A non-starter. The Supreme Court long ago held that the 1st Amendment, along with other key parts of the Bill of Rights, applies to the states via the 14th Amendment.

1. Work out some reason why the First Amendment doesn’t apply to the University.
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I guess you don’t see a problem there…

Free speech, or lack of, can cut both ways. Sometimes we don’t like it. But there is no real free speech argument here. Why do unto others (the same) as you complain about them doing unto you (US)? There is no need to try and create new loopholes to attempt to fix a as of now perceived wrong. That is the basis of the problem – creating dodges. Persecuting/prosecuting just Yoo does nothing in an of itself really. It could be a first step towards getting the real culprits or it just as equally just give them the cover they were aiming for.

The first thing that has to be done is determining if our use of “harsh interrogation methods” was in fact torture and thus criminal. Most, or at least many, do hold that to be the case, but we’re not judges, juries or courts that carry any weight.

Re legal arguments:

1. Work out some reason why the First Amendment doesn’t apply to the University. I suggest either a) the University’s principle of academic independence means it’s not part of the government, and the First Amendment is only meant to limit the government; b) UCB is under the state government, and the First Amendment only limits the federal government; c) as the University of California performed defense research, it counts as part of the armed services, and so any attempt to limit its activities counts as restricting the Commander-in-Chief in time of war, which is WRONG (see Yoo!) or d) all of the above at once.

2. Work out some reason why Yoo was never really given tenure in the first place – annul his tenure, to use the Roman Catholic phrase.

What isn’t now a days? ;)

I would imagine there is exception for non citizens, but perhaps not. We do have non citizens in the armed services and they are required to oath out so to speak.

Isn’t that a bit tricky for non-US citizens? What if you’re over from Spain, say, as an associate professor for a couple of years? I mean, maybe you don’t actually want to overthrow the US Constitution, but do you need to swear to support and defend it?

(1) It is unlikely that Yoo can be fired for incompetence (although the comparison to a geography professor who also is a member of the flat earth society is on target). There is, in my experience, virtually no lower bound on that dimension.

(2) He may be susceptible to criminal prosecution and I have advocated that elsewhere. The probability here is approximately epsilon. The main problem is that the Democrats have no spine and bloody hands too.

(3) The clear asymmetry here has been staed repeatedly. Yoo was a government official contributing to the policy making process. When Yoo was writing his legal fictions he was not, like Dershowitz, just an academic – even if some folks might be influenced by AD’s wacked ‘ideas.’

(4) If there is no distinction between Yoo & Dershowitz, then is/are:

[i] Robert Kaplan culpable for writing Balkan Ghosts (a piece of trash) because it influenced Clinton’s views on ‘primordial conflicts’ in Africa & the Balkans?
[ii] Lapsed libertarians like John Gray & Robert Nozick are responsible for the idiocies of Thatcher and Reagan regimes?
[iii] The economists have dreamed up & implemented various deregulation schemes for the financial markets culpable for the current fiasco?

How about the neocon ‘intellectuals’ at this or that think tank who dreamed up the Iraq invasion in the first place? How about the ones who dreamed up the ‘surge’?

(5) What is Stanford going to do when Condi Rice announces she wants to return? Answer – fall over themselves to take her back.

Tell that to the enlisted men and women who’ve been prosecuted & Convicted for Abu Ghriab while all the criminals in the BushCo chain of command remain in office

As ‘Jerry’ wisely said on Delong’s thread:

There is another profession that wears gowns and is in many ways similar to the judge, priest, and scholar except for intellectual honesty in which it is almost always the clear leader.

But what does seem clear is that academics here are singling out Yoo because he is a target on their level.

It’s pretty absurd to take seriously the idea of charging Yoo with war crimes while skipping over people like the president, vice president, attorney general, Pentagon leaders, and members of Congress who openly promoted torture and actually implemented it. Those targets, however, have proved to be out of reach both in court and in the political debate.

AEI has long since beamed him up.

I love the mock trial, but as far as dismissal, as things stand I think Yoo has to convicted in a real court – not gonna happen, I fear – for Berkley to get rid of him. Otherwise we open a can of large worms.

Since it is a University, and not a business, why does he have to teach anything? I like the example of the professor that was just given an office and ignored. Heck, even businesses were known to do that sometimes with incompetents, back when firing people wasn’t considered something to be proud of.

But I really can’t decide. I’m trying to construct a model that I might understand, where say a moonlighiting professor from the school of archecture designs a building so badly – say he went senile – that a floor collapses before the sucker is even finished. Nobody gets hurt, an extensive review absolves the contractors, engineers, workmen—- it was clearly his fault.

Now the guy gets hammered in civil court by his client, but since no-one was hurt, there are no criminal charges. And of course he isn’t even going to “lose” a civil judgement, he’s going to settle out of court.

So in a technical legal sense, he is without stain. Yet the whole thing has been on the front pages of every newspaper… so what does the University do? It can’t just let him go on like nothing has happened, can it?