be clear beyond cavil. (Failing that, they seem to demand that lawyers push the envelope in the opposite way, so as to impute criminality to what is morally condemned.) The law, while not really obscure, is more complicated and filled with qualifications than many commentators think.
And it has only become more so, precisely because the country is itself conflicted on the question. Ironically, the memo snippet that sticks in the minds of most people is the “organ failure” standard, but Congress actually ended up adopting that standard in its 2006 amendment to the War Crimes Act (contained in the Military Commissions Act). And even the supposedly scrupled John McCain voted, not only for the MCA, but also to uphold the President's veto of the bill barring CIA use of enhanced interrogation methods. So, unless we want to undertake a sweeping lustration of American public institutions generally, we should get a grip.
Comment posted May 9, 2008 @ 4:41 pm
I have been beating the drum about Yoo's memos for four years, but not for the purpose of getting him ousted from his faculty position, let alone putting him in prison. I agree that the memos themselves do not present an issue of academic freedom, and I think that Yoo should face bar sanctions for passing off envelope-pushing advocacy (appropriate to a brief defending a client's past conduct) as objective legal analysis (appropriate to advice to a client about future conduct). But in my assessment, he is not a criminal unless he consciously furnished a distorted analysis for the purpose of allowing torturers subsequently to assert good-faith reliance on what he knew to be bad legal advice. I do not believe that Yoo did that; I find it fully credible that he believed in what he wrote.
While many of Yoo's legal arguments were thoroughly lacking in merit, almost all were grounded in some superficially plausible legal proposition. Moreover, the “forward-leaning” nature of the memos, while inconsistent with canons of professional responsibility, was driven by genuine and weighty (if badly misconceived) policy considerations.
Many of Yoo's critics seem to assume, given the intensity of their belief that torture is morally wrong, that the illegality of harsh interrogation techniques must be clear beyond cavil. (Failing that, they seem to demand that lawyers push the envelope in the opposite way, so as to impute criminality to what is morally condemned.) The law, while not really obscure, is more complicated and filled with qualifications than many commentators think.
And it has only become more so, precisely because the country is itself conflicted on the question. Ironically, the memo snippet that sticks in the minds of most people is the “organ failure” standard, but Congress actually ended up adopting that standard in its 2006 amendment to the War Crimes Act (contained in the Military Commissions Act). And even the supposedly scrupled John McCain voted, not only for the MCA, but also to uphold the President's veto of the bill barring CIA use of enhanced interrogation methods. So, unless we want to undertake a sweeping lustration of American public institutions generally, we should get a grip.
Comment posted May 10, 2008 @ 4:20 pm
John Yoo advised the direct violation of American and International law based on reasoning that he must have known was spurious. It is a clear violation of an attorney's duty to recommend violation of the law. However, if this is not bad enough, there is considerable evidence that torture was already being performed and he was justifying it after the fact. This is not an issue of academic freedom.
Comment posted May 10, 2008 @ 4:20 pm
John Yoo advised the direct violation of American and International law based on reasoning that he must have known was spurious. It is a clear violation of an attorney's duty to recommend violation of the law. However, if this is not bad enough, there is considerable evidence that torture was already being performed and he was justifying it after the fact. This is not an issue of academic freedom.
Comment posted August 21, 2010 @ 6:26 am
(15 million are out of work, another 9 million workers can only find part-time jobs & millions more have given up: greatest recession in modern times)
Sorry Tale of Chancellor’s Office UC Berkeley: easily grasped by the public, lost on University of California’s leadership. The UC Berkley budget gap has grown to $150 million, & still the Chancellor is spending money that isn't there on $3,000,000 consultants. His reasons range from the need for impartiality to requiring the consultants “thinking, expertise, & new knowledge”.
Does this mean that the faculty & management of UC Berkeley – flagship campus of the greatest public system of higher education in the world – lack the knowledge, integrity, impartiality, innovation, skills to come up with solutions? Have they been fudging their research for years? The consultants will glean their recommendations from faculty interviews & the senior management that hired them; yet $ 150 million of inefficiencies and solutions could be found internally if the Chancellor & Provost Breslauer were doing the work of their jobs (This simple point is lost on UC’s leadership).
The victims of this folly are Faculty and Students. $ 3 million consultant fees would be far better spent on students & faculty.
There can be only one conclusion as to why inefficiencies & solutions have not been forthcoming from faculty & staff: Chancellor Birgeneau has lost credibility & the trust of the faculty & Academic Senate leadership (C. Kutz, F. Doyle). Even if the faculty agrees with the consultants' recommendations – disagreeing might put their jobs in jeopardy – the underlying problem of lost credibility & trust will remain.
Contact your representatives in Sacramento: tell them of the hefty self-serving $’s being spent by UC Berkeley Chancellor Birgeneau & Provost Breslauer.
Comment posted May 22, 2011 @ 3:32 pm
Always was interested in this theme! However, if this is not bad enough, there is considerable evidence that
torture was already being performed and he was justifying it after the
fact.
Comment posted June 3, 2011 @ 5:27 am
A spokeswoman for U.C. Berkeley School of Law, Susan Gluss, declined to comment. Yoo did not return an e-mail inquiry.
IBCBET SBOBET แทงบอล
Comment posted June 24, 2011 @ 9:22 am
Does anybody look for the cheap
flight to Bangkok? If yes, just click the ‘cheap
flight to Bangkok’ and prepare for the super trooper amusing time
there. Let’s enjoy the cheap
flight to Bangkok with us, wahoo!
Comment posted June 24, 2011 @ 9:23 am
Nintendo Wii,
the most cheerful game ever in this era. Boxing, doing yoga, or even performing
an operation are all possible with Wii.
Play Nintendo Wii
and make your dream come true together.
Comment posted June 24, 2011 @ 9:25 am
Would you like to do some game shopping? Just click! You will find almost every
type of game ;
for example, Playstation, X-Box, Nintendo Wii, etc. We have all the latest game models. Look
around and find the best
game model that suits you.
Comment posted June 24, 2011 @ 9:26 am
Do you recognize SAP; one of the well-known business model
software? The software help enhance the communication within and between your
company working sections. Do you want to know more? Then contact Gentech! Gentech
with 40 professional experts in business and SAP is ready to give you a hand.
Just trust Gentech
and your business organization will become a lot organized and efficient.
RSS feed for comments on this post.
Sorry, the comment form is closed at this time.
