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The Berkeley Tempest

Lawbooks.jpg
Lawbooks.jpg

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.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/scales-150x150.jpgIllustration 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. “

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“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?”

Image has not been found. URL: /wp-content/uploads/2008/09/yoo-embed.jpg“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

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 ‘s “Torture Memo” is for it to endorse ‘s claim that this is lawyering and law professing as usual,” he said, “that 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.”

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