Brad DeLong writes:
My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo’s appointment to the University of California faculty should be revoked for moral turpitude.
But I find myself frozen, unable to decide whether I should or should not write to William Drummond. I find myself frozen because I am confronted by the ghost of medieval scholar Ernst Kantorowicz. Ernst Kantorowicz—right-wing authoritarian anti-Democratic anti-communist German nationalist—was asked as a condition of his appointment to the University of California faculty to swear this oath:
Having taken the constitutional oath of the office required by the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.
He refused and protested:Ernst Kantorowicz: There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer’s maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which—under the pressure of bewildering economic coercion—he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar…
What should the Berkeley Division of the Senate of the University of California Do?
My first reaction is (a) that Brad should indeed refer this to the Senate of the University of California (this might not be the best final context to deal with these issues, but it is the one associated with the institution where both Brad and John Yoo work), and that (b) this is not, in the end, an issue of academic freedom. That is, it doesn’t concern Yoo’s ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the US government to facilitate war crimes. As Marty Lederman bluntly describes it
I’ve now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye—nothwithstanding a statute that would prohibit that very conduct?
I believe that Yoo has suggested since that he didn’t anticipate how his legal opinion would be used; personally, I find these claims quite hard to believe, although I may very possibly be wrong. Here, the issue isn’t that Yoo believes that the President’s powers allow him to do this, or that he has made the case in public argument that this is so; instead, the issue is that he wrote an opinion which appears on its face to be directly intended to help US personnel to torture and (if necessary) maim prisoners.
Thus, while I personally find, say, Alan Dershowitz’s opinions on torture and the bombing of civilians to be reprehensible and disgusting (and have serious qualms about his reported style of research) I wouldn’t argue that he be asked to step down from his position, because this would chill the ability of academics to freely engage in unpopular and controversial arguments. I have serious doubts over whether these liberties should provide protection for the kind of action that Yoo is alleged to have engaged in. I recognize that people differ on these issues, and can perhaps be convinced that I’m wrong, but my first instinct is that this is a case where traditional academic freedoms don’t and shouldn’t apply.