Yoo make my dreams come true...

More on the Yoo problem from Scott Horton, brilliant Lawyer and, now, blogger and columnist at Harper's

Dean Edley asks what appears to be a rhetorical question:

Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

The answer to that question is "yes." The liability of an attorney dispensing advice with respect to the treatment of persons under detention in wartime is subject to a special rule. It cannot be viewed in the same manner as advice given in a complex commercial dispute, for instance... United States v. Altstoetter.... Following on the guidelines established by Justice Robert H. Jackson, the U.S. chief prosecutor, Telford Taylor, and his deputy, Charles M. La Follette, established clear principles of accountability for lawyers dispensing legal advice in circumstances virtually identical to those faced by John Yoo.... Each of these criteria is satisfied with respect to Yoo's advice under the torture memoranda. They explicitly address persons under detention. It was reasonably foreseeable that persons would suffer serious physical or mental harm or death as a result of the application of the techniques (in fact there have been more than 108 deaths in detention, a significant portion of them tied to torture). And the analysis was false, a point acknowledged ultimately by the OLC itself. Accordingly, a solid basis exists under the standard articulated by the United States under which John Yoo may be charged and brought to trial. In his defense Yoo will certainly rest almost entirely on notions of immunity crafted in derogation of non-derogable international law. These arguments will work with courts in the ideological thrall of the Bush Administration, but not elsewhere.

However, my point here is not to make the prosecutor's case against Yoo. It is to show that what he did raises not merely ethics issues, but actual criminal culpability. Edley's failure to appreciate that is very troubling. Yoo is protected by the political umbrella of the Bush Administration for the moment.... So Professor Yoo will want to think twice before boarding a jet for one of those stays on Lake Como of which he is so fond.

Yoo are so beautiful!

According to the Dean Edley in Boalt Hall...

The Torture Memos and Academic Freedom

Christopher Edley, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean
UC Berkeley School of Law

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo’s continuing employment at UC Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

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

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

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

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter?—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

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

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

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

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

April 10, 2008

Goodbye to Yoo?

B. Delong links to this paragraph re John Yoo's basic (lack of) ability to understand the law:

With this many academics talking about this stuff, if there were enough directly applicable precedents to be 'controlling' here, someone would know the story offhand. I could be wrong, but I'd bet a fair amount that the decision of how to apply the faculty code of conduct is up to Boalt Hall, reasoning from first principles, not from precedent.

And at that point, I have a very easy time saying it's the equivalent of scholarly misconduct. Legal work isn't exactly scholarship, but it has its own ethical obligations. And writing a memo like that [of March 14, 2003] (everyone's harping on Youngstown, but that's something whose absence takes the memo out of the realm of possible good-faith argument) is unethical -- if those arguments were made to a court, they would be an unethical attempt to deceive the court into believing there was no contrary precedent. That failure to meet the standards of practice required by the legal profession appears to me to be close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct.

Note that I'm not arguing that he's such a bad man that he should be fired, but that the memo establishes that he is such a bad (either implausibly incompetent or much more likely ethical-standards-violating) lawyer that he should be fired as a professor of law....

I think it's a pretty easy case to make... [O]n some level the reason you can fire a professor for scholarly misconduct is to make it clear that if you, e.g., falsify data, you may not teach -- people learning to be scholars shouldn't learn that such falsification is compatible with scholarship. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is very much the same sort of misconduct, and the argument that people learning to be lawyers must be protected from coming to believe that it's an acceptable part of lawyering is closely parallel...

I don't know where I stand on this. Academic freedom should be absolute--even to make a mistake. However, it would seem that one's ability to do one's job and interpret basic facts is not so much about academic freedom as it is fulfilling the prerequisite duties of one's job--a very different case indeed.

I doubt that anyone will follow through with this. (I wonder: is this cosmic payback for Ward Churchill?) If censure or something does come down the pipe for Yoo, left-oriented law professors should watch their backs. The Right is much, much more ruthless.