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Explaining the "Inexplicable":

In an April 4 lead editorial, the New York Times referred to Berkeley's "inexplicable" employment of Professor John Yoo, author of the controversial "torture memos." Dean Christopher Edley responds:

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

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. . . .

Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

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. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless. . . .

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders. . . .

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

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Read the whole thing here.

The University of Minnesota Law School, my home institution, faced a related though distinct question a year ago about the one-term podium-fill hiring of University of St. Thomas Law School Professor Robert Delahunty, who worked with Yoo on some of the controversial Justice Department memos. (As it happened, Delahunty was taking over my Constitutional Law class for a semester while I was on research leave.)

I disagree, in some respects strongly, with many of the expansive assertions about executive power contained in the Yoo memoranda. My reading of the text of the Constitution, of the relevant history, and of the precedents, is that Congress enjoys considerable power along with the President when it comes to war. International treaty obligations not to torture, embodied in domestic law, are an expression of broad and deep congressional and executive will that can't be overcome absent the most explicit congressional authorization to do so. (As a side note, I find it difficult to conceive real-life scenarios when it would be necessary to use torture to extract vital and time-sensitive information from detainees, and I am very skeptical about the administration's claims that harsh tactics have been necessary to get such information in the past.)

Professor Yoo is a brilliant legal scholar, an excellent writer, and despite the caricatures of him, a kind and generous person. It is an intellectual delight to read his work, especially when I disagree with that work. He may have let the pressure of seemingly emergent circumstances cloud his judgment. Had I been in his shoes at that time (2001-03) and place, I can only hope I would have done better.

Like it or not, however, the basic ideas about presidential war power contained in the Yoo memoranda are embraced by serious lawyers and respected legal scholars like my former colleague Michael Paulsen. At least since 9/11, these ideas have become part of the mainstream of American legal discourse, both inside and outside the academy. I can't say that the Yoo memoranda are so beyond the pale of legal competence that a university should use them or the constitutional views they express as a basis to refuse to hire someone, or to fire that person once hired. A grant of tenure, as Dean Edley points out, raises the bar for employment action even higher.

The best response to ideas we strongly disagree with is generally not to blackball their proponents but, as one might put it, to beat them.

UPDATE: There's been an interesting and far more detailed exchange of views on John Yoo, Boalt Hall, academic freedom, and professional conduct at Balkinization, with posts by Jack Balkin, Sandy Levinson, Scott Horton (be sure to read Brian Leiter's comments to Horton's post), and Marty Lederman.

Chris 24601 (mail) (www):
Beat them? Even people who think Yoo should be fired don't think he should be beaten up, do they? Oh, you mean the ideas...
4.14.2008 2:09pm
The Mojo Bison (mail) (www):
Would that all academics were so high-minded. But I'll be forgiven for not holding my breath. I'm waiting for the inevitable Ward Churchill analogies to surface.
4.14.2008 2:11pm
alias:
I'm impressed and pleasantly suprised.
4.14.2008 2:14pm
MarkField (mail):
I find Dean Edley's response disingenuous. He has mis-stated the Berkeley academic standards (available here) in two important ways. First, he omitted the passage which states that the examples of misconduct which would justify discharge are merely examples and not exclusive. Thus, discharge is NOT limited to instances of criminal conviction. Second, he failed to mention the obligation of "intellectual honesty".

Dean Edley needs to take his own obligations seriously enough to face the issues directly instead of dodging them.

I just want to add my appreciation for the fact that you raised this issue here. This is restores my confidence that this site can still contribute meaningful discussion rather than wingnut political commentary.
4.14.2008 2:15pm
AntonK (mail):
Hear hear!

Thank you for a fine post.
4.14.2008 2:21pm
Oren:
And I can't say that the Yoo memoranda are so beyond the pale of legal competence that a university should use them or the constitutional views they express as a basis to refuse to hire someone, or to fire that person once hired.
Please elaborate on the boundaries of "the pale" so we can get an idea of exactly how far from the realm of sane men it extends.
4.14.2008 2:27pm
YF (mail):
So how long until David Weissbrodt writes a similar post?
4.14.2008 2:32pm
Ugh (mail):

And I can't say that the Yoo memoranda are so beyond the pale of legal competence that a university should use them or the constitutional views they express as a basis to refuse to hire someone, or to fire that person once hired.


I say again: where were these theories of Presidential power when Yoo was teaching me Con Law I? Because, he certainly didn't share them with the class at the time. I wonder why not.
4.14.2008 2:38pm
Observer:
"Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so."

I didn't understand this. Is he saying that it would have been *more acceptable* for Yoo to march with Nazis or advise communists???
4.14.2008 2:40pm
mls (www):
You seem to be conflating the issue of the reasonableness of Yoo's legal views with the question of whether he fulfilled his obligations as a government lawyer. Yoo may believe that the Constitution gives the President the power to authorize torture, regardless of what Congress says. This view may be defensible from an academic standpoint and reasonable in the sense that a lawyer would not be sanctioned for advancing it in court. It does not follow, however, that Yoo would fulfill his professional responsibilities if he advised the executive branch that this view was "the law," at least not without fully advising the client of the controversial nature of this view, the arguments on the other side, and the risks of proceeding in reliance on it.
4.14.2008 2:43pm
byomtov (mail):
As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place.

I don't see why not. If Yoo knowingly enabled illegal conduct then surely he is as culpable as those who carried it out. If the conduct was not illegal, then he is equally innocent. Rumsfeld did not commit the torture. He authorized it. As did Yoo.

Commission of a criminal act which has led to conviction in a court of law...

Conviction is a questionable standard in this particular case. Whatever the legalities, Yoo will almost certainly not be charged for political reasons. The curent Administartion isn't going to charge him, and may well issue a pardon. Even if there is no pardon, a subsequent Democratic Administration may well decide that bringing charges would have too many negative side-effects to be worthwhile.

So the conviction standard means that criminal conduct is irrelevant if one has political protection from prosecution. That seems unreasonable.
4.14.2008 2:52pm
J. F. Thomas (mail):
The criminal enterprise that is the Bush administration is well established. The president's final admission that he authorized torture this past weekend should have been the final nail in his coffin (so to speak).

That the Congress doesn't have the political will or bravery to impeach, convict and hand over to the DOJ for criminal charges so many of the actors who have so besmirched the good name of the United States is appalling. That we now argue whether or not Yoo's definition of torture is one that is reasonable or if waterboarding is torture shows how far this country, and our standard for civilized behavior, has sunk under this administration that has countenanced war crimes.

That the Dean of Berkley defends his continued employment of Yoo is not surprising.
4.14.2008 2:53pm
grackle (mail):
There is an irony in the improbability that anyone would have publically described John Yoo as "a kind and generous person," were it not for the his enthusiastic endorsement of a regime of torture.

I remain unconvinced that it would be a bad idea to more fully explore in some official venue, perhaps in the academic senate of the university, the extent to which Yoo actually fulfilled or , as noted by mls above, may have failed to fulfill his professional responsibilities to his client, whether that client was the country or the executive.
4.14.2008 3:00pm
Richard Aubrey (mail):
Yoo is in the position of a guy sent down a hole to find out what's at the bottom.
You don't like what he finds.
You don't blame the poor chump at the end of the rope.
You ought to blame whoever put the stuff down there.
It's certainly possible that whatever Yoo claims he found in the law is due to an oversight in the original legislation and precedents.
But oversights and negligent drafting are what keep a certain percentage of attorneys gainfully if not honestly employed.
4.14.2008 3:00pm
Thomas_Holsinger:
Yoo's book, The Powers of War and Peace, clearly shows his skills as a legal academic in two ways.

First, he definitely establishes that Congress's major power in the conduct of war lies in its control of appropriations. His contentions here were accepted even by the mainstream media in the 2007 dispute over continuation of the war in Iraq. This is fine legal scholarship.

Second, his chapter on the treaty power absolutely, positively, proves that he deserves tenure at a major law school. It is that boring. I tried several times to read it and kept falling asleep. My chin was on my chest no later than ten minutes into it.
4.14.2008 3:02pm
wm13:
I don't understand this discussion. Doesn't Yoo have tenure? Wouldn't firing him be illegal? (I mean illegal in the real world, as in a court having jurisdiction would order him reinstated and award him damages.) Is that what certain members of the Boalt faculty and the commentators are advocating, illegal action by a public institution?
4.14.2008 3:03pm
J. F. Thomas (mail):
It's certainly possible that whatever Yoo claims he found in the law is due to an oversight in the original legislation and precedents.

No, when he was at the bottom he ignored some stuff that was staring him in the face--like Youngstown and the Convention Against Torture and the rest of the civilized world's definition of torture. He only brought back from the hole (actually made stuff up when the stuff in the hole didn't provide the answer he wanted) the stuff that would allow his bosses to do what they wanted to do, or had already done. In that he was excusing their illegal acts. That is not the job of a government attorney.
4.14.2008 3:07pm
Chris_t (mail):

Second, his chapter on the treaty power absolutely, positively, proves that he deserves tenure at a major law school. It is that boring. I tried several times to read it and kept falling asleep. My chin was on my chest no later than ten minutes into it.



LOL
4.14.2008 3:09pm
rarango (mail):
Seems to me the Law School Dean has delivered himself of a very good statement about academic freedom. There are clearly some commenters who assert that Professor's Yoo's views dont comport with a majority of other lawyers' views on the subject--but is that the standard for academic freedom? Look like to me that is what some of Yoo's critics are asserting.
4.14.2008 3:18pm
Anderson (mail):
I appreciate Prof. Carpenter's interesting post, even though I disagree with its substance.

Professor Yoo is a brilliant legal scholar

It would be nice to see what evidence there is of this. His books, such as the one cited by Mr. Holsinger above, appear to be laughably bad, tendentious in the same manner as his OLC memos.

More broadly, Prof. Carpenter makes the same mistake as Dean Edley and many other (reluctant) defenders of Yoo. He discusses the torture memos as if they were merely Yoo's expressions of opinion, like articles in law journals.

They were not. They were legal advice provided to the government of the United States. See this recent post by Prof. Tamanaha on why this is such an important distinction.

Prof. Carpenter could perhaps make his case for Yoo more strongly by addressing one notorious issue: how is the omission, in the two OLC memos we've seen, of *any* citation or discussion of Youngstown, consistent with Yoo's "brilliance" or with his duty to provide an evenhanded assessment of the law?
4.14.2008 3:21pm
frankcross (mail):
I think the Yoo memos were terrible but am nevertheless amazed at liberal attacks.

It is as if it is taken as a fact that his advice was illegal or criminal. But the people asserting this "fact" are (a) not infallible God and (b) ideologically biased. Are you really unaware that you are ideologically biased? It's ok to have an ideology but don't confuse your beliefs with objective fact.

The whole point of tenure is not to have these decisions made by the ideologically contrary.
4.14.2008 3:21pm
Henry679 (mail):
So when he is found to be a war criminal in The Hague 10 years from now, can we be appalled at his continued mainstream acceptance then? Or do we have to wait for a thinly disguised portrayal of him in the updated remake of Judgment at Nuremburg?
4.14.2008 3:31pm
Dilan Esper (mail) (www):
I say again: where were these theories of Presidential power when Yoo was teaching me Con Law I? Because, he certainly didn't share them with the class at the time. I wonder why not.

Oh, that's easy. At that time, there was a Democratic president. Only Republican presidents have these powers.
4.14.2008 3:32pm
Ugh (mail):

Oh, that's easy. At that time, there was a Democratic president. Only Republican presidents have these powers.


Huh, hadn't thought of that one (true as it was at the time).
4.14.2008 3:35pm
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4.14.2008 3:40pm
Thomas_Holsinger:
Anderson,

You haven't read the book. I can tell.
4.14.2008 3:53pm
dejapooh (mail):
With what shall we beat him?
4.14.2008 4:02pm
Temp Guest (mail):

So when he is found to be a war criminal in The Hague 10 years from now,...

Have you patented your time machine yet or are you just innately omniscient?
4.14.2008 4:07pm
Pon Raul (mail):
The reason that I know that Yoo is full of []it is because his theory of executive power is very similar to the constitutional theory in both Larry Kramer's and Mark Tushnet's books on the constitution. This is also how I know that it is quite OK that he is a teacher at a top law school.
4.14.2008 4:10pm
Displaced Midwesterner (mail):
Like many, probably most, people I disagree pretty strongly with the Yoo memo's analysis and what it allowed. But I have to applaud the dean's comments. Academic freedom really would be hollow if situations like this were reasons for censuring or firing a professor.

I'm also pretty unconvinced that further investigations into whether he fulfilled his professional responsibilities or looking into alternatives on the grounds that Yoo will never be prosecuted due to political protection are good ideas. Really, the test should be whether he remains a good scholar and teacher. I haven't heard any indication of misconduct in the classroom or dishonesty in his academic work (the memos at OLC was not academic scholarship). Honestly, for purposes of tenure and academic freedom, what is done outside those two categories of teaching and academic scholarship should not really matter. Even when it comes to conviction the best justification for giving someone the boot is because you can't keep teaching from a jail cell.
4.14.2008 4:15pm
byomtov (mail):
It is as if it is taken as a fact that his advice was illegal or criminal. But the people asserting this "fact" are (a) not infallible God and (b) ideologically biased. Are you really unaware that you are ideologically biased? It's ok to have an ideology but don't confuse your beliefs with objective fact.

Frankcross,

I take your point. But I wonder what process you would recommend to determine whether Yoo's advice was illegal or criminal? A key part of my comment above is that the normal method for determining criminality - charges brought, a trial, etc. - are not available in this case, for political reasons. Given this, I don't think the part of Edley's argument that rests on the lack of a criminal conviction is valid. What would be his reaction to having on the faculty a murderer who received a pardon before trial? No conviction, so no big deal?
4.14.2008 4:19pm
Displaced Midwesterner (mail):
byomtov,

What would be the problem with having a murderer who was pardoned before trial on a faculty?
4.14.2008 4:23pm
Dave D. (mail):
...Professor Carpenter,

....Professor Yoo couldn't have marched with the Nazi's in Skokie because the Nazi's never marched in Skokie.
4.14.2008 4:31pm
rarango (mail):
Frankcross: well said and directly to the point. I thought we got over ideological tests of purity during the 1950s.
4.14.2008 4:37pm
MarkField (mail):
Really, the test should be whether he remains a good scholar and teacher. I haven't heard any indication of misconduct in the classroom or dishonesty in his academic work (the memos at OLC was not academic scholarship). Honestly, for purposes of tenure and academic freedom, what is done outside those two categories of teaching and academic scholarship should not really matter.

I don't get this argument. First, the Berkeley standards themselves assume that conduct outside of teaching and scholarship can be considered for purposes of discharge. That's what Dean Edley referred to when he noted the provision about being convicted of crimes. Second, I don't see how Yoo can have it both ways. Either he was not bound by the academic standards while at DOJ -- in which case he should not receive any protection against discharge -- or he is entitled to protection against discharge, in which case he must meet the Berkeley standards.


It is as if it is taken as a fact that his advice was illegal or criminal. But the people asserting this "fact" are (a) not infallible God and (b) ideologically biased. Are you really unaware that you are ideologically biased? It's ok to have an ideology but don't confuse your beliefs with objective fact.

The whole point of tenure is not to have these decisions made by the ideologically contrary.


It would be a serious mistake to presume Yoo's guilt and discharge him without any hearing. But the publicly available facts seem to me to provide substantial ground for an investigation by Berkeley. This is all the more true in the case of alleged war crimes, which are often committed by governments and typically not prosecuted in such cases for obvious reasons.
4.14.2008 4:38pm
MarkField (mail):

I thought we got over ideological tests of purity during the 1950s.


Yoo did not merely express an opinion about torture a la Alan Dershowitz. If he had done only that, he'd be entitled to the full protection of tenure (subject to any claims that he failed to meet Berkeley's standard of "intellectual honesty"). Instead, and assuming certain public facts, Yoo appears to have known that crimes were or were soon to be committed, and issued a phony opinion with the intent to immunize those crimes. It's that which has caused the uproar, not the mere expression of his (abhorrent) opinion.
4.14.2008 4:44pm
J. F. Thomas (mail):
Yoo did not merely express an opinion about torture a la Alan Dershowitz. If he had done only that, he'd be entitled to the full protection of tenure (subject to any claims that he failed to meet Berkeley's standard of "intellectual honesty").

Hear, hear. It is difference between saying something shouldn't be illegal and actually aiding and abetting a crime.
4.14.2008 4:56pm
Henry679 (mail):
Really, Yoo, Rumsfeld, Cheney and other members of the torture cabal know that in few years it will very likely be unsafe for them to travel abroad. The fact that some people here can't see that is telling (about them) but not surprising. You don't have to be "infallible God", possess "a time machine" or even work a Ouija board to see how this is heading.
4.14.2008 5:01pm
donaldk2 (mail):
I love it. One of the early posters refers to "wingnuts", and following this is a whole spate of them. This whole bitter crowd wants to make Yoo "unperson".

One poster refers to him as a "war criminal". A predominent part of the rest don't use that term, but that is what is implied. If he is guilty of something, it is only that he has displeased the gang of lefties who appear to inhabit this post.
4.14.2008 5:04pm
A. Zarkov (mail):
"If Yoo knowingly enabled illegal conduct then surely he is as culpable as those who carried it out. If the conduct was not illegal, then he is equally innocent. Rumsfeld did not commit the torture. He authorized it. As did Yoo."

Yoo did not authorize torture as he is not in the chain of command. He rendered a legal opinion, not a decision or an order. If he took an active part in the planning and execution of an illegal act, you might have a point. As far as I know he did not.
4.14.2008 5:07pm
Henry679 (mail):
Whatever, donaldk2. If you think the rest of the world is buried up to the neck in our partisan BS, you are delusional. Cases will be brought by victims (presumably you can understand that much), and they will work their up through foreign courts and/or international tribunals not beholden to our jingoistic standards. But then you can rant about how they are run by a "gang of lefties", too, and I am sure you will feel that all is explained by that great insight.
4.14.2008 5:10pm
J. F. Thomas (mail):
This whole bitter crowd wants to make Yoo "unperson".

Damn right I am bitter. He is partially responsible for destroying the human rights reputation of United States.

I do not want him to be an "unperson". I want his name to be remembered through the ages. But alongside the likes of Benedict Arnold or Aldritch Ames.

Those of you who think his memo is no big deal and we should let him live his life in peace are the ones who would make him into an "unperson". Whatever happened to the personal responsibility you are always so fond of?
4.14.2008 5:15pm
Displaced Midwesterner (mail):
MarkField,

My comment is directed toward what "should" be the standards for protection of academic freedom. As for the Berkeley specific standards, they state, according to what the Dean consideres relevant at least:


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


is conduct that can be considered inappropriate. But these standards themeselves require both a conviction and that the conviction "clearly demonstrates unfitness" to remain on the faculty. Ideally, in my opinion, it would be best for academic freedom if unfitness were read narrowly, encompassing things like some sort of criminal misconduct with a student.
4.14.2008 5:16pm
rarango (mail):
Wow--I'm thinking that Obama, in the event he be elected, should select John Yoo as his attorney general! That should drive at least half the commenters here absolutely nuts!
4.14.2008 5:17pm
Henry679 (mail):
I should think that Obama being elected, period, would drive at least half the commentators here nuts--no frosting on the cake required.
4.14.2008 5:20pm
Anderson (mail):
You haven't read the book. I can tell.

Quite right, I haven't (and didn't claim to). The reviews that I saw of it were pretty devastating, and like many people, I rely on reviews to help me devote my time to reading worthwhile books. Sometimes this is effective, sometimes not.

Cass Sunstein, David Cole, and Stephen Holmes have reviewed The Powers of War and Peace; if anyone cares to suggest particular errors in those reviews' criticism of Yoo, I am all ears.

(Amusingly, I kept wanting to type Yoo's title as "Laws," not "Powers" -- guess that goes to a difference b/t me and Yoo.)
4.14.2008 5:22pm
frankcross (mail):
byomtov, I would want a nonideological consensus. Thus, if there were an outcry among both conservatives and liberals, combined with solid arguments, that would do it for me. But I'm not willing to say that conservatives are generally dishonest (or liberals are). If intellectually respectable people are making intellectually respectable defenses, that's good enough, however much I may disagree with the arguments
4.14.2008 5:23pm
Anderson (mail):
(N.b. that some of the reported claims about Yoo's views on treaties are probably valid -- Sunstein happily concedes as much, and Cole criticizes Yoo in a passage that looks a bit peculiar after Medellin:

Yoo would go further, insisting on a presumption against judicial enforcement unless Congress clearly specifies otherwise. On this view, treaties lack the force of law, and become mere political promises, having about as much force as campaign rhetoric.

I think that's where the Medellin opinion pretty much left us, actually.)
4.14.2008 5:27pm
wm13:
Am I the only person who remembers that practically every college professor in America--well, okay, every college professor in New Haven--continually described Henry Kissinger as a war criminal? My question is, in the light of historical experience, how can someone like me, who actually remembers things, be sure that Yoo really is a criminal, and not just unpopular among people on the far left?
4.14.2008 5:35pm
rarango (mail):
wm13--your memory is good; not only Henry the K (primarily the cambodian bombing which apparently sent Tony Lewis of the NYT off the deep end, and from which he never recovered), but Richard Nixon, William C. Westmoreland, and Robert MacNamara.
4.14.2008 5:40pm
Anderson (mail):
Thus, if there were an outcry among both conservatives and liberals, combined with solid arguments, that would do it for me.

Well, at that rate, you're not going to be persuaded that torture is illegal, or that waterboarding is torture, or for that matter that creationism is bunk.
4.14.2008 5:41pm
Mahan Atma (mail):
If Yoo's analyses were good faith attempts to render a legal opinion, please explain how he omits any discussion of the Youngstown case.

Youngstown was pretty squarely on point, and would seem to eviscerate his opinion re Executive power in wartime.

So why didn't he discuss it?
4.14.2008 5:45pm
J. F. Thomas (mail):
continually described Henry Kissinger as a war criminal?

Actually, Kissinger has to be very careful about where he travels as several countries (e.g., Chile, France) have outstanding warrants to question and charge him on a variety of issues from our involvement in Vietnam and Cambodia to Chile.

My fondest hope is that a goodly number of our current administration, at the very least, will be afraid to travel abroad in the very near future.
4.14.2008 5:45pm
MarkField (mail):

My comment is directed toward what "should" be the standards for protection of academic freedom. As for the Berkeley specific standards, they state, according to what the Dean consideres relevant at least:

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

is conduct that can be considered inappropriate. But these standards themeselves require both a conviction and that the conviction "clearly demonstrates unfitness" to remain on the faculty. Ideally, in my opinion, it would be best for academic freedom if unfitness were read narrowly, encompassing things like some sort of criminal misconduct with a student.


As I pointed out in my first comment (1:15), Dean Edley seriously mis-stated the Berkeley standards. They are NOT limited to conviction of a crime; that is merely an example. Moreover, the standards include a requirement of "intellectual honesty", which Dean Edley omitted altogether.

Even if Berkeley were to adopt narrower standards, I doubt they would ever be so narrow as to preclude discharge for really serious felonies such as rape, slavery, murder, torture, etc.
4.14.2008 5:47pm
MarkField (mail):

I would want a nonideological consensus. Thus, if there were an outcry among both conservatives and liberals, combined with solid arguments, that would do it for me.


I think this stretches non-partisanship to the point of solipsism.
4.14.2008 5:51pm
AntonK (mail):
donaldk2 says:

"One poster refers to him as a "war criminal". A predominent part of the rest don't use that term, but that is what is implied. If he is guilty of something, it is only that he has displeased the gang of lefties who appear to inhabit this post."
Yes, it's called Bush Derangement Syndrome, first diagnosed and discussed by Charles Krauthammer in the Washington Post (reprinted here)>
4.14.2008 5:54pm
wm13:
Interesting if true, J.F. Thomas. I have a hard time imagining a mind like yours, which regards Fidel Castro, the perpetrators of the Soviet gulag, and Kim Jong Il with equanimity, but is still frothing about Henry Kissinger. Fortunately, we have but little personal contact.
4.14.2008 5:56pm
Oren:
wm13, while I condemn Castro and Il as unrepentant war criminals in their own right, that has nothing to do with the merits of Kissinger's actions in Cambodia - their actions are incapable of absolving his.

Moreover, Kissinger is one of ours and therefore we have an affirmative duty to condemn his actions above and beyond general criticisms for the rest of the world. A mirror is a much better tool for finding fault than a telescope.
4.14.2008 6:02pm
donaldk2 (mail):
I should not have used the invidious term "lefties."

What I meant was "great souls."
4.14.2008 6:04pm
byomtov (mail):
Displaced Midwesterner,

Is it your opinion that no misconduct outside the university should be grounds for loss of tenure? Murder and rape are not disqualifying (so long as the victims are not a part of the university community), but academic dishonesty, like plagiarism or falsifying research are?

Frankcross,

A nonideological consensus? Among whom? The public at large? You'll never get that no matter what. Just read some of the comments about torture on this site. If what you're after is some sort of formal inquiry conducted by knowledgeable individuals, with access to evidence and care taken to avoid political bias, then that might make sense.

It would be a lot fairer than the procedures used at Guantanamo.
4.14.2008 6:05pm
wm13:
Oren, JF Thomas was gloating about the behavior of the French, who he claims are trying to arrest Henry Kissinger. I don't know if that's true, but I say with some assurance that Henry Kissinger, despite the rantings of my professors, is not on trial, and is not going to be on trial, here in the U.S.
4.14.2008 6:07pm
J. F. Thomas (mail):
I have a hard time imagining a mind like yours, which regards Fidel Castro, the perpetrators of the Soviet gulag, and Kim Jong Il with equanimity

I don't know where I have ever done this. As for Kissinger, I don't have much opinion one way or the other about the man. I was just pointing out that he is in legal jeopardy in some foreign countries for his actions during the Nixon administration.
4.14.2008 6:08pm
wm13:
J.F. Thomas, you said that it was your "fondest hope" that members of this administration would be unable to travel abroad. I take it that your "fondest hope" stands several notches above the hope that Fidel Castro, Kim Jong Il, etc. are brought to justice. Maybe I should have said that you regard them with "relative" equanimity.
4.14.2008 6:13pm
J. F. Thomas (mail):
Yes, it's called Bush Derangement Syndrome

Yeah, it's not like Bush had members of his own cabinet and inner circle murdered.
4.14.2008 6:13pm
tree falling in the woods:
If you think the rest of the world is buried up to the neck in our partisan BS, you are delusional. Cases will be brought by victims (presumably you can understand that much), and they will work their up through foreign courts and/or international tribunals not beholden to our jingoistic standards.

Talk about delusional. Why should any (former) member of the current administration be concerned about foreign courts? At most this would hamper their international travel.
4.14.2008 6:16pm
LM (mail):
frankcross,

Are you really unaware that you are ideologically biased? It's ok to have an ideology but don't confuse your beliefs with objective fact.

This ought to be a required click-through before posting a comment on any blog.
4.14.2008 6:18pm
J. F. Thomas (mail):
J.F. Thomas, you said that it was your "fondest hope" that members of this administration would be unable to travel abroad. I take it that your "fondest hope" stands several notches above the hope that Fidel Castro, Kim Jong Il, etc. are brought to justice. Maybe I should have said that you regard them with "relative" equanimity.

Actually, someone who was certainly responsible for much worse crimes than Castro and maybe even Kim Jong Il, Suharto, recently died. His crimes have mostly been forgotten though. Probably because the million or so people he had executed shortly after he took power (not to mention the atrocities in East Timor aided and abetted by Kissinger) were members of the communist party, so they don't count.
4.14.2008 6:19pm
frankcross (mail):
byomtov, I thought I implied, but obviously failed, that the consensus be among academics in the field.
4.14.2008 6:22pm
LM (mail):
By the way, I don't recall seeing this story mentioned on FRONTPAGEMAG. Did I overlook Horowitz's take on academic freedom at Boalt?
4.14.2008 6:25pm
astrangerwithcandy (mail):
"Yes, it's called Bush Derangement Syndrome

Yeah, it's not like Bush had members of his own cabinet and inner circle murdered."

what does that mean. no, seriously.
4.14.2008 6:58pm
Anderson (mail):
I think this stretches non-partisanship to the point of solipsism.

David Broder ... solipsist.

That explains a lot, actually.
4.14.2008 7:10pm
LM (mail):
astrangerwithcandy,

There were people on the right (one in my own family) convinced that Bill and Hillary had Vince Foster murdered. The point being a certain irony in attributing left wing positions to Bush Derangement Syndrome.
4.14.2008 7:10pm
J. F. Thomas (mail):
There were people on the right (one in my own family) convinced that Bill and Hillary had Vince Foster murdered.

Don't forget deliberately crashing Ron Brown's plane.
4.14.2008 7:43pm
Displaced Midwesterner (mail):
byomtov,

That's not precisely my position, but I am deeply skeptical of using non-academic conduct as a basis for revoking tenure. As such, I'm curious to know in what way non-academic conduct, including outside criminal conduct, could actually usefully be used in evaluating whether to remove someone from a faculty, while still ensuring robust academic freedom. In other words, as I more or less asked earlier, what harm is there exactly from allowing a pardoned supposed murderer to retain his position if he is an otherwise good teacher and scholar?
4.14.2008 7:50pm
LM (mail):
I did forget that.
4.14.2008 7:51pm
JosephSlater (mail):
It's also amusing to see people still clinging to the "BDS" meme to explain criticism of the man, even when Bush's miserable record has driven his national approval ratings to 28%.
4.14.2008 7:57pm
Anderson (mail):
Bush Discernment Syndrome, let's say.

Displaced, the point's been made above that Yoo as a law professor is not just a "teacher and scholar" -- he is training professionals who will have fiduciary duties to their clients and who will be failures in that respect if they ever provide the level of shoddy, bad-faith advice found in Yoo's memos.

If Yoo repudiated them, that might change my mind. But he's done the opposite.

The man is not fit to prepare students for careers as lawyers. He's a case study in how not to practice law. He should be fired and sent to lurk in some "conservative" foundation as its Resident Scholar.
4.14.2008 8:02pm
byomtov (mail):
Displaced MW,

My initial reaction is that it's not a good idea to have murderers around a workplace in general, without specific reference to universities. It's not wholly clear to me what academic freedom has to do with it. I can imagine, I suppose, a politicized case where the charge was trumped up, and someone decided a pardon was the best way out of a nasty situation. That would impact academic freedom, and I agree with you in that situation

The case I have in mind is the more mundane sort of criminal, whose pardon is purely a political favor. In such an instance conviction would be an impossible standard to meet.

Why not allow this murderer to remain on the faculty? Because he sets a bad example? Because his presence is disruptive? Because he has demonstrated he cannot be relied on to behave with integrity, or even to avoid violence?Because being a faculty member does not exempt one from ordinary rules of conduct? (What would happen to a student who committed a much lesser offense?) Because some members of the community will, reasonably, regard him as physically dangerous? Because the university is not a world unto itself, but part of the larger commmunity, and ought not provide prestigious employment to murderers? I guess I could go on.

But let me ask you what facts of a crime you consider relevant? Why does conviction matter, as long as the convict is a good scholar and teacher? (After all, I tried to postulate that our pardoned offender was clearly guilty.) Does it matter if the crime victim is a member of the university community, and if so, why?

It's always been amazing to me that some schools will forgive their athletes almost anything, including felonies, as long as they continue to perform well on the field. I guess that attitude is not restricted to the athletic department.
4.14.2008 8:42pm
astrangerwithcandy (mail):
slater -

so, bc he is unpopular they aren't conspiracy theories, but legitimate criticisms? thats top notch.


so my irrationally liberal acquaintances who blame Bush for not providing a Visa to their friend in Africa are correct? its all Bush, or might there be a nugget of truth that your side has some folks with an unhealthy amount of hate that clouds judgment and leads to ridiculous assertions?
4.14.2008 8:49pm
LongCat:

Displaced, the point's been made above that Yoo as a law professor is not just a "teacher and scholar" -- he is training professionals who will have fiduciary duties to their clients and who will be failures in that respect if they ever provide the level of shoddy, bad-faith advice found in Yoo's memos.


Writing an opinion that finds a way to stretch the law enough to fit what your client wants to do? Yoo sounds like he would have done well in a corporate section.
4.14.2008 8:59pm
Crimso:
"I guess that attitude is not restricted to the athletic department."

Clearly demonstrated by the positions currently held by Ayers and Dohrn.
4.14.2008 9:12pm
Crimso:
And I'll also point out to the perpetually outraged that Ayers and Dohrn didn't merely offer legal advice on the legality of terrorist bombings. They, you know, ACTIVELY ENGAGED in them.
4.14.2008 9:15pm
Andrew J. Lazarus (mail):
Professor Yoo should remain in Berkeley right up until the moment he is taken as a war criminal and hanged. And he is a war criminal, just as much as whatever Reichsadvokat told Eichmann it was lawful (in Germany) to massacre Jews even if he didn't participate in the process himself.

The idea that Yoo is in person kind and gentle is so silly. Any number of hideous murderers were kind and gentle when off the clock.
4.14.2008 9:36pm
titus32:
Displaced, the point's been made above that Yoo as a law professor is not just a "teacher and scholar" -- he is training professionals who will have fiduciary duties to their clients and who will be failures in that respect if they ever provide the level of shoddy, bad-faith advice found in Yoo's memos.

This proves way too much. Is shoddy bad faith scholarship grounds for termination, or just shoddy bad faith legal advice? The distinction doesn't matter for teaching law students -- I doubt Yoo will be providing instruction in professional ethics. Rather, he'll be teaching constitutional law. Assuming, then, that Yoo's memo is beyond the pale, it's no different for purposes of his academic job than another beyond the pale law review article.
4.14.2008 9:41pm
not impressed:
didnt kiwi camera get the same treatment from GMU law??
4.14.2008 9:42pm
Crimso:
"And he is a war criminal, just as much as whatever Reichsadvokat told Eichmann it was lawful (in Germany) to massacre Jews even if he didn't participate in the process himself."

I don't think that was really the way it happened. But I do enjoy yet another Bush=Hitler analogy. Goes a very long way towards understanding where you're coming from.
4.14.2008 9:45pm
Crimso:
And how about the members of Congress who knew that waterboarding was taking place at the time AND DID NOTHING? Surely they should be be executed as well. At least the Republicans should, eh? The Democrats can always claim they were once again fooled by that idiot Bush. Or is he an evil genius? So hard to keep up...
4.14.2008 9:49pm
davod (mail):
Arn't Ayers and Dohrn academics.
4.14.2008 10:04pm
LM (mail):
astrangerwithcandy

so my irrationally liberal acquaintances who blame Bush for not providing a Visa to their friend in Africa are correct? its all Bush, or might there be a nugget of truth that your side has some folks with an unhealthy amount of hate that clouds judgment and leads to ridiculous assertions?

I don't really understand the situation you're describing, but let's stipulate clouded judgment. What's your evidence for hatred? OK, let's rise above that and stipulate the hatred too. What's your evidence the hatred caused the clouded judgment?

BDS is a demagogic explanation that lives in a perfect deterministic loop. There's no argument against Bush, his administration, his party or his policies you can't just presume BDS and slap it on, as if details like hatred and causation didn't require evidence. But once you've invoked BDS, the arguers are irrational haters, so why waste time with a logical response anyway? And the irony is that the person invoking BDS believes he's actually said something!
4.14.2008 10:17pm
Crimso:
"And the irony is that the person invoking BDS believes he's actually said something!"

Just like people who begin their arguments with variations of "The criminal Bush Administration" and end them with wet dreams of war crimes trials and executions.
4.14.2008 10:35pm
Crimso:
"Arn't Ayers and Dohrn academics."

Indeed they are. And anyone who believes Yoo should be fired but they shouldn't is a blatant hypocrite. And anyone now calling for Yoo to be fired but who also say Ayers and Dohrn should be fired, but didn't say that when Ayers and Dohrn were given their positions (or became aware of it) are similarly suspect in their rhetoric.
4.14.2008 10:42pm
wm13:
This discussion demonstrates pretty clearly that the phrase "war criminal" is a rhetorical trope used by left/liberals for their political opponents. Use of this trope correlates pretty highly (both here and at Balkinization) with the Bushitler trope. Time to move along.
4.14.2008 11:00pm
MarkField (mail):
It seems like there aren't many so-called conservatives eager to discuss the actual merits of Yoo's case. I haven't decided yet whether I find that encouraging or discouraging.
4.15.2008 12:06am
LM (mail):

Crimso,

"And the irony is that the person invoking BDS believes he's actually said something!"

Just like people who begin their arguments with variations of "The criminal Bush Administration" and end them with wet dreams of war crimes trials and executions.

Calling Bush a criminal, without supporting argument or evidence is juvenile and unpersuasive. Both sides engage in that sort of nonsense. But only the right uses a pat dodge like "BDS" to avoid engaging virtually any criticism from the left that can be associated, however remotely, with George Bush. It's funny how nobody mentioned BDS when some people talked about impeaching Bush over his immigration policies.
4.15.2008 12:06am
Perseus (mail):
I must confess that I am inclined to agree with Mark Field on this one. Under "Types of Unacceptable Faculty Conduct" (p. 2), the policy manual states: "the lessons of experience and evolving standards of the profession will promote reasoned adaptation and change of this Code." That strikes me as an open invitation to invent whatever arbitrary standards are necessary to achieve the politically correct result (much like a certain judicial philosophy).
4.15.2008 12:24am
Displaced Midwesterner (mail):
byomtov,

I find a lot of the reasons you list to consider outside criminal conduct in these situations unpersuasive. People can be considered dispruptions or unwated for lots of reasons; if we want to foster academic freedom why should we allow that to be a reason to fire someone with tenure? Controversial people are often the ones most likely to fit that description. Granted, criminal conviction is fairly neutral principle you could apply to these situations. But if someone is pardoned, then they have not been convicted, and you are left having to decide whether that pardoned individual "really did it" or whether other reasons justify dismissal. And that puts you in a situation ripe for the kinds of motivations for dismissal that are antithetical to academic freedom. Things like having proven an inability to follow the rules of society or showing someone to be a danger I have some reservations about. There is a reason propensity inferences are often inadmissible and viewed skeptically in many courts.

At the end of the day, when I take off my devil's advocate horns, I could agree that certain sorts of bright line rules like "criminal conviction," especially for certain offenses (murder, rape, etc., or offenses involving the school community) are consistent with fostering an environment of academic freedom. But as with all situations where you use a bright line rule you are going to be over- and under-inclusive. In some sitautions, as might well be the case with Yoo, there are going to be political or other factors that will preclude a conviction ever happening. But such situations are likely to be rare, and I think that it is a reasonable price to pay that sometimes a John Yoo will retain his position, because it means that ideology and politics will largely be kept out of these situations.
4.15.2008 12:45am
Brian G (mail) (www):
Lawschool: Where full and unfettered debate about how wrong and evil conservatives and right-wingers are is fully welcomed and encouraged, and where you have the full First Amendment right to spout liberal and leftist nonsense to your heart's content.
4.15.2008 1:44am
Jim Rhoads (mail):
The hyperbolic accusations of "war criminal" and "torturer" seem to come from those who have not prosecuted anyone in this country for such serious offenses.

Please consider that in our nation's history, there are but few examples of successful prosecutions for such offenses.

Yamashita comes to mind. The activities of his troops were pretty extreme even by the standards of 60+ years ago.

The question I have of the prosecutors to be is where do in this country do you think you could get an indictment much less a conviction of Prof. Yoo?
4.15.2008 1:57am
Jim Rhoads (mail):
The hyperbolic accusations of "war criminal" and "torturer" seem to come from those who have not prosecuted anyone in this country for such serious offenses.

Please consider that in our nation's history, there are but few examples of successful prosecutions for such offenses.

Yamashita comes to mind. The activities of his troops were pretty extreme even by the standards of 60+ years ago.

The question I have of the prosecutors to be is where do in this country do you think you could get an indictment much less a conviction of Prof. Yoo?
4.15.2008 1:57am
Orson Buggeigh:
IANAL, but I am watching the sundry people who are lawyers argue this, and don't find it reflecting well on some of them. Repeatedly, charges are made that Bush, Cheney, Yoo, and various others are guilty of 'war crimes,' or 'crimes against humanity,' or they are 'criminals.' The thing is, I haven't been able to find any report of these guys being charged with anything, let alone convicted. It seems to me that no matter how morally repulsive these men may be, they have not been convicted of anything, and calling them war criminals is out of order. No matter how much you may believe in your heart of hearts that they are guilty, they have not been convicted yet. Saying it is so does not make it so.

I also found it humorous that academics are rallying for academic freedom for intellectual incompetents and academic frauds like Ward Churchill. There's yet another chump singing his praises on Inside Higher Ed. But the idea of offering the same protection to John Yoo doesn't get much support from academics, even though Yoo actually earned tenure for publications that he wrote himself, and which have not been discredited, unlike Churchill.

But let us suppose the majority of Yoo's critics are correct, that academic freedom does not cover people accused of incompetence and misconduct in their professional lives on or off campus. So Berkeley can cashier Yoo without compunction. Fair enough, but why stop there? Angela Davis, Ayers, and Dohrn are all objectionable,and there are actual crimes charged against them. Out they go. Surely the 88 professors at Duke who signed the newspaper ad falsely accusing the lacrosse players of rape are guilty of substantial misconduct worthy of dismissal. Duke paid out millions to keep that little matter from being aired publicly, and now other players are suing. But why stop there? I'm sure we can all come up with our own little list of academics who wouldn't be missed.

(Begin Sarcasm) Why should the people who oppose Yoo get the fun of demanding and obtaining the removal of faculty they find objectionable? Let's just build a guillotine, and assemble the Committee on Public Safety. No need for long investigations and trials,just denounce that prof you find so objectionable,and he's gone. Everyone can play, at least until they lose their heads. (End Sarcasm)

It should be self evident,but clearly isn't. Academic freedom is not there to protect the people we agree with, but the people we find hateful, and whose opinions we find repulsive. Academic freedom is there, and protects us, ONLY if it protects the people we most dislike. John Yoo has offered opinions that I find truly vile. But unless he's actually convicted of a crime, I would be loathe to see him removed from a tenured position, because once he's been removed, it will only be easier to remove someone else for ideological reasons. Once that snowball starts downhill, there's probably no stopping it. Let him return to his faculty position. It is no worse having him on campus than Ayers, Dohrn, Davis, and others. Some of whom have actually been convicted of crimes.
4.15.2008 2:03am
Crimso:
"But only the right uses a pat dodge like "BDS" to avoid engaging virtually any criticism from the left that can be associated, however remotely, with George Bush."

I think you're incorrect. Instead of BDS, consider the VRWC. I don't recall anyone on the left invoking the VRWC when Kucinich opposed Clinton's war crimes in the Balkans. Of course, I don't really view Clinton's actions as deserving of the term "war crimes," but I hope you get my point (that being that "only the right" is not correct).
4.15.2008 2:12am
Uhh:

because once he's been removed, it will only be easier to remove someone else for ideological reasons


You've hit the nail on the head. The Law of Unintended Consequences always pops up right after someone does something dumb like this. Sure, John Yoo isn't well-loved by some people right now. It may even be possible to get him tossed. Once that happens, hey, there's someone else we like a little less than Yoo. Let's get him too.

And of course, that's just one piece of this. Another will be the payback. Even if the dems win the next election, it will only be a matter of time before the repubs make it back into office. Don't think they won't remember this during their exile, and don't think it won't hurt when they can do something about it :)

Then there's my personal favorite: what happens if Yoo is vindicated in his views? What if it makes it all the way to scotus, and they find in his favor, and agree that he hit all the right notes. You'll have the pain of having Yoo become a much bigger figure than he is now, with all the exposure and heroism that entails (don't kid yourself, if it works out like this, he will be played up as being attacked for his patriotism/views/etc, and his attackers will be painted in various nasty ways), as well as the pain of having Yoo win. And now his "theories" are precedent. Ooops!

I'm not fan of Yoo, but he's the kind of low-level guy I prefer to see ignored into irrelevance. His 15 minutes are way up. Taking someone like him to task just because it seems doable can open a pandoras box, the likes of which may be significantly worse than letting him spend the rest of his days teaching a class.
4.15.2008 2:16am
Jim Rhoads (mail):
Even two Justices of the Supreme Court would have given Yamashita more process than the accusing commenters believe is due Yoo.
4.15.2008 2:30am
Crimso:
"Cases will be brought by victims (presumably you can understand that much), and they will work their up through foreign courts and/or international tribunals not beholden to our jingoistic standards."

And let's revisit this gem from upthread. By this logic, shouldn't we be sending our homosexual population to Iran? You know, since their courts aren't "beholden to our jingoistic standards?" And before any of the logically-challenged out there seize upon this to declare that I hate gays, I would very strongly caution that you know nothing about me, and scarcely more about my beliefs.
4.15.2008 2:43am
Truth or Dare:
Is academic freedom a selective foray? If you say "no", ask Norman Finkelstein and DePaul University about that.
4.15.2008 3:11am
LM (mail):
Crimso,

I think you're incorrect. Instead of BDS, consider the VRWC. I don't recall anyone on the left invoking the VRWC when Kucinich opposed Clinton's war crimes in the Balkans. Of course, I don't really view Clinton's actions as deserving of the term "war crimes," but I hope you get my point (that being that "only the right" is not correct).

Dennis Kucinich's objection to Kosovo wasn't remotely comparable to the right wing blowback Bush got on immigration. And if I recall, the Vast Right Wing Conspiracy had actual people, with actual names and addresses, like Scaife and Olin. But why quibble? If you want to say BDS has as much legitimate argumentative value as the Vast Right Wing Conspiracy, I can live with that.
4.15.2008 3:43am
LM (mail):
Truth or Dare,

There's a big difference between being denied tenure (Finkelstein) and being fired with tenure (Yoo).
4.15.2008 3:45am
hey (mail):

J.F. Thomas
Actually, someone who was certainly responsible for much worse crimes than Castro and maybe even Kim Jong Il, Suharto, recently died. His crimes have mostly been forgotten though. Probably because the million or so people he had executed shortly after he took power (not to mention the atrocities in East Timor aided and abetted by Kissinger) were members of the communist party, so they don't count.


You mean they were hopeful genocidalists? When the Communists are protesting the Nazis, you're not supposed to pick sides, you're supposed to pray for an asteroid!

But I do want to thank you for revealing yourself to be no more than a disappointed commissar who hasn't got his chance to eliminate the enemies of the proletariat and then enjoy his just rewards as part of the nomenklatura. Frustrated genocidaires get so pissy.
4.15.2008 3:53am
Tom Shipley:
I am 58 years old. I graduated from high school and took some courses at a community college. I really wrestle with the Bush/Rumsfield/Yoo thing on torture versus being a good, accountable civilized nation.

I respectfully ask of: J. F. Thomas and Henry679 and others, how do you develop and maintain your morals and honorable dealings with an individual or social or national group that would do you harm? or your family harm? or your community if you were responsible for their safety and well being?

It is 1969 and I am in Vietnam and I am facing an enemy 'soldier' (quotes because he was a Viet Cong Fighter). He is 50 feet away, facing me, his rifle has jammed. Am I damned or am I absolved of moral guilt/sin if I kill him? A woman holding a child on her hip draws a hand gun from beneath her blouse and points it at me. Am I damned or am I absolved of moral guilt/sin if I kill her?

I was going to ask the "what if your family were held by bad people...." question; but, that is probably fruitless.

I'm sorry, but having killed other human beings in war/combat - I cannot, out of hand, dismiss torture - "for the good of the greater number of human beings."

I put my question to you in all sincerity, please help me to understand where I am wrong.

TShipley

for the moderators: if this posting is a "radical departure from the topic", I apologize and you may, of course, remove it.
4.15.2008 4:22am
Lonetown (mail):
Can I conclude from the Yoo case that lawyers in general, would rather have our laws set and interpreted in law schools before we the people get a shot at it?

It will be interesting to see the legal reasoning and whether Yoo was an outlier or from a continuous spectrum of thought.

When even defenders couch their defences with "not that I would ever do anything like that", you know a cultural taboo is being crossed.

I was under the impression congress had a shot at this i.e. ununiformed enemy combatants, and punted.

Yoo's interpretation may not comport with the typical ivy leaguer but how is technically? that part is missing.
4.15.2008 7:01am
DWPittelli (mail) (www):
"Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met."

Umh, does the the Dean not know what "contemplate" means? We of course can't object to his privately contemplating such matters, but if he believes what he states in this sentence, shouldn't his public statement have been limited to such a sentence?
4.15.2008 7:32am
Displaced Midwesterner (mail):
DWPittelli,

Saying that someone should not even contemplate something is a pretty common phrase. And that phrase, unlike the word contemplate itself, means that an action can be contemplated, but it should not actually be undertaken. Language, in the hands of real people rather than dictionary writers, is actually a pretty loose thing.
4.15.2008 9:09am
J. F. Thomas (mail):
I'm sorry, but having killed other human beings in war/combat - I cannot, out of hand, dismiss torture - "for the good of the greater number of human beings."

I put my question to you in all sincerity, please help me to understand where I am wrong.


All I have ever advocated is that we abide by the standards set by our military for dealing with detainees and prisoners. Nothing more. There are all kinds of reasons that we don't torture. Read the preamble to the Army Field Manual on Interrogation for a series of reasons why the military is adamantly opposed to torture of anyone regardless of their status.

Yoo, in his memo, ignored U.S. laws, treaties that are fully enforceable in the U.S. and the U.S. Constitution, as well as well-established definitions of torture to justify what the administration intended to do, or already had done.
4.15.2008 11:22am
J. F. Thomas (mail):
I was under the impression congress had a shot at this i.e. ununiformed enemy combatants, and punted

And you would be wrong. Just like his invention of a definition of torture, he claimed that our laws didn't cover these situations when they most clearly did. As mentioned above his memo doesn't mention Youngstown or the Convention Against Torture and Other Cruel Inhuman and Degrading Treatnent or Punishment. How he could write a memo on torture and completely ignore the treaty specifically addressing it is beyond me.
4.15.2008 11:27am
JosephSlater (mail):
astrangerwithcandy:

Of course a president's unpopularity does not excuse every single ridiculous charge against the President. But some on the right continue to use the term "BDS" as if criticism of Bush is generally confined to a small minority of irrational partisans. Whereas in fact, criticism of Bush is widespread and -- at least in the opinion of most --often grounded in the sad reality of his poor performance as president.

Further, folks that use "BDS" seem to think that Bush has inspired more loony attacks than, say, other Presidents. This is demonstrably wrong, as the references above to, e.g., bizarre theories about Bill and/or Hillary killing Vince Foster, etc.,. show.

You are entitled to disagree and think he's been a fine president. But the days when one can generally pooh-pooh criticism of one of THE MOST UNPOPULAR PRESIDENTS IN HISTORY as being generally due to some imagined mental disorder are long, long gone.
4.15.2008 12:48pm
Henry679 (mail):
Tom--

What soldiers do in the field, in the heat of battle, is one thing, although there are certainly limits there as well. But those limits are not (nor should they be) coextensive with the limits put on policymakers, and their hired hacks, which is where Yoo comes.

Most of the blathering here is really beside the point. I have no doubt, in upcoming years, that international courts and tribunals are going to look carefully at US policy in this area. References to how matters were handled 35 or 60 years ago are beside the point. Citizens of nations like Great Britain, Australia, Germany, etc., will be among the aggrieved, and they will seek recourse in forums to which those nations are dedicated participants. And the Yoos of the world will have to govern themselves accordingly.

Soon after the current gang of hoodlums is out the door, it will be open season. These people have not sought legislative immunity domestically for no reason--they know what is coming. That some people are blind to it here tells you nothing about the issue, just the posters in question.
4.15.2008 12:56pm
The Ace (mail):
Love watching the oh so "tolerant" left say just about anything to justify their intolerance.

Good times.

The best response to ideas we strongly disagree with is generally not to blackball their proponents but, as one might put it, to beat them

Modern liberals are incapable of "beating" anyone in a battle of ideas. Which is why they've become fascists.
4.15.2008 1:18pm
The Ace (mail):
I have no doubt, in upcoming years, that international courts and tribunals are going to look carefully at US policy in this area.

And I have no doubt they will make silly, hysterical, nonsensical, and irrelevant pronouncements which you will agree whole heartedly with.
4.15.2008 1:22pm
The Ace (mail):
Time for you leftists to get all atwitter:


Tonight I had an opportunity to ask Barack Obama a question that is on the minds of many Americans, yet rarely rises to the surface in the great ruckus of the 2008 presidential race -- and that is whether an Obama administration would seek to prosecute officials of a former Bush administration on the revelations that they greenlighted torture, or for other potential crimes that took place in the White House.

Obama said that as president he would indeed ask his new Attorney General and his deputies to "immediately review the information that's already there" and determine if an inquiry is warranted -- but he also tread carefully on the issue, in line with his reputation for seeking to bridge the partisan divide. He worried that such a probe could be spun as "a partisan witch hunt." However, he said that equation changes if there was willful criminality, because "nobody is above the law."


If these people weren't so pathetic I'd enjoy mocking them...
4.15.2008 1:45pm
Cecil Turner (mail):
As mentioned above his memo doesn't mention Youngstown or the Convention Against Torture and Other Cruel Inhuman and Degrading Treatnent or Punishment. How he could write a memo on torture and completely ignore the treaty specifically addressing it is beyond me.

By my count, the "CAT" is referenced 95 times in the second half alone.
4.15.2008 3:07pm
LM (mail):
Ace,

If these people weren't so pathetic I'd enjoy mocking them...

Have fun. We're too pathetic to care.
4.15.2008 5:49pm
Bored Lawyer:
Perhaps it's a bit late to ask this (if not, I'll save it till the next John Yoo thread.)

Is there any precedent for holding a lawyer criminally liable solely for the advise he gives, i.e., what he advised was legal turned out to be illegal, even criminal.

And if so, what is the standard here? Mere negligence? Gross negligence? Knowing misrepresentation of the law?

Does it matter if the legal issue is one that is well-settled or one that is debated by scholars and/or the Courts?

I once practiced criminal law; now I don't. I do not ever recall a lawyer being prosecuted merely for giving advise that turned out to be wrong -- even if he was sloppy in doing so. But please educate me.

(Somewhat off-topic. I am reminded of one case which always irked me to no end -- U.S. v. O'Hagan, 521 U.S. 642 (1997). The Supreme Court there extended insider trading as a forms of securities fraud to include the "misappropriation theory."

Traditionally, insiders were limited to those who took confidential information of the company being traded. The misappropriation theory extended it to other companies who might know about the confidential information, even a newspaper like the Wall Street Journal.

Although the SEC had pushed the theory for some time, there was actually a real debate whether the law extended that far. As I recall, there was a severe Circuit split, and the issue even went up once to the Supreme Court which split 4-4 on the issue. Eventually Mr. O'Hagan's conviction was upheld on that theory.

What irked me was -- how could someone be criminally prosecuted for what the courts and commentators were so deeply split as to whether the statute even outlawed or not? Where is the fair notice?

Suppose a lawyer gave someone advise prior to the case that this form of insider trading was legal -- or at least that the issue was debatable and debated. Would the lawyer be criminally liable for such advise?")
4.15.2008 5:52pm
DWPittelli (mail) (www):
Displaced Midwesterner,

I was not a dictionary writer, but have edited nonfiction for the 20 years of my adult life. If "should not contemplate X" is used as an idiom meaning merely "should not X," then it is verbose and pretentious. All the more so (as well as misleading, like using "literally" when you mean "figuratively"), with "even" placed before "contemplate."
4.15.2008 7:02pm
anomdebus (mail):
DWPittelli,
Yeah, 'countenance' seems to me to be a better fit. Perhaps he was thinking of that word?
4.15.2008 7:56pm
Oren:
Bored Lawyer:

Certainly accounting firms have been sanctioned for suggesting tax-shelters to their clients that they knew were illegal. I don't know of any such criminal cases, though.
4.15.2008 9:36pm
elim:
I am sure if he wrote a paper detailing how we deserved 9/11 for our racist imperialist ways and how Gitmo terrorist are the heroes for killing our soldiers, his works would be greeted with a yawn.
4.15.2008 10:07pm
Displaced Midwesterner (mail):
DWPitteli,

Of course the phrase is verbose and pretentious. They don't let just anybody become a dean. You need certain skills. But while the phrase may not be the best or the most succint, there is nothing wrong with it. The right to poor style is an inalienable right of every American.
4.16.2008 1:01am