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.