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Brian Leiter Understands Academic Freedom

And here he demonstrates that Paul Campos does not.

One point that Leiter makes is particularly worth repeating:

There is lots of speculation that maybe what Yoo did (writing the torture memos) constitutes a crime or legal malpractice. Maybe it does, maybe it doesn't: it is unclear based on the available facts (though, on both counts, the available facts strongly suggest a negative answer, especially as to malpractice). It is not for the University of California at Berkeley to investigate crimes or investigate legal malpractice of its faculty, based on speculations that are, quite clearly in most cases, driven by those who find Yoo's views morally odious. Universities have no competence to carry out such investigations . . . and the mere prospect of such investigations would chill academic work on controversial matters almost totally.

If an institution actually charged with investigating crimes or legal malpractice--e.g., a prosecutor, a court, a congressional committee, a bar disciplinary committee--were to conduct a proper investigation and issue a finding of misconduct that would surely then be grounds for the university to open a disciplinary proceeding. But as things stand, there are no such grounds. . . . most of those chattering about "possible" crimes and malpractice soon make it clear that what they really want is for John Yoo to be punished for his ideas and for the fact that some government officials may have acted on those ideas. That's a standard that violates the First Amendment rights of state university faculty and betrays the moral ideal of academic freedom.

Related Posts (on one page):

  1. Yoo and the Politics of International Law Scholarship:
  2. Brian Leiter Understands Academic Freedom
Rod Blaine (mail):
If Yoo gets prosecuted, will Peter Singer be next?

(And don't say "Oh, that's obviously a silly idea", because Singer himself would disallow that as an objection).
4.17.2008 7:52pm
Jacobellis:
Juan Non links to Leiter. I like it, shows you don't hold a grudge. Cool.
4.17.2008 8:33pm
Kathi Smith (mail):
Professor Volokh: You make a common mistake about Yoo's rights to academic freedom--you assume the premise that a professor has a right to teach anything he wants, even if it's wrong. What about the students' rights to learn what is right, and to avoid being taught what is wrong? What about the university's right to dispense lectures (through the professors) that are correct and not misguided. What about society's or the Bar's right to have lawyer-training be done by qualified individuals?
4.17.2008 8:35pm
Roscoe B. Means:
I'm generally inclined to defend Yoo, but I see a lot of troubling First Amendment wrinkles in these facts. E.g., as I understand Garcetti v. Ceballos, expression by a government agent within the scope of his duties as an agent cannot be asserted as "protected" for purposes of making a First Amendment retaliation claim. The government employer, at least, is entitled to take action against the "speaker" employed to "speak" on the employer's behalf. Otherwise, for example, the governor would be forced to tolerate a press secretary who opened every press conference with a statement that the governor is a no-nothing blow-hard. Is the speech nevertheless protected vis-a-vis all government entities other than the one where the speaker is/was employed?

I suppose tenure enters into the picture, but ignoring that oddity of academia, doesn't the University of California have a legitimate interest in knowing that someone it employs as a law professor is competent to teach legal reasoning to students? If the Yoo memo convinces the University that the quality of Yoo's legal reasoning ability is not what they though it was - say, he writes and article that cites In re Yeager as direct authority for the proposition that the 16th Amendment repealed Article VI of the Constitution - do they really have to keep him on the job just because of "academic freedom"?

Also, if the University of California hires an accountant, then learns that he was one who drafted the reports that misrepresented Enron's financial status, but that he truly believed the reporting was appropriate, does the University have to keep him?
4.17.2008 8:45pm
AnonLawStudnet:
Kathi,

According to the Boalt Hall website, Prof. Yoo teaches an Economic ConLaw course and (what appears to be) ConLaw 1. Based on the course description, the areas covered in the latter course are fairly standard. Moreover, at most law schools, these courses are optional. I'm curious just what you think he could teach "wrong," or is John Yoo just too evil to be allowed to converse with an audience of sophisticated adults who seek out his class? As for "right" answers, I would note that Justice Jackson, in the concurrence that Yoo is most criticized for neglecting to mention in his memos, notes that "just what authority goes with the name [Commander-in-Chief] has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends." Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring).
4.17.2008 8:55pm
LM (mail):
Leiter is right. But even if he isn't, the arguments against Yoo have been made better than Campos does. He makes the trademark logical leap of extremists, left and right: He just assumes the mental state required to convict people who have done things he doesn't like.

Leiter thinks various members of the Bush administration are war criminals, and that their worst crimes - crimes for which they should apparently be subjected to Nuremberg-style prosecution - include the systematic torture of helpless prisoners in the name of a phony "war on terror."

Anyone who believes this must also acknowledge that John Yoo's eagerness to make specious legal arguments in support of torture seems to have led directly to lots of people being tortured, some to death.

"[E]agerness to make specious legal arguments"? Assuming Yoo was wrong, wrong, wrong, and his advice led to war crimes, why are we supposed to think his errors weren't made in good faith? Don't lawyers ever make honest mistakes? If Yoo's mistakes were just that, does Campos think he'd still be guilty of war crimes?

I'm guessing Campos rises above these petty details because, like so many ideological extremists, the evilness of his enemies is so obvious to him that he honestly forgets it has to be proved.
4.17.2008 8:55pm
Kathi Smith (mail):
Dear AnonLawStudnet:
What I think he would teach "wrong" has been debated endlessly on many blawgs. Sure, it's subject to debate; the issue in this blog post is whether academic freedom exempts Yoo from the question of whether he was right or wrong. We could take apart the Torture Memo and come up with many shoddy examples of legal reasoning we wouldn't want taught to you studs.
4.17.2008 9:02pm
tvk:
I am generally inclined to agree with Leiter on the result, but the reasoning can easily be taken too far. First, the question of First Amendment and academic freedom are entirely seperate. I seriously doubt that the First Amendment prohibits Berkeley from firing John Yoo, otherwise virtually every professor denied tenure at a state university will begin filing lawsuits. I have comparatively less doubt that Berkeley is bound by the tenure contract it entered with John Yoo. Whether that contract was a good idea is yet another open question.
4.17.2008 9:05pm
wm13:
Kathi Smith, John Ely, the dean of Stanford Law School, "took apart" the Roe v. Wade opinion more effectively than you are likely ever to take apart anything. That doesn't mean that Justice Blackmun's clerks, wherever they are, should be barred from academic positions.

Just because you, Kathi Smith, have anointed yourself the pinnacle of reason, doesn't mean that everyone who disagrees with you is a corrupt, incompetent moron.
4.17.2008 9:10pm
AnonLawStudent:
Kathi,

What you "think he would teach wrong" has indeed been debated endlessly in other blogs, usually with legally questionable reasoning, including by well-known law professors. Leitner's underlying point is that - despite all of the accusations - no one with authority to do so has found Yoo's reasoning wrong. On the other hand, there are plenty of professors who have been definitively and repeatedly rejected for shoddy legal reasoning, but are still allowed to teach. See, e.g., Jack Weinstein or 56 other members of the Columbia Law School faculty. I find it interesting that you assume that law students at top schools mindlessly sop up whatever is said in class; they certainly didn't at my law school, nor at any other decent institution of which I am aware.
4.17.2008 9:25pm
Mikey:

the issue in this blog post is whether academic freedom exempts Yoo from the question of whether he was right or wrong


I don't think that's exactly the case. I think the question is whether or not Yoo's wrongness (legal and/or moral) in the "torture memos" is of sufficient degree to incur censure or dismissal from his position at Berkeley. How much protection does "academic freedom" offer in this situation?

My opinion (admittedly that of a layman, not an attorney) is that Yoo's culpability hinges on something that, as far as I can recall, we don't (and probably won't) know: what were the questions he was answering, and how were they asked?

In other words, if he was asked, "What are the legal limits of coercive interrogation?" and came up with these memos, it's one thing, but if he was told, "Come up with something the Veep and Bush can use to cover their asses" and went along, that's something else altogether.
4.17.2008 9:28pm
Anderson (mail):
Sigh. Leiter's (deliberate) misconstruction of the issue has been slapped down by me &various others at various blogs.

Berkeley has an obligation to its law students, who are being trained in a *vocational* course of study that will require them to act as *fiduciaries* of their clients, to see to it that their professors exhibit the moral and professional character that is consonant with the practice of law.

The accusation against Yoo is that his "torture memos" were intentionally written to mislead their readers into believing a false picture of where the law actually stood, in the furtherance of (at best) Yoo's idiosyncratic theories of executive tyranny, or (at worst) a deliberate conspiracy to violate the Torture Act and the War Crimes Act, with Yoo's memos acting at the "get out of jail free" cards for the torturers and their directors.

If that is what Yoo did -- and there is a colorable case to be made -- then Berkeley can and should keep him out of the classroom, for his utter contempt for minimal professional standards.

"Academic freedom" is NOT EVEN AN ISSUE HERE. If all Yoo had done was to publish his memos as law review articles, we would not even be having this discussion.

As for legal malpractice, Berkeley has an independent duty to its students, and cannot defer that duty to whatever Yoo's bar association (Pennsylvania, I hear) may or may not get around to doing about him. The politics of the case are likely to frustrate any inquiry.

Berkeley's law faculty should convene and consider, with all due process, whether or not what Yoo did is compatible with his position as an instructor of future lawyers.

Professor Leiter appears to believe that law professors and law schools have no such duties to their students -- that so long as one is neither JAILED nor DISBARRED, one self-evidently has the ethical character to teach law to future lawyers.

He could not be more mistaken.
4.17.2008 9:34pm
AnonLawStudent:
And - out of nowhere on mention of "shoddy legal analysis - comes Anderson.
4.17.2008 9:40pm
frankcross (mail):
Anderson, all that sounds to me like you are imposing your ideological views on the professoriate, which is precisely what academic freedom was to protect against.

Of course, you would not be making the decision as to whether the memos were "intentionally written to mislead their readers." But someone would. And your theory allows that someone to impose his ideological views of the world and stamp out differing opinions. That's bad. Leiter doesn't believe that professors and schools have no duties to their students, he embraces a duty that they not censor opinions with which they vigorously disagree.

At some extreme, of course, you are right. But if the issue is contested and some reasonable minds (even conservative ones and even a minority) believe that Yoo is reasonable, he should be safe.

Your talk of "moral and professional character" is the standard used in the past to bar atheists, communists, and perhaps even liberals from teaching. Because the standard is not self-applying, it is applied by people with their own biases and subject to political pressures.
4.17.2008 9:44pm
Oren:
Leiter doesn't believe that professors and schools have no duties to their students, he embraces a duty that they not censor opinions with which they vigorously disagree.
The OLC memo was not "an opinion" (as opposed to writing the same thing in a law journal) and was classified -- that alone strips it of any sort of protection as expressive.
4.17.2008 9:58pm
roger rainey (mail):
First, the journalists drove themselves off the cliff. Then, the scientists whored themselves out. Now, the academicians are preparing their own petards.
4.17.2008 9:59pm
Anderson (mail):
Anderson, all that sounds to me like you are imposing your ideological views on the professoriate, which is precisely what academic freedom was to protect against.

Sorry, no. As I specifically said, Yoo's *ideas* are fine -- if he'd published them in a law journal. Alan Dershowitz is a law professor who's advocated torture, and it would be improper to fire *him*.

The point here is that Yoo's memos were not "reasonable." No one with the slightest grasp of the law could think otherwise. That is why people are harping on the Youngstown case, for instance. Others have noted his failure to discuss international law, which is certainly relevant where statutes like the Torture Act were implemented in conformity to treaty obligations.

If you ask me, your lawyer, to advise you on course of action X, it's my duty to tell you the pros and the cons; I should work to make a good case for X, while at the same time giving you the straight dope on whether X is likely to be found legal or not.

If I have a pet notion that X really should be legal, even though the great weight of opinion and law is to the contrary, and I leave out all the contrary authority, then you, my client, have been badly advised - and may go off and do X, thinking "well, my lawyer said it's okay."

Personally, I don't think that's what happened; Yoo is too smart for that. I suspect that Yoo was writing his memo to create a "lawyerly"-looking OLC memo that torturers could invoke to protect themselves from prosecution.

But either way, Yoo failed to do what he was obliged as a lawyer to do for his client. Failed spectacularly, in fact. He has not repented in the slightest. He is a walking, talking example of smug professional dereliction.

Your talk of "moral and professional character" is the standard used in the past to bar atheists, communists, and perhaps even liberals from teaching.

That's a valid concern, but I think the case I've make goes rather beyond "atheists can't be moral" or "commies can't be loyal." Whether you know it or not, professions are supposed to have standards. A lawyer is supposed to put his client's interests above his own.

Is it really so unacceptable that Berkeley would have its law faculty consider Yoo's case and evaluate his professional conduct in view of his educational responsibilities? Is that really, truly off the table?

In that case, the university owes no meaningful duty to its students. Learners, beware.
4.17.2008 10:03pm
Anderson (mail):
ALS: "And - out of nowhere on mention of "shoddy legal analysis - comes Anderson."

Bite me.
4.17.2008 10:04pm
Anderson (mail):
People who are interested in Yoo's failures would do well to follow human-rights attorney Dilan Esper's refutations of Bart DePalma on this Balkinization thread. For instance:

The issue is "if my client does this, what is his exposure?". That includes the possibility that the courts may reject your arguments. It also includes potential international criminal liability, as some other posters have noted.

If you [Bart] write legal memos the way you claim to, you are violating your professional obligations to your clients and potentially committing malpractice. You are required to discuss doctrines that you might not wish to apply, as long as there is some probability that a court may apply them. And you must couch your analysis in terms of risk, telling the client what the possible outcomes are.

Yoo's memorandum contains no risk analysis whatsoever, and doesn't cite to authorities and reference arguments contrary to the position he desires to be the law. It is a clear breach of his obligations to his clients.


THAT is what the issue is -- not academic freedom.
4.17.2008 10:08pm
frankcross (mail):
Anderson, you proved my point when you said Yoo's memos were not reasonable and "no one with the slightest grasp of the law could think otherwise." You are obviously closed minded and imposing your ideological vision as truth.

I personally despise the torture memos but have not dug into them carefully enough to analyze all the materials he cited and read them and analyze whether they support his point. And I'm pretty sure you haven't either. And it would be pretty easy for a closed minded ideologue to dissect one of Larry Tribe's briefs to the Court and find it legally wanting. I know liberal law professors who push arguments in court that are well beyond the current state of the law, and I actually admire them for it, I don't want to censure them.

But I don't think that Harvard should have its law faculty consider Tribe's case and evaluate his professional conduct. The threat of being "evaluated" for going off the ideological reservation is bad enough. And of course you entirely dodged my main issue, which is that the people doing the evaluating cannot be presumed accurate or trustworthy.
4.17.2008 10:11pm
Anderson (mail):
Anderson, you proved my point when you said Yoo's memos were not reasonable and "no one with the slightest grasp of the law could think otherwise." You are obviously closed minded and imposing your ideological vision as truth.

Frank, you're kidding me, right?

You're not one of those people who think that biology departments are "closed-minded" for not hiring creationists, are you?

Law is fuzzier than biology, let alone than math, and it's pretty difficult to be SOOOOO wrong that your argument simply reeks of bad faith. That's one reason that so few lawsuits are deemed frivolous by the courts.

But Yoo managed -- go check out Dilan Esper in that thread that I linked. And common tho the Youngstown issue be, that doesn't make it any less valid.

Yoo argued that the Congressional statutes have no power to limit the President's commander-in-chief powers in wartime. Harry Truman tried out that argument in Youngstown and went down in flames.

Now, Yoo would be welcome to distinguish the case, to argue why it might be overruled, etc., etc. But he was NOT free to ignore the case and to keep his client in the dark about authority that, as a matter of fact, the courts consider very much on point -- as recent Supreme Court decisions have reaffirmed.
4.17.2008 10:18pm
frankcross (mail):
Anderson, it's not good to be closed minded, but its worse to be closed minded and not be aware that you are closed minded.

I don't see you claiming that you have carefully analyzed the sources for the Yoo memorandum, you seem to be relying on bloggers. Not a very good standard for tenure revocation. And I don't see you denying that liberal law professors make similar arguments (ignoring contrary precedents) when pushing an agenda. And I do see you ducking the key issue.

Maybe I'm giving you too much credit, but it wasn't that many decades ago when conservative state legislatures pressured university presidents into firing faculty who were liberal or otherwise inconvenient to them.
4.17.2008 10:27pm
frankcross (mail):
Anderson, it's not good to be closed minded, but its worse to be closed minded and not be aware that you are closed minded.

I don't see you claiming that you have carefully analyzed the sources for the Yoo memorandum, you seem to be relying on bloggers. Not a very good standard for tenure revocation. And I don't see you denying that liberal law professors make similar arguments (ignoring contrary precedents) when pushing an agenda. I've seen Supreme Court justices do just that. And I do see you ducking the key issue.

Maybe I'm giving you too much credit, but it wasn't that many decades ago when conservative state legislatures pressured university presidents into firing faculty who were liberal or otherwise inconvenient to them.
4.17.2008 10:29pm
Anderson (mail):
I don't see you claiming that you have carefully analyzed the sources for the Yoo memorandum

Frank, you're not listening to me; the issue is not Yoo's sources. The issue is not what he puts in; it's what he leaves out.

I've read the previous memo and the current one; I've looked up a few of the cases where I wasn't clear whether he had a valid point or not; I have examined not just "bloggers" but law professors and lawyers who blog, and who have set out their arguments in some detail; I have examined articles written about Yoo by the same sort of authorities. Given that I also have a family and a day job, I think that's pretty good.

My point here is not to prove that Yoo should have his tenure revoked. My point here is to argue that Berkeley should conduct proceedings on whether his tenure should be revoked.

And if you're arguing that, no, Berkeley should not even consider whether to conduct such proceedings ... then I don't think I'm really the closed-minded one here, now am I?
4.17.2008 10:35pm
Anderson (mail):
For an example of Yoo's style of argument, see Sunstein's review of one of Yoo's books:

Yoo has offered an inventive and provocative set of arguments about fundamental questions, and he presents his arguments with unmistakable determination and all the skill of a good lawyer. And that is the problem. Much of this cheerfully one-sided book reads like a lawyer's brief, trying to justify a particular set of pre-determined conclusions. Counterarguments are rarely given in their strongest form. Sometimes they are not given at all. On some issues, Yoo writes as if every imaginable source fully supported his conclusion -- as if the analysis were ridiculously simple, and as if those who disagree with him were not merely wrong in their conclusion, but wrong on every detail. * * *

It is clear that a great deal would follow if it were agreed that the president can make war on his own. So is Yoo right to make such a claim? Amazingly, he says close to nothing about the mountainous counter-evidence. Let us consider only some of it.

James Madison wrote that the Constitution has, "with studied care, vested the question of war in the Legisl[ature]." Alexander Hamilton said that the legislature "can alone actually transfer the nation from a state of peace to a state of hostility." John Marshall declared that "the whole powers of war" are constitutionally "vested in Congress." Thomas Jefferson wrote that under the Constitution, "one effectual check to the Dog of war" was "transferring the power of letting him loose from the Executive to the Legislative body." In the Pennsylvania Ratifying Convention, James Wilson noted that under the Constitution, the decision whether to go to war "will not be in the power of a single man, or a single body of men." In South Carolina, Pierce Butler, an active participant in the original debates, explicitly said that the Constitution denied the power of "making war or peace" to the president, because it was "objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction."

Speaking of monarchs: Yoo emphasizes Blackstone and British practice, arguing that the United States closely followed the British model, in which the executive -- the king! -- was able to make war on his own. But not so fast. There is specific evidence that the British model was rejected. Just three years after ratification Wilson wrote, with unambiguous disapproval, that "in England, the king has the sole prerogative of making war." Wilson contrasted the United States, where the power "of making war and peace" is in the legislature. Early presidents spoke in similar terms. Facing attacks from Indian tribes along the western frontier, George Washington, whose views on presidential power over war deserve special respect, observed: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." As president, both Thomas Jefferson and John Adams expressed similar views. In his influential Commentaries, written in 1826, James Kent wrote that "war cannot lawfully be commenced on the part of the United States, without an act of Congress."

With the exception only of James Wilson's, Yoo does not explore or even mention any of these statements -- a puzzling omission, or worse. While Blackstone and English practice do seem to be on Yoo's side, Blackstone was of course speaking for the distinctive traditions of the British monarchy, and the practices of his country are not a reliable guide to the legal norms of the United States. With respect to Grotius and Vattel, Yoo's reading similarly raises many questions. Grotius wrote that "to exercise Hostility" without a declaration "is not done like a Christian, nor allowable by the Law of Nations." Grotius and Vattel are usually taken to support, not to undermine, the view that a declaration is a legal prerequisite for an offensive war.


Now, IMHO, that makes Yoo's book poor scholarship; a scholar, unlike an advocate, is not supposed to "eliminate the negative."

But I don't think that would rise to the level of *revoking* tenure. Yoo's book is just that, a book.

What's terrible about Yoo professionally, and what raises doubts about his fitness to teach law, is that when he was supposed to be a lawyer counselling his clients, he showed the same qualities that Sunstein criticizes above.

As it is, the despicable Military Commissions Act's provisions will likely provide retroactive immunity for everyone who took Yoo at his word (or pretended to) and committed abominable, illegal acts in reliance (or pretend reliance) thereon. Damn lucky for Yoo.

Frankly, I am very sorry to see a blog with so many holders of J.D. degrees posting on it, none of whom appears to have the least problem with how Yoo counselled his clients. (Stuart Benjamin being the honorable exception; if there are others, please remind me.)
4.17.2008 10:41pm
Anderson (mail):
Off to the real, non-internet world ... carry on, ladies and gentlemen.
4.17.2008 10:52pm
David M. Nieporent (www):
Anderson, many law professors engage in legal practice. I know that on this blog, Eugene Volokh and Orin Kerr, at least, do, because they've blogged about it. I haven't heard you suggest that their schools "consider" whether they've ever committed legal malpractice. One might think there might be a political reason for that. Which is precisely the point.
4.17.2008 10:52pm
Tony Tutins (mail):
I fear Leiter has engaged in a bit of goalpost-moving. The standard to revoke tenure of a law professor should not be commission of a crime or legal malpractice but serious professional misconduct or gross incompetence -- both misconduct and incompetence are things that universities are in a position to assess. I assume even Leiter would grant a university the right to oust a biology professor who suddenly embraced Lysenkoism, or an economics professor who taught the economic theories of Rev. Ike ("Money power is God power and God power is money power.") Further, while law professors do not have to be barred, to be as law teachers they should meet the ethical standards expected of lawyers, relevant here they must exercise independent professional judgment.
4.17.2008 11:00pm
ReaderY:
If the Supreme Court were to reverse Roe v. Wade, could writing a brief in favcr of abortion be made a crime or defined as legal malpractice?

What's the difference?
4.17.2008 11:05pm
Tony Tutins (mail):
Reader Y: If a Criminal Procedure professor taught his future DA students that the fruit of the poison tree doctrine from Wong Sun no longer applied, that would be professional incompetence for a law teacher.
4.17.2008 11:08pm
ReaderY:
The more analogous question would be to ask if writing a brief in favor of abortion could be made a crime or defined as legal malpractice with Roe v. Wade still law.

Given that both Eisentrager and Verdugo-Irquidez with their holding that the Due Process Clause lacks "extraterritorial application" are still on the books, proponents of torture are as free to argue that the idea that an extraterritorial is a "person" is just as much a mere religious belief, and just as inappropriate a basis for secular governmental policy, as the idea that a prenatal is a "person" in the face of Court rulings that the Due Process Clause lacks "prenatal application."

Are people who support prosecuting Yoo anything more than religious fundamentalists bent on overthrowing our secular government and imposing their own, theocratically hyperuniversalist notions of personhood? It is, after all, the capacity to participate in our society, and not any god or any set of moral beliefs, which is what distinguishes a person from a cell mass. Extraterritoriality and enemy combatant status in particular are as much disabilities to such participation as prenatality, so on purely secular grounds both decisions would equally reasonable.

Charles Schumer said that Supreme Court decisions should be judged by whether they increase freedom for Americans. It can't be denied that opposing torture of foreigners decreases American's freedom, it no more increases it then opposing abortion. So by the Schumer Test opposing torture is illiberal, unjust, and just plain unAmerican.
4.17.2008 11:17pm
advisory opinion:
Good. I've attacked Leiter for being an academic bully before - especially on the untenured; but his jealous defence of the tenured is remarkably consistent, I'll give him that.
4.17.2008 11:22pm
c.gray (mail):

Frankly, I am very sorry to see a blog with so many holders of J.D. degrees posting on it, none of whom appears to have the least problem with how Yoo counselled his clients.


I'm sorry to read yet another pompous rant on the subject of Yoo from a poster who represents himself as an expert on the standards of care one must exercise when practicing law, but who appears to be completely unaware of many of the purposes for which legal memorandum and opinion letters are actually written in the real world, and the serious practical problems with judging the quality of the advice provided to a client by the contents of one such document, standing alone, in the absence of any other knowledge about the lawyer's direct communications with his client regarding the relevant issues or the purposes to which the document should be put.

I have to assume the ranter is ignorant, foolish, dishonest, or some combination of the three. He certainly shouldn't be allowed anywhere near impressionable law students, who are certain to learn a style of argument which will be laughed out of court by any competent jurist.
4.17.2008 11:28pm
Oren:
... push arguments in court that are well beyond the current state of the law, and I actually admire them for it, I don't want to censure them.
Once again, the position of the OLC is confused with that of a lawyer writing a brief. They are not the same, stop comparing them.
4.17.2008 11:29pm
AnonLawStudent:
Tony,

But that is not the case here. As things currently stand, Yoo is an exemplary case for the need to protect faculty from idealogical retribution. There has been a bandwagon piling-on of opposition to the Yoo memos, but VERY little knowledgable critique. I certainly don't consider myself well-versed, but obvious errors that I have seen:

(1) Assuming that Yoo was asked - by one of the world's most sophisticated clients - to address issues A through Y when he may have only been asked to address issue Z.
(2) Assuming that the resulting memo to that client should include policy discussions, despite the fact his client has literally hundreds of advisors dedicated to policy.
(3) Failing to recognize that Yoo's analysis focuses on a statutory definition of torture, rather than the colloquial definition.
(4) Citing raw treaty text and foreign opinions without analyzing the impact of U.S. reservations.
(5) Failing to acknowledge the impact of Hamdan on precedent re: the definition of war crimes.
(6) Assuming that the President (in his official capacity) can be bound by statute in the same manner as a common citizen, i.e., failing to acknowledge the SoP issue.

The nearly-universal tone of the discussion in the legal blawgospher is that (1) waterboarding is colloquially torture, (2) Professor X said the law says so, therefore (3) Yoo is guilty. I'm not saying that Yoo's memos are correct - I honestly don't know - but I'm reasonably certain that very few people have undertaken the research required to answer that question. Stripping a man of his livelihood and reputation based the popular appeal of the flimsy reasoning seen on the internet can only be characterized as yet another "high tech lynching."
4.17.2008 11:30pm
frankcross (mail):
Anderson, that's quite ironic, because the biggest problem with your comments is what you have left out, e.g.,

any response to my suggestion that liberal law professors have made similar omissions and

any response to the fact that the decision is made by people who have their own biases.

Your inability to come to grips with the most basic arguments is far more embarrassing than Yoo's elision of Youngstown.
4.17.2008 11:44pm
rxlawstudent:
Garcetti does not apply to the academic context.
4.17.2008 11:48pm
Tony Tutins (mail):
ALS -- Good point that the anti-Yoo analysis needs to be tightened up. But the Bush administration did create the term "enemy combatant," apparently for the purpose of putting people it didn't like beyond the reach of the Geneva Conventions. And it did change the US's long-standing definition of torture. As far as I know, Professor Yoo was not and is not a scholar in international humanitarian law. But he did help manage to cobble up some new legal theories in that area that gave the Bush administration protective cover to go about as it had wanted to.

Basically, the whole thing stinks, and Yoo's part in it should be investigated further.
4.17.2008 11:50pm
Oren:
ReaderY, I have no problem with any such theories in any vein about any legal question. Writing them in a legal brief or a law review paper is well within the scope of academic freedom. Schumer can expound any one a million ridiculous Constitutional theories and that would be fine (although they are, for the most part, wrong). The OLC, however, stands apart from these examples in that it has a much larger responsibility.

(1) Assuming that Yoo was asked - by one of the world's most sophisticated clients - to address issues A through Y when he may have only been asked to address issue Z.
If A-Y have a material impact on Z (e.g. Youngstown, in the instant case) then he had an affirmative duty to mention them and present the contrary argument in full force.
(2) Assuming that the resulting memo to that client should include policy discussions, despite the fact his client has literally hundreds of advisors dedicated to policy.
Agreed. Yoo's memo should have focused exclusively on the law.
(3) Failing to recognize that Yoo's analysis focuses on a statutory definition of torture, rather than the colloquial definition.
Insofar as he twisted the statute to mean what he wanted it to mean instead of the plain meaning of the words therein.
(4) Citing raw treaty text and foreign opinions without analyzing the impact of U.S. reservations.
None of those reservations allow the US to arbitrarily redefine basic words (as far as I've read, correct me if I'm wrong)
(5) Failing to acknowledge the impact of Hamdan on precedent re: the definition of war crimes.
The notion that Hamdan obliterated everything before it is something of a red herring, since much of the alleged torture predates Hamdan.
(6) Assuming that the President (in his official capacity) can be bound by statute in the same manner as a common citizen, i.e., failing to acknowledge the SoP issue.
The President loses, not gains, power to act independently when he puts on the CiC hat. There is no separation of powers notion implicated except in the fantasy of those that imagine that the Constitution didn't really mean to delegate the authority to make rules regarding prisoners to Congress. Unfortunately (at least for those folks), it did:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
4.17.2008 11:50pm
Tony Tutins (mail):
any response to my suggestion that liberal law professors have made similar omissions

Lay it on us. I'm an equal-opportunity muckraker.
4.17.2008 11:51pm
rxlawstudent:
here is the relevant portion of Garcetti:" Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
4.17.2008 11:53pm
Oren:
any response to my suggestion that liberal law professors have made similar omissions
Again, arguments made in court on behalf of a client, law review articles and general pontification do not rise to the level an OLC memo and are not held to the same standard. Liberal professors (and Conservative professors and Libertarian professors) often spout all sorts of ridiculous things that are not meant to be taken as definitive statements on the state of the law.
4.17.2008 11:53pm
Benjamin Davis (mail):
We should keep pushing to indict Yoo and the others. We should do this and have a jury say he and the others are guilty. Then all these people who are willing to be apologists for this are free to go visit the persons in prison.

HELLO! Did anyone here see the pictures from Abu Ghraib? Did anyone here see Charles Graner's lawyer saying that the Yoo memo should have been provided during the discovery for his Abu Ghraib trial? HELLO! Did anyone here see the DOD spokesperson's statement that 22 out of 24 prosecutions of persons sent from the CIA and the DOD were closed in part because of the existence of the Yoo memo? HELLO! Did anyone here notice that persons at Abu Ghraib were convicted under the UCMJ although the Yoo memo said that should not happen? What happened? The pictures came out and pressure came to bear to enforce the law. Yoo's rationalizations came to cropper on the public will to have the laws applied that forced the administrations hand for the lower level persons. All we are saying, is let's have this public pressure move up the ranks to prosecute the folks at the top too like Yoo and others who put this conspiracy to torture together (and break lots of other laws).

I have no idea whether Leiter is a bully or not - what I do know is that he is wrong - Yoo and others committed crimes and should be indicted, prosecuted, and convicted.

Best,
Ben
4.18.2008 12:13am
Oren:
Ben, relax. I would actually prefer that Yoo be granted full amnesty as a practical matter, since it would make it a lot easier for the next President to make a clean break with this administration and create a new system, whole-cloth.
4.18.2008 12:14am
Eilers Wilson (mail):
Campos is a clown. The last thing the academic world needs is for academics to be legally responsible for their dumb theories. Even some faculty at Colorado might be at risk for their theories of unprecedented Executive power if Campos's line of argument is accepted. Perhaps Campos will lose his untenured position at the Rocky Mountain News if he keeps this up.
4.18.2008 12:20am
Benjamin Davis (mail):
"Did anyone here see the DOD spokesperson's statement that.."

Meant to say DOJ.

Oren, I am relaxed - just tired of the apologia for torture from academics and non-academics - good Americans like the good Germans. I have analyzed Yoo's nonsense in other places (on Jurist).

For people who did the crime, they need to do the time.

Best,
Ben
4.18.2008 12:25am
David M. Nieporent (www):
I have no idea whether Leiter is a bully or not - what I do know is that he is wrong - Yoo and others committed crimes and should be indicted, prosecuted, and convicted.
Leiter has never said otherwise. What he has said is that until this happens, by people whose professional competence involves prosecuting people for crimes, Yoo's job shouldn't be threatened.
4.18.2008 12:42am
MarkField (mail):
I'm not sure which is worse here, the moral blindness or the legal incompetence. Yoo's defenders are embarrassing themselves, especially in their attacks on Anderson.

Let's go back to the beginning and start with Berkeley's standards. I linked to them a couple of times at Balkinization and I encourage everyone to read them since Leiter and Dean Edley have both mis-stated them. The standards say two relevant things:

1. The examples of misconduct which justify termination are just examples. They are NOT intended to be exclusive. Thus, conviction of a crime is NOT a pre-condition for Yoo's termination. I'll leave it to readers to decide if those who emphasize conviction are being honest or not.

2. Berkeley has no standard of "legal malpractice", as Leiter claims. The standard is "intellectual honesty".

Now let's see how these might apply to Yoo. I'll start with the intellectual honesty prong, because it's related to the other. Numerous sources have pointed out flaws in Yoo's reasoning. But they're more than flaws; they're so extreme that, prima facie, they call into question his intellectual honesty. The failure to discuss Youngstown in the context of an argument about the President's Art. II powers is one obvious one. There are others; Dilan Esper mentioned some in the Balkinization threads. These omissions certainly establish probable cause for Berkeley to investigate the issue of Yoo's intellectual honesty in writing the memos.

The other issue is whether Yoo deliberately wrote his memos as part of an agreement to shield executive branch members from liablity for committing heinous crimes. If you believe Yoo violated standards of intellectual honesty in his memos, then it's not much of a leap to infer that he did so precisely for that wrongful purpose. Alternatively, you might find (after a full exploration of the facts) that Yoo was conveniently stupid, and that he was or was not part of some conspiracy.

Given these circumstances, the question is NOT whether Berkeley should fire Yoo on the spot. The question is whether it should investigate these facts.

It seems pretty hard to argue that it should not. The omissions from his legal analysis are egregious; he wrote Potemkin Village memos: they look legal, they give the impression of being legal, but the analysis is so pathetically deficient that a first year lawyer would be fired if s/he wrote them. Perhaps Berkeley knows to expect no better from Yoo, but since it gave him tenure as a professor of Constitutional Law, we might reasonably think that he's not actually that stupid.

Some have made the argument that Berkeley is ill-equipped to determine if a crime was committed. That may be so, but it may not be either. It's kind of hard to say when it hasn't even initiated an investigation. Suffice it to say that nobody has much trouble deciding that OJ Simpson committed a crime, though he was never convicted. Hell, lots of commenters here have no problem deciding that Bill Clinton committed one. I take it that nobody here would have any problem terminating OJ, and that many would happily terminate Clinton.

Moreover, for Berkeley to wait for conviction would be peculiarly inappropriate in the case of crimes by government officials. They are shielded from criminal prosecution precisely because of their position in the government. That's why at Nuremberg the courts refused to recognize any claims that the defendants acted according to law. It's why torture is a jus cogens crime (meaning every nation in the whole world has jurisdiction over it, regardless of where it was committed).

The attempted analogies to free speech cases are, to coin a phrase, not even wrong. Yoo's conduct potentially falls into one of two categories: a form of fraud (violation of intellectual honesty), or as a "speech act" (think of fraud in the inception of a contract or an agreement to commit a crime). Neither is protected by the First Amendment, and it isn't a close call.

Berkeley, of course, doesn't have to investigate even criminal misconduct by its faculty. It's free, so far as I know, to permit rapists or slaveholders or child molestors or the oven operators from Auschwitz on its faculty (and yes, torture is comparable to those). But if society is going to maintain standards of any kind, it surely can draw the line at conduct like this; failure to do so is little more than nihilism.

It used to be that one could use extreme examples like these as a barrier to moral degradation. (See hilzoy.) No matter how bad it got, we'd never even consider such things. It's a sign of how far the Bush Administration has debased our moral discourse that we even have to discuss such horrors.
4.18.2008 1:30am
advisory opinion:
"But the Bush administration did create the term "enemy combatant"

LOL. No.

Ex parte Quirin (1942): "The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war".
4.18.2008 1:38am
Tom Shipley:
Ladies and Gentlemen of the Bar and Esteemed Professors' of Law:

This is only my third post here. I am not a lawyer, only a (advancing) middle-age working stiff. I am also a veteran of combat in Vietnam, where the enemy was primarily comprised of "irregular combatants - no identifying marks".

I read here, comments, made by persons who obviously have a mild to moderate disdain for President Bush (hate?). Many have condemned the President's construction/invocation of the "enemy combatant".

May I submit, my Esteemed Betters, two points for your consideration?:

1. Someone with a gun or a bomb who is NOT a member of the unformed military of a State Actor, and said State Actor being in a state-of-war with me, who kills me with said gun or bomb - is a MURDERER - bereft of any protection of the Geneva Convention or MORAL code/mores of any Nation.

2. Until you (posters and hosts of this blog) have to personally KILL another person in "civilian clothes" in an "undeclared war", I suggest that you get down off of your high horse and thank whatever G/god you acknowledge: that men like George W. Bush, President of the United States of America, have the balls to do the hard things to protect you form the people in civilian clothes.

TShipley /sarc and honest assessment off.
4.18.2008 1:39am
c.gray (mail):
From Oren:


If A-Y have a material impact on Z (e.g. Youngstown, in the instant case) then he had an affirmative duty to mention them and present the contrary argument in full force.


Like Anderson and the rest of us, you have no real idea exactly who asked Yoo to prepare the memo, why they asked, what representations were made to Yoo, what questions Yoo asked before preparing the memo, or what additional information he communicated besides the contents of this specific memo. Absent access to any of that information, you have no real idea what his "affirmative duties" were, let alone whether he met them.

Like most of the other blowhards pontificating about Yoo, you don't even seem to be the slightest bit aware that this is an issue, which makes it hard to take any of your arguments seriously, and fairly easy for those so inclined to just dismiss them out of hand.

And the constant repetition of "Youngstown" by some is just a sign that some are, for lack of a better word, a little slow. If it has honestly never occurred to someone that Youngstown is one of the most heavily discussed and dissected topics the OLC has considered in the context of the Presidents war making powers over the years, and that discussion of the case and its offspring in one particular memo dealing with one fairly narrow topic might be viewed by both client and attorney as redundant, that person is too dimwitted to be giving anyone legal advice.
4.18.2008 1:48am
Mahan Atma (mail):
"Until you (posters and hosts of this blog) have to personally KILL another person in "civilian clothes" in an "undeclared war", I suggest that you get down off of your high horse and thank whatever G/god you acknowledge: that men like George W. Bush, President of the United States of America, have the balls to do the hard things to protect you form the people in civilian clothes."


Shorter Tom Shipley:

"You can't handle the truth!"
4.18.2008 1:55am
Mahan Atma (mail):
"If it has honestly never occurred to someone that Youngstown is one of the most heavily discussed and dissected topics the OLC has considered in the context of the Presidents war making powers over the years, and that discussion of the case and its offspring in one particular memo dealing with one fairly narrow topic might be viewed by both client and attorney as redundant, that person is too dimwitted to be giving anyone legal advice."



"Viewed as redundant"? You can't be serious.
4.18.2008 1:58am
ratel (mail):
I hate to drop a little reality into a perfectly good rant but even MURDERERs in this country are protected by not one but several different Constitutional Amendments.
4.18.2008 2:08am
Tom Shipley:
Mahan:

Forgive my post-midnight dimwittedness, but?

Am I the 'one' who cannot handle the 'truth', or
are the others here-about - who are the one's lacking
receptiveness?

TS
4.18.2008 2:11am
Tom Shipley:
Oh, come on, ratel:

You take a perfectly good rant out of context and place it coyly under the umbrella of the Constitution. Forgive me, but you make-me-think-less-of-you with your sly, slippery 'arguments'.

TS

p.s. take THAT
4.18.2008 2:17am
c.gray (mail):

"Viewed as redundant"? You can't be serious.


You must be dimwitted.

Unless of course, you can actually make out a coherent case for why I ought to believe that the individuals for whom the memo was prepared were unaware of Youngstown and its implications.

Then I'll be happy to admit I'm wrong.
4.18.2008 2:33am
Californio (mail):
I confess I have never seen a Judge, Federal or otherwise, impressed by the proffer of evidence that is supported by the legal authority of "HELLO, everyone knows that is WRONG and IMMORAL!"

Where, pray tell, do such legal argument get made - outside of an ecclesiastical court? And if so, please provide the canon law references and/or bible references to support your position. [with proper reference to cf authority in the Qu'ran, I-Ching, etc.] "Everyone knows" is political code - not legal analysis.

Abu-Grahib! Emmett Till! Lockner! er, um, Busing! Municipal Bonds! [insert name of shocking if irrevelant event here!]!
4.18.2008 3:13am
Californio (mail):
I have a right, enshrined in the U.S. Constitution, to tell everyone in the world that America has many flaws and that we seek to impose our views on the world through cultural imperialism. If any foreigners disagree I'll demand they submit to the U.S. Constitution, to promote international brotherhood - of course. And if they try to kill me anywhere in the world - why that is 'agin our laws - which GOD deigned to be the best anywhere - so we have Constitutional provisions to handle such matters - again, even foreign actors acting on foreign shores. Remember, the U.S. Constitution applies to everyone, everywhere on earth.
4.18.2008 3:29am
Oren:
c.gray, there's really no point in discussing this issues, since either I'm dimwitted or you are incorrect about my faculties. Either way, it's a dead end, especially if you don't believe that Youngstown is the starting place for all inquiries into the President's power to conduct a war in defiance of Congressional authority.
4.18.2008 3:36am
LM (mail):
Oren, Anderson, Mark Field,

Assuming, arguendo, that Boalt should remove tenured professors for intellectual dishonesty or anything else not determined by a criminal justice or bar disciplinary proceeding, how is that supposed to happen? What has to be established by whom under what standard of proof through what type of process for which kind of investigation performed by whom to begin? And this would be spelled out where?
4.18.2008 7:08am
Mahan Atma (mail):
You must be dimwitted.

Unless of course, you can actually make out a coherent case for why I ought to believe that the individuals for whom the memo was prepared were unaware of Youngstown and its implications.


Well I don't know why it's my burden to disprove your ridiculous premise, but the relevant question for the writer of the memo is how does a case like Youngstown apply to the facts at hand. Hardly a "redundant" situation there.

I'd guess the people for whom the memo was prepared had also heard of the Eighth Amendment. In fact it's a lot more likely that they did. By your logic, it never should have been discussed; it should have been "viewed as redundant"!
4.18.2008 8:29am
anon252 (mail):
It would be nice if all the commenters who are invoking Youngstown would acknowledge that Youngstown had no majority opinion, making it rather dubious as controlling precedent for anything. By acclamation, the most influential opinion was Justice Jackson's, but an opinion of one Justice over 50 years ago an executive power in a completely different context (the seizure of private U.S. property) can reasonably not be thought controlling by John Yoo or anyone else.
4.18.2008 9:19am
Anderson (mail):
c. gray: Like Anderson and the rest of us, you have no real idea exactly who asked Yoo to prepare the memo

My first guess would be the person that it's addressed to:

Memorandum for William J. Haynes IT,
General Counsel of the Department of Defense

Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States

You have asked our Office to examine the legal standards governing military interrogations of alien unlawful combatants held outside the United States.


What do you think, c. gray? Is that a pretty good hypothesis I've come up there?

Or am I so blinded by my moonbattery (and "shoddy legal reasoning") that I'm reading too much into Yoo's words?

Do reply, please; I'm all ears.
4.18.2008 10:39am
Anderson (mail):
It would be nice if all the commenters who are invoking Youngstown would acknowledge that Youngstown had no majority opinion, making it rather dubious as controlling precedent for anything.

Fine. How about if commenters like you try to display some familiarity with the citations to Youngstown by the Supreme Court, most recently IIRC in Medellin.

As for Jackson's concurrence, it "provides the accepted framework for evaluating executive action in this area." That's from the noted liberal Johnny "Umpire" Roberts.

Too bad he doesn't read more, uh, "conservative" blogs, so he would know what a terrible mistake he was making by relying on such a dubious opinion, one that's so marginal that it's reprinted in every con law textbook in the country.
4.18.2008 10:44am
titus32:
Sigh. Leiter's (deliberate) misconstruction of the issue has been slapped down by me &various others at various blogs.

Ah, the heavy burdens of an ignored genius. Not to mention psychic--able to sense Leiter's intent to mislead.
4.18.2008 10:49am
Anderson (mail):
But the Bush administration did create the term "enemy combatant,"

Tony, I think it's "unlawful combatant" that you have in mind. Cf. Wikipedia:

The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII). However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties which deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006 codified the legal definition of this term, and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant.

The article's a bit confusing to me -- it seems to be in the throes of cross-editing by political opponents -- but the ICRC has been clear as day that there are no "lawless exceptions" created by an individual's conduct.

A civilian who takes up arms (a franc-tireur, e.g.) can be prosecuted in normal courts or tribunals, but not in kangaroo courts created expressly for the purpose.
4.18.2008 10:55am
Anderson (mail):
Not to mention psychic--able to sense Leiter's intent to mislead.

Sweetheart, I'm pretty sure by now that it's deliberate, because the point has been made on blog threads where Leiter has commented and thus, presumably, read.

But if you'd prefer "with willful ignorance," then fine. I'm not terribly interested in arraigning Prof. Leiter, who is a very fine Nietzsche scholar, if a bit left of me politically.

I'm just weary of him repeating his "it's A or B" shtick when a great many people have pointed out to him that it's actually C.
4.18.2008 11:00am
titus32:
Sweetheart

I'm blushing.
4.18.2008 11:03am
c.gray (mail):

What do you think, c. gray? Is that a pretty good hypothesis I've come up there?


Of course. Excuse me. I stand corrected.

It ought to be abundantly obvious to everyone who has practiced law in an institutional setting that the individual to whom a particular piece of legal writing is formally addressed is the exact same individual who asked the questions that triggered the creation of the document. This is particularly the case in large, government bureaucracies such as the Pentagon.

I also pity poor Mr. Haynes, sitting in his office, fiddling with his paperclips, utterly oblivious to Youngstown because of Yoo's mendacious failure to mention it.

Yes, I admit it, I'm the dimwit here.
4.18.2008 11:05am
AnonLawStudent:

Or am I so blinded by my moonbattery (and "shoddy legal reasoning") that I'm reading too much into Yoo's words?


Ummm... General Counsels aren't consumers of legal advice. To whit: when Jeff Immelt asks Brackett B. Denniston III whether GE can get away with doing something, the resulting memo is probably going to be on the very narrow issue that Mr. Denniston thinks is controlling and will probably have Mr. Denniston's name in the "To:" field. Is the memo prepared for Mr. Denniston, i.e., is it for his benefit? No - General Counsels generally aren't officers with operational authority; they certainly aren't in DoD. They do, on the other hand, have underlings prepare memos so that they can provide legal advice to those who do have operational authority.

Try again, but I wouldn't add "organizational law" to the list of services on your shingle.
4.18.2008 11:07am
Anderson (mail):
Okay, smarties. Yoo says "YOU ASKED" for the memo, but of course, we wouldn't want to be strict constructionists here.

Whom Haynes wanted to pass the advice along *to* is a separate question. One could ask him, preferably under oath.

Btw, the 2002 memo, which Yoo largely reprised in the 2003 memo, was to Gonzales: "You have asked for our office's views ....." But again, obviously, that can't be right, because Bybee says that Gonzales has asked for his office's views, and why would Gonzales do that? Makes no sense to c. gray or ALS, so it can't have happened that way.

I stand corrected.

Next up: ALS demonstrates that Yoo did cite to Youngstown -- you just have to apply the theory of textual construction set forth in The Bible Code.
4.18.2008 11:15am
Anderson (mail):
(It would do no good, btw, to ask Gonzales under oath whom *he* wanted to pass the advice to. He wouldn't recall.)
4.18.2008 11:32am
advisory opinion:
"Tony, I think it's "unlawful combatant" that you have in mind."

That doesn't rehabilitate his assertion either. Again, Ex parte Quirin: "By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, and also between those who are lawful and unlawful combatants."
4.18.2008 11:34am
Anderson (mail):
Right, A.O., but Quirin predates Geneva.

At any rate, I for one have never been opposed to trying KSM et al. before *regular* military tribunals -- I would very much prefer to have them tried in our federal district courts, but if the UCMJ allows for trying them before tribunals, then fine.

But that's never been the issue; the "unlawful enemy combatant" dodge was devised to justify holding these men indefinitely, torturing them, and then putting them on "trial" before kangaroo tribunals that violate fundamental notions of due process.
4.18.2008 11:44am
Iolo:
What about the students' rights to learn what is right, and to avoid being taught what is wrong?

Pah, if we're going to get rid of faculty on the grounds that they teach what is "wrong", we're going to have to make a clean sweep of the liberal arts departments nationwide, just for starters.
4.18.2008 11:53am
MarkField (mail):

Assuming, arguendo, that Boalt should remove tenured professors for intellectual dishonesty or anything else not determined by a criminal justice or bar disciplinary proceeding, how is that supposed to happen? What has to be established by whom under what standard of proof through what type of process for which kind of investigation performed by whom to begin? And this would be spelled out where?


The standards can be found here. I'll quote some relevant passages:

"Part II of this Code elaborates standards of professional conduct, derived from general
professional consensus about the existence of certain precepts as basic to acceptable faculty
behavior. Conduct which departs from these precepts is viewed by faculty as unacceptable
because it is inconsistent with the mission of the University. The articulation of types of
unacceptable faculty conduct is appropriate both to verify that a consensus about minimally
acceptable standards in fact does exist and to give fair notice to all that departures from these
minimal standards may give rise to disciplinary proceedings."

The standards then go on to do two things: list certain ethical principles; and provide examples of unethical conduct. The examples given are expressly stated to be examples and not exhaustive: "The examples of types of unacceptable faculty conduct set forth below are not
exhaustive."

The scholarship standards I mentioned above are in Part II.B. The criminal conviction language cited by Dean Edley and Prof. Leiter appears in Part II.E.

To answer your specific question, the procedural safeguards are described in Part III. Each Division of the faculty is supposed to have "an appropriate mechanism for consideration and investigation
of allegations of misconduct received from members of the faculty, staff,
students, the administration, and other members of the University community." Once this investigation has taken place, a report must be made to the Chancellor:

"The Chancellor may not initiate notice of proposed disciplinary action unless
there has been a finding of probable cause. The probable cause standard means
that the facts as alleged in the complaint, if true, justify the imposition of
discipline for a violation of the Faculty Code of Conduct and that the Chancellor
is satisfied that the University can produce credible evidence to support the
claim. In cases where the Chancellor wants a disciplinary action to proceed, the
Divisional hearing committee must hold a hearing and make findings on the
evidence presented unless the accused faculty member settles the matter with the
Chancellor prior to the hearing or explicitly waives his or her right to a hearing."

Others can speak for themselves, of course, but my position is simply that Berkeley should enforce its own, previously adopted standards. I don't want new ones invented (though the standards do permit a common law form of development), and I want Yoo to have all the required protections.
4.18.2008 11:54am
Tony Tutins (mail):
Anderson: yes, more specifically, "enemy combatant" used to mean "unlawful"/unprivileged combatant.

Tom Shipley -- the US has been prosecuting murderers not of uniform since 1775.
4.18.2008 12:04pm
Tony Tutins (mail):
Pah, if we're going to get rid of faculty on the grounds that they teach what is "wrong"

Academic freedom permits Holocaust-denier Arthur Butz to keep his job on the condition that he never mention it in his classes, which are on Electrical Engineering, not history. I'm pretty sure if he offered a course on his book, The Hoax of the Twentieth Century, Northwestern would have been able to show how that constituted intellectual dishonesty.
4.18.2008 12:15pm
Anderson (mail):
I'm pretty sure if he offered a course on his book, The Hoax of the Twentieth Century

I love how his title alludes to his intellectual forebears.

Where was academic freedom when Alfred Rosenberg needed it?
4.18.2008 12:20pm
x (mail):
Anderson - Right, A.O., but Quirin predates Geneva

Ex parte Quirin, 317 U.S. 1 (1942)


The (Geneva) Conventions were the results of efforts by Henry Dunant, who was motivated by the horrors of war he witnessed at the Battle of Solferino in 1859. In 1977 and 2005 three separate amendments were made part of the Geneva Conventions.

The adoption of the First Convention followed the foundation of the International Committee of the Red Cross in 1863. The text is given the title Resolutions of the Geneva International Conference, Geneva, 26–29 October 1863.

You're wrong even assuming you're talking about the Third Convention which was adopted in 1929. Only the Fourth Convention was adopted after Quirin and has little to say about either Quirin or KSM, since it covers treatment of civilians not combatants, legal or otherwise.
4.18.2008 12:58pm
Anderson (mail):
You're wrong even assuming you're talking about the Third Convention which was adopted in 1929. Only the Fourth Convention was adopted after Quirin and has little to say about either Quirin or KSM, since it covers treatment of civilians not combatants, legal or otherwise

Sigh. I am talking about the 1949 Geneva Conventions, i.e., those which are actually in force &binding today.

See the intro to GC3: The present Convention replaced the Prisoners of War Convention of 1929. It contains 143 Articles whereas the 1929 Convention had only 97. It became necessary to revise the 1929 Convention on a number of points owing to the changes that had occurred in the conduct of warfare and the consequences thereof, as well as in the living condition of peoples.

The point of GC4 was to cover non-POW's, who suffered so extensively in WW2.

The relevance here is that there is no such thing as being "not a POW, not a civilian either, hence not protected by Geneva at all." If you're arguing with that thesis, then please explain. Otherwise, I don't see that we have any material disagreement.
4.18.2008 1:04pm
Anderson (mail):
Oh, and just to emphasize: is the 1929 convention in force?

No, says the ICRC. Who else you gonna ask?
4.18.2008 1:05pm
Iolo:
the US has been prosecuting murderers not of uniform since 1775.

It is utterly fatuous to treat terrorists as "ordinary criminals".
4.18.2008 1:42pm
Paul Campos (mail):
I'm not going to comment on the substance of this dispute since I've done so elsewhere.

I would like to make a sociological observation, though, which is that one of the most striking characteristics of people like Adler and Leiter is that they have a habit of chracterizing fundamental political disagreement as a species of analytic or formal legal error.

Thus instead of noting that I have different view -- for political, moral, and pragmatic reasons -- of how tenure ought to function in these circumstances than they do, it is said that I don't "understand" academic freedom, as if academic freedom were the infield fly rule or the atomic weight of helium, as opposed to a fundamentally contestable concept that indeed is being contested at the present moment.

This is a kind of professional deformation that, in my experience, people in the more authority-driven and intellectually pompous academic disciplines (law and philosophy stand out) are particularly prone to develop.
4.18.2008 1:48pm
Anderson (mail):
It is utterly fatuous to treat terrorists as "ordinary criminals".

It is utterly fatuous to declare that it is utterly fatuous to treat terrorists as "ordinary criminals".

Last I saw, the portions of the U.S. Code forbidding terrorist acts were in the same volumes as the rest of the Code. No special black-bound tome.

Many of our problems post-9/11 have come from this administration's awestruck glorification of terrorists into a cross between the Sith and the Cylons.
4.18.2008 2:01pm
Richard Nieporent (mail):
What we have here is nothing more than a Left-wing lynch mob. I’m only surprised that you are only advocating that Professor Yoo should be fired (and imprisoned?). Judging by the level of invective displayed here I would have thought drawn and quartered would be the proper punishment for Professor Yoo. I guess the concept of innocent until proven guilty is foreign to you? You just know that he is guilty of “war crimes” and the need to actually prove it is superfluous, correct? I look forward to the day when people like you in power. We could cull all of those ideological-deviant academics from the universities, academic freedom be damned.
4.18.2008 2:04pm
PLR:
What we have here is nothing more than a Left-wing lynch mob. I’m only surprised that you are only advocating that Professor Yoo should be fired (and imprisoned?). Judging by the level of invective displayed here I would have thought drawn and quartered would be the proper punishment for Professor Yoo. ...

Rather dramatic. Anderson is a mob? Well, he does seem to set some people off.

It's interesting that the devastatingly precise and calm responses of MarkFields have not drawn much attention from the apologists for torture. Enjoy the silence.
4.18.2008 2:21pm
MarkField (mail):

I guess the concept of innocent until proven guilty is foreign to you? You just know that he is guilty of “war crimes” and the need to actually prove it is superfluous, correct? I look forward to the day when people like you in power. We could cull all of those ideological-deviant academics from the universities, academic freedom be damned.


Normally a rant like this would deserve nothing other than silence or perhaps snark in response. But there are two important points I want to emphasize:

1. As I said above, the issue here is whether Berkeley has enough facts to investigate. Not "terminate", "investigate".

2. The issue of Yoo's intellectual honesty is one that most lawyers can judge on their own. It's pretty much an issue of law, like the interpretation of a contract or a statute. We've all written memos; we know what the standards are. When we see blatant omissions from ordinary practice, especially from someone presumed to be intelligent and to know better, it raises suspicion.

Now, I don't want this second item to be misinterpreted, so I'll make the point as strongly as I can: the fact that we can see the obvious deficiencies in the memos does NOT mean that we want to skip the investigation stage and proceed right to the flaying. What it means is that there appears to be a prima facie case. That's what makes it worthy of investigation.
4.18.2008 2:34pm
Tony Tutins (mail):
It is utterly fatuous to treat terrorists as "ordinary criminals".

But that's how the US always treated terrorists. Look up Albizu Campos, Collazo, and Torresola, for an example.

I’m only surprised that you are only advocating that Professor Yoo should be fired

I'd be willing to get Ayers, Dohrn, and Angela Davis fired as well.
4.18.2008 2:36pm
Anderson (mail):
Anderson is a mob?

So many directions to go in here: My name is Legion? I am large, I contain multitudes?

--I do admire Mark for his ability to remain calm and measured; I tend to adopt the temperature of those arguing against me, which is not a virtue.

But, as Mark Field and I have both said above, the question is whether Berkeley should *institute* proceedings, the outcome of which would remain open. "Richard Nieporent" (which sounds like a chimeric combination of two other frequent commenters here) knows that, because we have said so above.

Apparently, the truth provides insufficient support for his position.
4.18.2008 3:29pm
frankcross (mail):
First, this comment from Paul Campos is unintentionally hilarious:

I would like to make a sociological observation, though, which is that one of the most striking characteristics of people like Adler and Leiter is that they have a habit of chracterizing fundamental political disagreement as a species of analytic or formal legal error.

since that is exactly what he's doing to Yoo.
And what Anderson is doing. Very liberal expert professors, including Leiter and Graber, think Yoo's legal analysis was not unusually bad. So it's just a matter of investigating people with whom you ideologically disagree.

Anderson and others seem oblivious to the fact that the people making these investigations and decisions just might be conservative ideologues who rid faculties of liberal professors.
4.18.2008 4:25pm
PLR:
Very liberal expert professors, including Leiter and Graber, think Yoo's legal analysis was not unusually bad.

...as Jack Goldsmith (I'll spare you a line of self-serving adjectives) and countless others do think so, and as Mukasey's DOJ has confirmed (yesterday to Senator Whitehouse) that it has initiated its own investigation of the circumstances surrounding the delivery of the Yoo memo (suggesting that it is indeed unusually bad, rather than routinely bad).
4.18.2008 4:35pm
Mahan Atma (mail):
"I guess the concept of innocent until proven guilty is foreign to you?"


Straw man. Nobody had asserted that Yoo should be imprisoned without a trial.

Imprisonment without trials is your policy, not mine.
4.18.2008 4:36pm
Anderson (mail):
Very liberal expert professors, including Leiter and Graber, think Yoo's legal analysis was not unusually bad

Graber apparently thinks Dred Scott was correctly decided.

As for Leiter, the linked post contains no evidence of Leiter's holding such a bizarre position -- where does Leiter defend Yoo's legal analysis, even to such a limited extent?

Frank Cross's solicitude for liberal professors is laudable, I suppose. However, we have a fairly narrow fact pattern here: legal advice given that was so egregiously bad as to cast serious doubt on the professional fitness of the lawyer who gave it.

On those facts, I would be happy to see the tenure of any purveyor of any such egregiously bad client memo placed into jeopardy, liberal, conservative, whatever.

I know it's difficult to communicate this to politically extreme minds, but this case is not about politics; it's about professional standards.

It's only become political because defending torture, and those who abet torture, has become a Republican cause.
4.18.2008 4:43pm
Richard Nieporent (mail):
But, as Mark Field and I have both said above, the question is whether Berkeley should *institute* proceedings, the outcome of which would remain open. "Richard Nieporent" (which sounds like a chimeric combination of two other frequent commenters here) knows that, because we have said so above.

Of course Anderson you only want to institute* proceedings, the outcome of which would remain open. That reminds me of the remark made in the old Westerns – first we give him a fair trial and then we hang him. Or for a more modern version we will give him a show trial. At least be honest enough to say that you have no doubt he is guilty and as far as you are concerned the purpose of the proceedings is just to go through the motions in order to reach a predetermined outcome.

By the way, don’t your think your 20+ posts on this thread are a little excessive. I would have thought someone of your intellect would be able to make his point in a few less posts.
4.18.2008 6:27pm
frankcross (mail):
It wasn't egregiously bad, you just think so because of ideology. Indeed, your line about Dred Scott just shows how simplistic and ideologically ends-oriented you are. Dred Scott was correctly decided under the law of the time, regardless how awful it was, and you haven't analyzed that law, I'm confident, you just reject it because of ideology. PLR, Jack Goldsmith thought the memos wrong, not necessarily so very wrong as to warrant tenure revocation. If he said they were so bad, I'd take the issue seriously.

However, for about the sixth time, you can't come to grips with the crucial issue. Which is that if you can revoke tenure for a bad memo, even an egregious one, the people making those decisions won't necessarily get it right. Instead, they will be bowing to political pressure. We know that from history. Your ignoring this fact is more significant than Yoo ignoring Youngstown.
4.18.2008 6:32pm
PLR:
PLR, Jack Goldsmith thought the memos wrong, not necessarily so very wrong as to warrant tenure revocation. If he said they were so bad, I'd take the issue seriously.

Is that so? Well, here's what he said:
I was briefed on some of the most sensitive counterterrorism operations in the government. Each of these operations was supported by OLC opinions written by my predecessors. As I absorbed the opinions, I concluded that some were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president. I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on a severely damaged legal foundation. It began to dawn on me that I could not – as I thought I would eventually be asked to do – stand by or reaffirm these opinions.

And in the event the rest of your post was also directed at me, of which am not certain:

However, for about the sixth time, you can't come to grips with the crucial issue. [I don't have that many posts on this thread.[ Which is that if you can revoke tenure for a bad memo, even an egregious one, the people making those decisions won't necessarily get it right. [I haven't addressed the tenure issue, but those who have are supporting their argument with more than one bad memo; and the decisionmakers are at least as likely to get it right as get it wrong.] Instead, they will be bowing to political pressure. [The fact that pressure has been applied does not mean an outcome is wrong.] We know that from history. [History provides examples of both bad judgment under pressure and good judgment under pressure.] Your ignoring this fact is more significant than Yoo ignoring Youngstown. [I don't ignore history, nor do I selectively recall it. I also prefer not to make comparisons that are nonsensical.]

I'm done with bickering over non-legal issues. Carry on.
4.18.2008 7:04pm
Anderson (mail):
It wasn't egregiously bad, you just think so because of ideology.

Whatever.

Dred Scott was correctly decided under the law of the time

Double whatever. See, e.g., Wikipedia:

Curtis, in dissent, attacked that part of the Court's decision [finding the MO Compromise unconst'l] as obiter dicta, on the ground that once the Court determined that it did not have jurisdiction to hear Scott's case its only recourse was to dismiss the action, not to pass judgment on the merits of his claims. The dissents by Curtis and McLean also attacked the Court's overturning of the Missouri Compromise on its merits, noting both that it was not necessary to decide the question, and also that none of the Framers of the Constitution had ever objected on constitutional grounds to the United States Congress' adoption of the antislavery provisions of the Northwest Ordinance passed by the Continental Congress, or the subsequent acts that barred slavery north of 36°30'. Nor, these justices argued, was there any Constitutional basis for the claim that African-Americans could not be citizens. At the time of the ratification of the Constitution, black men could vote in ten of the thirteen states. This made them citizens not only of their states but of the United States.

Sounds like a brilliantly reasoned decision to me. Try substituting "Stevens" for "Taney" as the author and see what you think then.

As for tenure decisions, guess what: people get those wrong now. People will get them wrong in future. And your point is?
4.18.2008 7:11pm
Anderson (mail):
PLR, I think that was me that Frank was bashing, but you made a better me than I did.
4.18.2008 7:15pm
Kathi Smith (mail):
Iolo, you said
"Pah, if we're going to get rid of faculty on the grounds that they teach what is "wrong", we're going to have to make a clean sweep of the liberal arts departments nationwide, just for starters."
I assume you know that Law School is simply a trade school, not analogous to the liberal arts education we got in undergrad. (Sorry, law professors.) In Trade School, you should learn the trade correctly.
4.18.2008 7:42pm
Golly (mail):
One of the weaker arguments being made by those in favor of Boalt's sanctioning Yoo is the argument that the memos are some kind of evidence of his teaching ability, or of how and what he teaches students. This particular argument really should be retired. I was a student of Yoo's after he wrote both memos, and after the first one was released. He does not present only his personal research agenda to students. In the classroom, he is actually quite balanced in his presentation of issues that he has taken a particular position on in his scholarship. (And I am not at all in agreement with the positions he takes in his scholarship, so I'm not using "balanced" to mean "expressing views I agree with.") I think most of Yoo's students, including those who, like me, consider the memos legally and morally objectionable, will report the same. The memos tell you nothing at all about what Yoo does in the classroom, or how he behaves toward students. If they reflect anything beyond his professional conduct in the OLC, they reflect his scholarly agenda--the way he represents his position to fellow academics. You may want to draw conclusions about his moral compass from the memos, but those are going to be pretty speculative conclusions, and they don't warrant further conclusions about his classroom conduct or treatment of students.
4.18.2008 7:53pm
LM (mail):
Mark Field, Anderson,

Once you depart from the objective bases for discipline (e.g., criminal conviction, disbarment), you might as well ignore the other enumerated prohibitions in the Code, since they're all non-exclusive. The lowest common denominator rule is from Part II:

University discipline under this Code may be imposed on a faculty member only for conduct which is not justified by the ethical principles and which significantly impairs the University’s central functions as set forth in the Preamble.

And the Preamble says:

The University seeks to provide and sustain an environment conducive to sharing, extending, and critically examining knowledge and values, and to furthering the search for wisdom. Effective performance of these central functions requires that faculty members be free within their respective fields of competence to pursue and teach the truth in accord with appropriate standards of scholarly inquiry.

The faculty’s privileges and protections, including that of tenure, rest on the mutually supportive relationships between the faculty’s special professional competence, its academic
freedom, and the central functions of the University. These relationships are also the source of the professional responsibilities of faculty members.

It is the intent of the Faculty Code of Conduct to protect academic freedom, to help preserve the highest standards of teaching and scholarship, and to advance the mission of the
University as an institution of higher learning.

Wide enough to drive a partisan witch hunt through from either side. Do you really disagree that without a conviction, disbarment or malpractice judgment, disciplining Yoo on anything short of actual, proven dishonesty or bad faith could start a new chapter of ideological tenure wars?

Yoo authored controversial, widely, though not universally, discredited memos. The moral and human stakes implicated by the memos are huge, but that alone shouldn't lower the bar for commencing academic discipline. Before investigating revoking someone's tenure for work they did on a highly politically charged issue, you should be doubly hesitant to cut evidentiary corners. When you have to infer the crucial dishonesty from the controversial legal analysis itself, you're being anything but cautious.
4.18.2008 8:10pm
AnonLawStudent:
Kathi,

If the law school that you attended was a "trade school," I question whether you have sufficient legal acumen to knowledgeably comment on the quality of Professor Yoo's work. Boalt Hall - like the rest of the top 20 or so law schools - certainly isn't a "trade school." The graduates of these institutions aren't applying well-established law in divorce cases and slip-and-falls: they tend to spend their careers writing the law or operating in areas where the law isn't clear. Indeed, an important part of their legal education is exposure to the conflicting policies underlying the law and governing its future direction.
4.18.2008 8:32pm
MarkField (mail):

Once you depart from the objective bases for discipline (e.g., criminal conviction, disbarment), you might as well ignore the other enumerated prohibitions in the Code, since they're all non-exclusive.


The posters here on this thread on NOT "guilty" of this. Berkeley's own standards already make this departure. It's those standards which use the general phrase "intellectual honesty" and which expressly state that the examples are not exhaustive.

Now, it may very well be that Berkeley would better protect academic freedom if it just listed a bunch of very specific behaviors. That's not, however, the hypothetical world we're dealing with. Moreover, there's a good reason not to do that: someone will always come along and do something previously unthinkable in a university professor.

If you were right, I'd have no objection to Berkeley announcing that it was re-thinking its standards and modifying them the way you suggest. I don't think that would be good policy, and I'd oppose it, but at least it would deal with the issue.


Do you really disagree that without a conviction, disbarment or malpractice judgment, disciplining Yoo on anything short of actual, proven dishonesty or bad faith could start a new chapter of ideological tenure wars?


Proving dishonest or bad faith would be the point of the investigation and subsequent hearing. Of course Yoo should not be disciplined unless Berkeley meets its burden of proof on that score.


When you have to infer the crucial dishonesty from the controversial legal analysis itself, you're being anything but cautious.


I think this carries caution too far. After all, we rarely expect people to admit that they acted in bad faith or dishonestly. The legal system infers that intent from actions and their surrounding circumstances all the time, whether the issue is murder or fraud or malice or whatever. I'd expect any investigation/hearing to take this problem into account on both sides.

Moving on, I kind of hate to get in the middle of the very pretty quarrel between Prof. Cross and Anderson, but it seems to me that Prof. Cross has undercut his own argument. Let me explain.

There are, as I see it, 3 possible situations:

1. Yoo has no defense; everyone agrees that his reasoning was intellectually dishonest.

2. Those who hate Yoo's conclusion admit that he reasoned well.

3. There's a controversy over Yoo's reasoning, with some concluding that it was intellectually dishonest and others disagreeing.

I can see no reason to conduct an investigation or hold a hearing in cases 1 or 2. Everybody agrees. The only situation in which we'd hold a hearing is in precisely the case where people disagree.

Here we have, at least, Leiter and Gardner on one side, while Jack Goldsmith, Steven Griffin ("Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert")*, Scott Horton ("Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution."), Marty Lederman ("The arguments are simply implausible, radically incomplete, and dishonest."), Emily Bazelon ("the legal reasoning of Yoo and the other torture lawyers is shoddy and unmoored"), and others have expressed views consistent with the possibility that the memos violated Berkeley's standard. In addition, there are objective facts which support that conclusion: the Administration itself has withdrawn the memos; they were issued in secret; certain facts suggest that they were issued specifically to immunize against liability for torture rather than to state an honest assessment of the law.

In citing to the opinions of Leiter and Gardner, Prof. Cross has therefore established the very condition precedent for conducting an investigation.

*Griffin nevertheless opposes any action by Berkeley against Yoo. I cited his opinion only because it seems relevant to the ultimate issue established in Berkeley's standards. The others, except Scott Horton, whose views I cited either have not made their views known or I have missed them. As I understand Horton's position, it is identical to my own described in this thread.
4.18.2008 8:59pm
Anderson (mail):
Boalt Hall - like the rest of the top 20 or so law schools - certainly isn't a "trade school." The graduates of these institutions aren't applying well-established law in divorce cases and slip-and-falls: they tend to spend their careers writing the law or operating in areas where the law isn't clear.

Well, my gracious -- how silly of a little ol' country lawyer like me to presume to guess at the more exalted standards of such ethereal realms.

ALS is of course betraying considerable ignorance (understandable in a law "student") in imagining that divorce cases, or any other areas of law, are "clear." Some are, of course, and those settle or resolve with relative ease.

One of the remarkable things I've enjoyed about my few years of law practice has been the discovery that the law is NOT clear in plenty of areas where one might imagine otherwise. Even the Federal Rules of Civil Procedure, which you'd think had been explicated to the utmost in 70 years, turn out to generate unclear problems and circuit splits.

Every lawyer who practices actively, in other words, deals with "areas where the law isn't clear."

And when we do so, we explain to our clients *why* the law isn't clear, what the various alternatives seem to be, and which alternatives seem more likely than others.

None of which Yoo did in his memos.
4.18.2008 11:03pm
Anderson (mail):
The memos tell you nothing at all about what Yoo does in the classroom, or how he behaves toward students.

Golly (commenter name, not expletive), that's extremely useful information about Yoo; I've heard similar from commenter Ugh (is this a Yoo-student thing?). I would expect student testimony like that to be particularly important at a hearing, and it might very well be decisive.

The best thing about a hearing, I think, is that it would put the extra-legal community on notice that, in fact, the professional standards of the memos *are* very low, and *do* raise questions about his teaching and his ethical commitment to the law.

How those questions are *answered* would depend on Yoo's testimony, if he cared to offer any, and on present and former students like yourself.

Contrary to the usual silly insinuations above, I am not dedicated to pre-judging Yoo. I just think that the torture memos are crap, professionally speaking, and that a law school where their author teaches needs to take an interest in what, IF ANYTHING, such defective work product says about their author's teaching and about the ethical model he's presenting to students.
4.18.2008 11:08pm
LM (mail):
Mark,

The posters here on this thread on NOT "guilty" of this. Berkeley's own standards already make this departure.

I know it does, and I didn't say otherwise. I just assume, in part based on Dean Edley's statement, that for practical reasons the school routinely applies a higher threshold than the rules might permit it to for investigating accusations against tenured faculty. And if you're saying now that the school should investigate this politically charged allegation of intellectual dishonesty, which has to be inferred from the quality of the legal analysis, you're inviting a partisan tit-for-tat assault on the faculty, and it will damage the school.
4.19.2008 5:38am
MarkField (mail):

I know it does, and I didn't say otherwise. I just assume, in part based on Dean Edley's statement, that for practical reasons the school routinely applies a higher threshold than the rules might permit it to for investigating accusations against tenured faculty.


Fair enough, given your assumption. But I don't know if that assumption is true; if it is, and if Edley is operating on that basis, he should say so.

I'd note that, of course, that still wouldn't excuse Berkeley from investigating the more serious charge that Yoo conspired to commit a (very serious) felony.


And if you're saying now that the school should investigate this politically charged allegation of intellectual dishonesty, which has to be inferred from the quality of the legal analysis, you're inviting a partisan tit-for-tat assault on the faculty, and it will damage the school.


As I suggested above, I expect the evidence to consist of the surrounding circumstances as well as inference from the memos themselves. I think the external evidence, combined with a high standard for any inference, would provide sufficient protection for academic freedom.

Ultimately, nothing other than absolute tenure will prevent conservatives from targeting liberal professors under the guise of "treating them the way Yoo got treated". We don't even need to investigate Yoo to see this; conservatives already do it on far weaker grounds (see Ward Churchill, to say nothing of David Horowitz's pathetic crusades).

The sad truth is that torture is an extreme. It's one of those rare categorical wrongs, like slavery, the Holocaust, or rape, for which there simply are not two sides. Estabhishing an academic standard at such a limited level does not, in my view, open the field to other targets. And even if I thought it did, I'd still say it's worth the risk -- taking a moral stand against torture is that important.
4.19.2008 11:54am
LM (mail):
Mark,

If I were as convinced as you are of Yoo's bad faith I would agree. But I'm not convinced, however shoddy his work product may be. I've seen too many intelligent people honestly believe too many absurd things (e.g., moon landing hoax, Vince Foster murder) to discount the self-deluding power of ideology and passion. And the actual existence or not of Yoo's dishonest intentions is the difference between behavior that demands prosecution, disbarment and loss of tenure, and another instance of people's convictions honestly blinding them to their opposites being honestly blinded by their own.
4.19.2008 6:41pm
MarkField (mail):

If I were as convinced as you are of Yoo's bad faith I would agree.


Fair enough, and ditto with the rest of your post. But I wouldn't say I'm "convinced" yet. "Suspicious", yes, probably extremely so. But I wouldn't be actually convinced, one way or the other, until after a full hearing. And that's why we need one.
4.19.2008 7:55pm
LM (mail):
Mark,

I responded on the thread to DB's post about Yoo and int'l law, so Jonathan doesn't have to keep this one open just for us.
4.19.2008 10:13pm