Academic Freedom: Some Propositions

by Henry on April 22, 2008

I suspect that I disagree with Eric (and very likely other CTites) on how we should think about academic freedom. To clarify this (and also to figure out better for myself why I think what I think), some propositions below.

(1) Academic freedom is not a right. I can’t see any good reason why we might think that academics qua academics bear more or different rights than other rights-bearing subjects. Sometimes academics talk about academic freedom as if it were a right – but I haven’t seen anything approaching a good argument to justify this quasi-claim, nor do I think there is one.

(2) As a result of (1), whatever arguments we make for the protection or extension of academic freedom should start from pragmatic considerations, not rights. What benefits flow from academic freedom for society? The usual (and in my opinion quite convincing) pragmatic case to be made for academic freedom goes as follows – that by allowing a group of individuals to engage in wide-ranging debate about a wide variety of subjects, subject only to the norms of their particular disciplines, we may expect substantial material and non-material benefits to flow to society as a whole. Here, the claim is that we need a space in society where people engaged in expert disciplines can freely debate their ideas without any fear of losing their job, in order to generate a variety of pragmatic social benefits, not least of which are (a) scientific advancement, and (b) the broader improvement of broader public debates. Note, however, that as a pragmatic claim, this only works if the causal story that it invokes is, in fact, correct.

(3) Following (2), we can define academic freedom better. As an institution or set of institutions, academic freedom is best considered as a form of delegated self-regulation, along the lines of other professions that have some self-regulatory capacities, such as medicine. Here, I borrow from a simplified notion of Jack Knight and Jim Johnson’s notion of democratic deliberation as a second order means of choice.1 We may imagine that there are many spheres of life where we don’t want to engage in deliberation all the time, because governing these spheres through deliberation would be inefficient, would require expert knowledge that most people don’t have etc.

We don’t, for example, want to deliberate with the grocer about the appropriate prices for oranges every time we want to pick up twelve of them. However, even if we don’t want to deliberate over everything, we do want to deliberate over the means that are appropriate to different spheres – so that the decision to leave the price of oranges to market forces, to delegate decision making over telecommunications policy to a specialized authority etc, should be the product of democratic choice, and contingent on a continued democratic consensus that this form of delegation is appropriate. In this specific instance, we may reasonably imagine (at least as a first approximation) that reasonable deliberators might want to delegate a considerable deal of authority for the governance of the academy to academics themselves, reasoning that overt politicization of the academy is likely to limit the free flow of argument, and that political decision makers in any event will usually lack the technical knowledge to determine what makes for good or bad scholarship.

(4) Even so, to the extent that academic freedom is the result of delegated self-regulation, academics carry a burden of justification. They need to be able convincingly to argue to the general public that a broad definition of academic freedom is, in fact, broadly beneficial for that public and not just for academics themselves. Members of the public are entitled to treat academics with a moderate degree of skepticism when they make claims of this sort; after all, it may be difficult for academics to separate out their own self interest from the public good. Academics, if they are to justify their privileges of self regulation (for academic freedom is indeed a kind of privilege), need to be able to persuade the public that it is a good thing. Merely harrumphing about academic freedom without justifying it doesn’t cut the ice.

Some academics may reply that this call for public justification is unreasonable in a political climate where academics are the subject of irrational attack from a variety of critics. This is far from being a stupid argument – but I don’t see that the imperfections of our current form of democracy are any greater when it comes to discussions over academia than they are with regard to a whole host of other issue-areas which (I suspect) most academics believe should be subject to democratic control, at least in the final analysis along the lines suggested above.

(5) It is difficult to cover cases like that of John Yoo under a pragmatically defensible account of academic freedom. The pragmatic justification for academic freedom, as I see it, is that it allows academics to argue about a variety of issues without worrying too much about whether they will lose their jobs for expressing unpopular ideas. If John Yoo were to lose his job for having written the torture memos for the US government, I can’t see how this free flow of argument and ideas within the academy would be hurt one whit. None of Yoo’s critics, to my knowledge, are arguing that he should lose his job for his ideas; rather that he should lose his job for actions that he took as a servant of the US government. Similarly, academic freedom wouldn’t apply, say, to academics in Europe in the 1960s and 1970s, who moved from espousing the ideas of radical left wing terrorist groups to actually helping them in material ways.

(6) Nonetheless, John Yoo shouldn’t lose his job. As I’ve written before there are excellent pragmatic reasons why employers shouldn’t fire people for political activities that take place outside the workplace. A society in which individuals can be fired without cause is a society in which individuals will very reasonably fear that they will face retaliation if they engage in unpopular forms of political activity.

It seems to me that in the absence of (a) a determination from a court (not necessarily a US court) that Yoo is in fact guilty of criminal activities up to and including war crimes, or (b) a determination from the relevant bar association that he should be disbarred, that firing him would be to make the kind of judgment about his political activities that the University (or any employer) shouldn’t be in the business of making. I’ve seen some arguments suggesting that the quality of his legal advice to the USG was so bad that it constitutes grounds for firing – so far, I’m not convinced (although I’m not closed to persuasion). Note, anyway that my argument against firing him doesn’t appeal to academic freedom. Instead, it appeals to a more general norm – that people, whether they be academics or non-academics shouldn’t be fired for legal political activities that they undertake outside the workplace.

(7) More an aside than anything else – much of the discussion about Yoo’s case dithers between vague appeals to academic freedom, and specific discussions of the nature of Yoo’s contractual arrangement with the University of California at Berkeley. Strictly speaking, debates over academic freedom that turn on detailed discussion of the ins and outs of Yoo’s (or any other academic’s) contract are yer bum. The relevant question is: if Berkeley found a loophole in Yoo’s contract tomorrow that allowed them to fire him for writing the torture memos, and used this loophole, would we consider this to be a breach of academic freedom or not?

I’ve argued that this would not be a breach of academic freedom, but that it would be a breach of the broader norm that we shouldn’t fire people for their political activities. But while we may (and, I think, should) try to instantiate both of these norms in contracts and in laws, they shouldn’t be limited to situations where those contracts or laws clearly apply. Otherwise, academic freedom would effectively be limited to a minority of the professoriate (those with tenure, or at a pinch with tenure-track jobs), while work freedoms would be limited to those lucky individuals who live in states that have some approximation of “for cause,” or who work for employers who have granted them these rights.

So there you are. Am open to disagreement and correction on any and all of this, but think it’s no harm to clarify exactly where I am coming from when I opinionate about these topics.

1 Without implying that either Jack or Jim would necessarily agree with this extension of their argument – as best as I can tell, they wouldn’t.

{ 221 comments }

1

grackle 04.22.08 at 4:58 am

I fail to see where you think your formulation is in disagreement with Eric’s view. Did you state where that lies?

2

Delicious Pundit 04.22.08 at 5:02 am

But it seems like the justification required in (4) can be ju-jitsued by opponents of academic freedom — by making continuous, nonstop demands for justification. It’s as if Richard Mellon Scaife or Heritage employed an eight-year-old whose only job was always to ask, “Are we there yet?”

Porting academic freedom over to the status of rights would then be awfully tempting, a kind of threat to turn the car around and not go to the Grand Canyon after all.

3

Jed Harris 04.22.08 at 5:08 am

Your discussion (and most others) omits the issue that I think is the most important: UC Berkeley is paying John Yoo to teach constitutional law to future lawyers!

Independent of whether he should be fired (a point on which I largely agree with you and appreciate your clear statement), having him teach constitutional law is clear academic malpractice (a broader norm not a legal category). His work clearly indicates that he can’t be trusted to accurately represent constitutional law to students.

So, give him teaching responsibilities he is qualified to carry out and let him publish and debate (he is quite able to find venues). I predict that as soon as attention shifts away he’ll scurry off to some source of wingnut welfare.

4

Seth Finkelstein 04.22.08 at 5:18 am

Didn’t the wingnuts get up in arms over Yale admitting a student who was the Taliban’s spokesman?

I wonder what they’d say if Fidel Castro was offered a professorship in Political Science.

5

Sherman Dorn 04.22.08 at 5:26 am

While it’s pretty late in my time zone, I your argument could as easily be turned around to point out that academics deserve special consideration precisely because everyone else should deserve these considerations too, and if academics don’t have these freedoms as researchers and society’s whistleblowers, no one else will ever have them, either.

But let me focus on specifics:

(4) strikes me as a nonissue, largely because I have never seen anyone hold to the straw-man argument seriously. For political reasons, if nothing else, academics have to continually explain the role of academic freedom. I think of it as public education. ;)

(5) assumes that academic freedom depends on a narrow consequentialist argument about the value of a particular piece of expression, a narrowness that is inconsistent with the arguments made above. If Yoo’s or my academic freedom depends on whether Henry Farrell finds our work valuable, then it’s not academic freedom but a Grant of Authority by Henry the Nth. If Henry thinks the idea is valueless or offensive… well, that doesn’t strike me as consistent with any definition of academic freedom.

(5) also tries to narrowly define “idea” by claiming that the issue is not Yoo’s ideas but what he wrote as an employee of the federal government. The only way one can see his writings as Not Ideas is if what you or I write is only an idea if it is written on a university campus or by someone employed at a campus.

6

Sherman Dorn 04.22.08 at 5:28 am

That should be “I think your argument…”

7

Sherman Dorn 04.22.08 at 5:30 am

Jed,

Would your argument hold equally well for a conservative if Boalt had hired Justice Bryer, or for a liberal if Boalt had hired Clarence Thomas? Somewhere in there you’re going to find people who think that those on the other end of a legal-theory spectrum are never going to be appropriate teachers, and I think that is as pernicious a threat to academic freedom as someone who wants Yoo fired for writing something unpopular.

8

alex 04.22.08 at 5:33 am

None of Yoo’s critics, to my knowledge, are arguing that he should lose his job for his ideas; rather that he should lose his job for actions that he took as a servant of the US government…

The actions of … having written down his ideas when asked for them.

9

Seth Finkelstein 04.22.08 at 5:36 am

Umm, there is an enormous difference between “ideas” and legal opinions in a formal government capacity. That difference should be apparent in every comment thread where people try to play lawyer.

I think that’s confusing people.

Would anyone’s mind be changed if Yoo literally had blood on his hands?

10

lemuel pitkin 04.22.08 at 5:36 am

Hey this is great!

Leaving aside the merits of the arguments (which I claim no particular insight into) arguments between smart people, working from broadly shared premises, who respect each other, are a thousand times more rewarding than the usual internet contempt-fest.

I half-suspect the reason genuine, respectful disagreement is possible here is that the subject impinges that practical wellbeing of the participants; but what if it is? Anyway you guys should have some policy of debating each other on a semi-regular basis.

11

lemuel pitkin 04.22.08 at 5:39 am

… as far of the substantive issue goes: I think this is a *hard question*. Academic freedom is a genuine good. So is stringing John Yoo up by his thumbs until time undetermined. How to weigh them, I don’t know.

12

Seth Finkelstein 04.22.08 at 5:49 am

hmm, if there can be “ticking time-bomb” hypotheticals, I’d say we can have a “blood on his hands” hypothetical.

Let’s say photographs are revealed showing John Yoo participating in prisoner torture sessions, along the lines of the Abu Ghraib photos (stranger things have happened). In order to avoid the question of criminal liability, Bush issues him a Presidential pardon (things like this have definitely happened!)

So, there would be no court actually ruling his activities were illegal.

Would this be sufficient to support firing him? On what FORMAL basis?

13

Bruce Baugh 04.22.08 at 5:52 am

I don’t really care that Yoo might have written something unpopular. I’d want him fired even if advocating and covering for war crimes were as popular as administration toadies claim. It’s not about the popularity, it’s about taking part in a conspiracy to violate fundamental laws of the land and civilized norms.

14

alex 04.22.08 at 5:54 am

Umm, there is an enormous difference between “ideas” and legal opinions in a formal government capacity.

No – a government lawyer like Yoo is just someone who writes down his ideas about the law in exchange for money. Nothing more, nothing less.

15

nick s 04.22.08 at 5:56 am

firing him would be to make the kind of judgment about his political activities that the University (or any employer) shouldn’t be in the business of making.

Looking it at from the other side: what judgement should the University make towards any students who argue that they cannot in good conscience take Yoo’s classes? There’s obviously a slippery slope to such arguments that has David Horowitz dwelling somewhere near the bottom, but it’s a question worth posing.

16

MZ 04.22.08 at 6:08 am

@bruce baugh:

I think something Brian Leiter wrote in his blog about the John Yoo incident is a good response to your comments:

“5. All right, then, forget about research misconduct, surely there is a question about whether Yoo committed a war crime, isn’t there? Torture is a war crime. Yoo was part of the institutional apparatus that authorized torture; indeed, he rationalized it. Why shouldn’t the university investigate the possibility that he is a war criminal?

The simple answer is that the University’s own rules do not authorize them to investigate such an allegation. The rule is quite clear about the circumstances under which the university might undertake a disciplinary proceeding related to criminal conduct by a faculty member: “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.” Why has the university required “conviction in a court of law” as a prerequisite for university disciplinary proceedings? For the obvious reason that universities are not equipped to investigate and prosecute crimes. Universities can not subpoena witnesses to appear, they do not employ a staff of forensic experts, they do not have on hand teams of criminal defense lawyers or prosecutors, and so on.”

17

magistra 04.22.08 at 6:14 am

As I’ve written before there are excellent pragmatic reasons why employers shouldn’t fire people for political activities that take place outside the workplace.

But what if those political activities give strong grounds for the suspicion that the person won’t do their job fairly? In a lot of public service jobs there is a requirement to deal with all clients/students etc equally regardless of sex, race etc. Suppose an Italian lecturer goes along to a Northern League rally and says that all immigrants are stupid, lazy and cheats. Are the immigrants in his/her class just going to have to put up with this unless they can prove that their treatment in class is biased (which is always hard to demonstrate conclusively)?

18

Bruce Baugh 04.22.08 at 6:20 am

Brian Leiter is making excuses for inactivity, mz. Others have done the documentary spadework on this already; the University’s code explicitly states that it’s not exhaustive, and it contains room to act on ethical concerns whether or not the legal system can be persuaded to deal with them as crimes.

19

Sortition 04.22.08 at 6:25 am

This is one of those problems that is intractable because its solution is outside of the framework assumed. Within the framework, some people – the intelligentsia: academics, government legal experts, etc. – have disproportional influence on public discourse and public policy.

Some people then become outraged when a small minority of those members of the intelligentsia use their privileged position to promote ideas are unpleasant to them. Those outraged people are then caught in a dilemma: should they advocate removal of such people from the privileged position (opening the door to removal of others who they view favorably) or not (and have those unpleasant ideas and people enjoy wide exposure with impunity)?

The answer, of course, is that no one – pleasant or unpleasant – should have a privileged position to begin with. Yoo, or any other person, should not be in such a position of power as to allow his personal ideas to influence public policy to a disproportionate degree. Yoo’s ideas, like all other ideas, should be represented according to their prevalence in the population.

It is the position of power that is the source of the dilemma, and so the dilemma cannot be resolved until such positions of power are eliminated.

(More of the same here.)

20

dsquared 04.22.08 at 6:32 am

I don’t think that writing torture memos is a “political activity” in the normal sense; it goes outside the ordinary bound of what one might consider to be normal politics. And I don’t see why a university should use the same standard of proof as a war crimes trial, or that a university is particularly incompetent to judge a case where the actual facts are pretty much undisputed.

21

Lisa 04.22.08 at 6:44 am

I was thinking, in light of a previous post where someone considers whether academic freedom predates free speech that philosophers from Descartes to Hegel and beyond shaped their own views in light of the absence of anything resembling academic freedom.

For them, we are willing to read between the lines.

Others, like Spinoza, simply had to pay the bitter price of the absence of freedom. Or, depending on how you tell the story, Galileo.

Maybe some repression would make us more interesting. And courageous! (Well, we’d be given the opportunity to be courageous and some of us might act on it.)

For that, though, we’d probably have to credential outside the academy. We’d have to listen to people who aren’t professors. Maybe that’s the obstacle for us. That, and the absence of any kind of patronage. We’d have difficulty in our 9-5 jobs finding time to write the offending arguments.

I kid, of course.

I do think the idea of making the case to the public for anything not leading to some life saving vaccine is hopeless. How do we explain to them how terribly impoverished they’d be without Spinoza? We’d be stuck with what the public is willing to accept and the range of is subject to both their disinterest in what academics do and political manipulation. In fact, we’d have to lie to them ourselves if we wanted them to think that the freedom of theorists to argue among themselves had any direct bearing on their well-being.

22

sharon 04.22.08 at 7:12 am

It’s not just ‘the public’. I saw a blog post by a scientist a few days ago which attacked a piece of social science research as a waste of time and money, and basically said that unless it’s preventing cancer (or otherwise saving lives), your research is worthless. If academics can be so ignorant, how can you expect any better from the general public?

23

Seth Finkelstein 04.22.08 at 7:50 am

Sigh … I know this is not going to work, but one more time:

US LEGAL COUNSEL IS NOT AN “IDEA”

There are numerous hacks running around promoting the bona-fide idea that torture-is-OK. There are very, very, few people in this world where a real legal war-crime accusation defense would be roughly “But HE said torture-is-OK!”.

If people cannot grasp this difference, further complexity seems beyond them.

24

Dave 04.22.08 at 7:51 am

@22: unfortunately for academics, especially in the humanities, that argument is not only pragmatically powerful, it’s also fairly well-grounded in reality. The social sciences I will leave up for debate, but much of what humanities academics do is of absolutely no benefit to society, and as ‘humanities’ shades over towards ‘arts’ that ‘most’ becomes ‘almost all’, and ‘no benefit’ becomes ‘pointless waste of money on self-indulgent nonsense’. This is why there is a virtual taboo on calling into question the value of other people’s research fields [as opposed to merely questioning their conclusions] – we’re in a hydrogen balloon, and that would be playing with fireworks…

25

Alex 04.22.08 at 8:25 am

Oh for fuck’s sake. If you can’t come up with a legal justification to fire the guy, the student body should just kick his arse. Look, he’s a fucking torturer.

26

James Wimberley 04.22.08 at 8:36 am

“Academic freedom is not a right”. Yes it is: the universal right to freedom of expression. The difference is that a normal relationship or contract of employment, making the employee the agent of her employer, normally binds the worker to act in the employer’s interests and accordingly restricts her right to speak against them. Academic freedom (sense 1) can therefore be read as an estoppel on a certain class of employers – universities and other educational and scientific organisations – to restrict their workers’ rights of speech in this way. Th estoppel has I agree to be grounded pragmatically.

In common usage academic freedom also (sense 2) refers to a different set of concepts about self-government. The distinction is brought out by the different scope: schoolteachers enjoy (some) academic freedom in sense 1, but not the self-government enjoyed by universities. Again, university autonomy has to be justified pragmatically as a means of protecting academic freedom in sense 1.

Yet again, academic freedom has the third sense of Lehrfreiheit: the academics’s right to teach not only how but what she wants. This right has to be restricted by the needs of the curriculum: elementary statistical methods must be taught to the freshmen even if no-one in the department want to do it. But a lecturer who is required to do only that year after year would have I think a reasonable claim that her sense 3 academic freedom was being violated.

PS: the preview is broken.(Firefox 2.0.0.14 under Windows XP)

27

Z 04.22.08 at 8:55 am

Even though there might not be rock-solid evidence that Yoo has committed crimes, his professional record casts very serious doubts about his qualifications to teach. I don’t know how hiring is done at UC Berkeley, but I would be seriously angry if I were a law student who was offered such a professor and even more so if I were a constitutional law scholar who was denied employment. As often about similar case, the crucial factor seems to me to be the opportunity cost.

I admit your point (4) is a cause of worry for me. Researchers in my field (pure maths) depend solely on the generosity of the public as the market value of what we produce is very elusive. On the other hand, the normal progress of our discipline widens inexorably the gap between what even a very well educated citizen can reasonably be expected to know and our current activities. In my experience, lay people have a very good to good opinion of my professional activity, but we often find ourselves quite defenseless when a sudden budget cut is justified by a “show me the fruits” line.

Which makes me think that discussion about academic freedom should probably incorporate discussion about financing research. After all, if you have perfect academic freedom but if only approved projects are financed, you are not so well, are you?

28

Bruce Baugh 04.22.08 at 9:06 am

I hate to ask anything like “Are you really serious about that drivel?”, but #27 tempts me to it.

But in any event, all of that is kind of irrelevant to the question at hand, which is whether a faculty member in their capacity as a member of the government should remain in good standing after supporting a program of torture.

I often disagree with Abb1, but this time I think he’s precisely on target. There is a clear academic blogger consensus that Yoo ought not lose tenure for these actions. We can safely assume that if he’d advised the president on how to strip away traditional tenure rights and processes in the name of national security, there would be outcry against that. Anything else? Since torture doesn’t warrant action, what – other than the preservation of tenure itself – would, exactly? Or does the academy have no obligation at all beyond compliance with the law, no independent ethical criticism of its members at all?

29

Bruce Baugh 04.22.08 at 9:11 am

Meh. I’m over the line – that’s not productive insulting in #29. I’m gonna bow out and go cool down.

30

Dave 04.22.08 at 9:47 am

@29-30: isn’t it rather the case that, under existing systems, there is no legal means of stripping Yoo of tenure, and that this is a simple matter of fact? Your outrage is doubtless ethically admirable, but it cannot alter the objective material factors, as the Soviet general staff used to say. If you wish to change the law, you may seek redress through that avenue, but you can guarantee that as soon as you do, it will be used against people like you by people you detest.

31

khr 04.22.08 at 10:26 am

This doesn’t have much to do with the main topoic of the discussion, but I feel it indicates some muddled thinking

We don’t, for example, want to deliberate with the grocer about the appropriate prices for oranges every time we want to pick up twelve of them. … – so that the decision to leave the price of oranges to market forces, … should be the product of democratic choice, and contingent on a continued democratic consensus that this form of delegation is appropriate.

First point:
In a lot of cultures it was and still is common practice to haggle over prices for groceries in the – literal – market. So there are people who ‘want’ to do it. Even in a modern economy, prices are often haggled over, e.g.when buying a car and asking the seller for rebates and financing terms.

Second point:
Market ‘Forces’ are not unpersonal, abstract forces like a ‘Force’ in Physics. Prices in the market are the results of peoples decisions: some peoples’ offer of goods at a given price and other peoples’ decision to buuy or not to buy at that price.

Third Point:
The democratic decision about defining prices is not between haggled and seller-defined prices (both are market prices arrived at through different processes), but between market prices (agreed between seller and buyer) and proces defined by other means (e.g.by state law)

Greetings
KHR

32

Brett Bellmore 04.22.08 at 10:46 am

[deliberate attempt at trolling, which ignored argument made in original post, removed]

33

Dave 04.22.08 at 11:14 am

I just said that.

34

James Wimberley 04.22.08 at 11:32 am

bruce baugh in #29: I’m sorry but I thought Henry was making some general points about academic freedom, not specifically about John Yoo. I don’t know what bearing my comment has on Yoo. On that, I’ve posted elsewhere.

35

Barry 04.22.08 at 11:33 am

And Brett’s come in to spoil the thread. Since it’s ruined at this point, I might as well say that Alex’s comment:

“No – a government lawyer like Yoo is just someone who writes down his ideas about the law in exchange for money. Nothing more, nothing less.”

reminds me about the old saying about German guilt for Hitler: “Hitler was but one man, armed only with a telephone.”.

36

rea 04.22.08 at 12:52 pm

In the US, at least, a criminal conviction requires proof beyond a reasonable doubt. Civil matters require proof merely by a preponderence of the evidence. This is why, for example, OJ Simpson could be aquitted of criminal murder charges, and yet held civilly liable for the murder of his victims.

If OJ Simpson had a tenured professorship, I don’t think academic freedom would require a university to retain him in that position. Similarly, that Prof. Yoo hasn’t been criminally convicted of war crimes ought not to prevent the University of California from concluding that it doesn’t want a war criminal on its faculty, and discharging him.

37

engels 04.22.08 at 1:01 pm

This post seems to be premised on the view that writing torture memos is just a ‘political activit[y] that takes place outside the workplace’. That seems very strained.

38

engels 04.22.08 at 1:03 pm

Actually, I should have said it seems absurd…

39

Katherine 04.22.08 at 1:11 pm

Yoo gave gov’t officials immunity to torture prisoners, knowing that they would use this immunity to actually go out & torture prisoners, and his actions had an important causal role in prisoners actually being tortured, in some cases fatally. He acted like a more powerful version of a mob lawyer. It’s these actions & their consequences that have people wanting him fired, not his “unpopular ideas”. And with all due respect to Henry: action taken as a lawyer is absolutely relevant to one’s fitness to teach at a law school. Just as I would think that a medical school would consider a doctor’s abetting in torture relevant to his fitness to teach at a medical school.

Like Henry, I’m not really seeing how academic freedom comes into it at all. You can make prudential arguments that you shouldn’t revoke tenure for criminal activity absent conviction & that you shouldn’t revoke tenure for ethical violations absent action from a bar association. But the faculty code of conduct seems to allow for it; the main argument for not doing so seems to be slippery slope stuff that isn’t really very convincing; I really don’t know why a factual investigation isn’t even considered as a serious possibility. Except, basically, academics protect their own, & preservation of tenure is therefore more important than anything else.

Would people also be saying that “academic freedom” protected this if he were actually in the room during the interrogation, or watching through a close circuit TV, and assuring them that each individual act of waterboarding, chaining a prisoner in a “stress position”, etc. was legal & they could continue? Would Henry consider that a “political activity” irrelevant to The Academy?

40

Katherine 04.22.08 at 1:19 pm

when I say: “immunity”–the existence of an OLC opinion, officially stating that the Department of Justice regards certain interrogation techniques as legal, probably makes it impossible to successfully prosecute & convict anyone in a U.S. Court for using those interrogation techniques. Which also probably makes it impossible to prosecute & convict John Yoo in a U.S. Court for participation in a criminal conspiracy with those people, regardless of the facts. And of course, for principled reasons of academic freedom, academics cannot even consider revoking tenure based on evidence of participation in a criminal conspiracy to torture prisoners, absent conviction.

Pretty neat system if you’re on the right side of it.

41

Katherine 04.22.08 at 1:24 pm

I don’t see what’s over the line about 28, either.

42

Dave 04.22.08 at 1:24 pm

@40: Well, yeah, that’s why they call it “power”. But you’re still missing the point, which is that if Yoo had his tenure revoked, he’d sue, and he’d win, and meanwhile every wingnut in the country would be jumping on a bandwagon for the abolition of the whole system, and they might win too.

Briar patch anyone?

43

Katherine 04.22.08 at 1:28 pm

And that’s what I mean about unconvincing slippery slope arguments. It’s possible that the fine print of his contract does NOT allow revocation of tenure for this reason, but no one actually knows it at this point; people are circling the wagons & not seriously considering an investigation or the intricacies of Berkeley’s code. Because, basically, they value their tenure more than some accountability somewhere for having participated in the fatal torture of prisoners.

44

engels 04.22.08 at 1:30 pm

if Yoo had his tenure revoked, he’d sue, and he’d win, and meanwhile every wingnut in the country would be jumping on a bandwagon for the abolition of the whole system, and they might win too

And after that happens, a dark stranger will bring you an unexpected gift…

45

alkali 04.22.08 at 1:54 pm

@30 (dave): isn’t it rather the case that, under existing systems, there is no legal means of stripping Yoo of tenure, and that this is a simple matter of fact?

No. See 18 (bruce baugh), which refers to a point I made here (or perhaps to a comment to the same effect by another person). Suffice it to say that Berkeley’s rules don’t purport to provide an exclusive list of the grounds for faculty discipline.

46

Barry 04.22.08 at 2:11 pm

“But you’re still missing the point, which is that if Yoo had his tenure revoked, he’d sue, and he’d win,….”

Maybe. Maybe not. Considering that (a) Berkeley could raise some serious issues of moral turpitude and proven incompetancy/criminality in carrying out his profession as a lawyer, and (b) Berkeley could drag in all sorts of embarrassing sh*t that he might not want made public,….

47

Dave 04.22.08 at 2:16 pm

You have evidence for this embarrassing sh*t, or are you just hoping?

Meanwhile, I still don’t see how anyone can hope to move against Yoo, or anyone else embroiled in the torture saga, until there has been sufficient of a revolution in the country to overturn the fact that *they were the govt* and *they made their actions legal by fiat*. Now, I like revolutions, I can’t wait [maybe January will bring to office a figure that will lead such a revolution]; but until you have your revolution, you’re just whining.

48

Patrick 04.22.08 at 2:18 pm

If I thought that Yoo sincerely believed that he was presenting a non frivolous legal case within his torture memos, then I would believe that he should retain his job. That is within the professional norms of an attorney.

I do not, however, believe that. I think he knew he was providing a frivolous legal argument in order to give political cover to the administration in the court of public opinion. As an attorney, I feel that keeping him in a teaching position would be much like giving a teaching position to a lawyer with a history of filing objectively frivolous lawsuits, or an accounting position to an accountant with a history of intentionally manipulating client accounts to cover up malfeasance, or to a doctor with a history of illegally prescribing himself unnecessary, but pleasurable, narcotics.

Whether that’s something that a university should handle on its own without the intervention of the bar association isn’t a question I can answer.

49

Katherine 04.22.08 at 2:29 pm

“they were the govt and they made their actions legal by fiat”

Doesn’t work like that. They may have made it impossible to prosecute but it sure as fuck wasn’t legal.

50

lemuel pitkin 04.22.08 at 2:53 pm

I thought Henry was making some general points about academic freedom, not specifically about John Yoo.

Another interesting thing: there are two cases that have highlighted this issue. One is John Yoo at Berkeley; the other — the occasion for the Rauchway post Henry is responding to — is Nadia Abu El-Haj at Columbia. Both involve calls from outsiders (outside the tenure process, not necessarily outside the university) to reverse a tenure decsion on political grounds.

Now I happen to think these calls are definitely wrong in the case of El-Haj, annd probably right in the case of Yoo. But the two situations are formally very similar. The difference is simply that I put “providing legal justification for the use of torture” on a different level from “questioning the historical basis of biblical claims about Israel.” Many people, obviously, consider the second as bad or worse than the first, so they come down differently. I am very glad that El-Haj’s critics lost, but I don’t know that they are “wrong” (well, on lots of second-order factual stuff, of course) so much as just have different commitments.

It’s a very good illustration of how some questions really can’t be resolved on formal or procedural grounds.

(and is preview ever coming back?)

51

"Q" the Enchanter 04.22.08 at 2:55 pm

I’ve gone back and forth on Yoo. Tentatively, I’m with Leiter (and Henry), on the basis of institutional incompetence to investigate violations of criminal laws or ethics rules peculiar to the profession, and also (to some extent) out of slippery slope concerns.

Just out of curiosity, though, Henry, what do you think should happen if the competent institutions (the California Bar, the DoJ) shirk?

52

lemuel pitkin 04.22.08 at 3:00 pm

academics protect their own

These two threads have seen a lot of variations on this statement, with the implication it’s a bad thing. But is it?

Isn’t it what, in any other context, we’d call solidarity?

53

Katherine 04.22.08 at 3:15 pm

lemuel, there’s also a rather relevant distinction from providing the legal justification for torture in law review articles or op-eds or books & doing so in secret OLC opinions which immunize executive branch employees from prosecution for acts of torture–not because of their reasoning, which is totally unconvincing & either bad faith or incompetent, but because of their existence–and foreseeably lead to people being tortured.

No one is calling for the revocation of tenure of professors for their advocacy for the legality of torture in op-eds & law review articles. Really, no one.

54

Henry 04.22.08 at 3:26 pm

dsquared, engels, katherine – I agree that this is in some ways absurd and grotesque. I had previously managed to convince myself, entirely to my own satisfaction, that Yoo’s actions didn’t fall under the rubric of academic freedom, and that that was that. It was only yesterday that I thought about what it meant for more general questions regarding the circumstances under which employers should be allowed to fire employees. I can’t envisage any generally justifiable rule (or at least any rule that doesn’t rest on a determination being made by some credible external body) which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable. And I think that a generally justifiable rule is what would be needed here.

q – my personal take on this is that there is a broad range of competent institutions for the purposes of determining whether or not war crimes have been committed. If a fair-minded court in another democratic country or a properly constituted international body asserts universal jurisdiction over this and finds him guilty, I think that Berkeley would be ethically justified, under my understanding of the relevant norms, in firing him, even if the chances of this court actually being able to apply sanctions directly are close to zero, given the realities of the international power system.

55

lemuel pitkin 04.22.08 at 3:32 pm

I can’t think of any generally justifiable rule which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable.

But in fact, some important decisions cannot be made on the basis of general rules, but require judgement about particular cases.

Scholars are right to defend academic freedom tenaciously. But at some point, your duties as a citizen — to not see egregious wrongdoing in your name go unpunished — outweighs your duties as a scholar. There’s no formal process to determine when that point is reached.

56

lemuel pitkin 04.22.08 at 3:35 pm

Oops, missed this bit:

political activities outside the workplace

This hopelessly muddying the issue. Please don’t do that.

Both normatively and practically, the defense of Yoo (and El-Haj) is on the rights they have specifically as academics. Nothing about workplaces generally is at stake.

57

Katherine 04.22.08 at 3:44 pm

I just plain don’t get the “political activities” thing. Again, does this apply if he’s in the room giving the okay? Say you have a doctor helping to revive an unconscious prisoner so he can be tortured again, or monitoring an interrogation–is this grounds for firing him or is this punishing him for “political activities”? Really? What if the doctor weren’t American; what if he did this for some foreign dictatorship? It’s bizarre to me. And the endlessly shifting justifications, most of them indefensible (I’m thinking especially of Edley’s) are not inspiring confidence that there is a principle greater than “you cannot revoke Yoo’s tenure because tenure is awesome and can never ever ever ever ever ever ever ever be revoked” at work here.

58

Eric Rauchway 04.22.08 at 4:06 pm

Henry, I basically agree with your 1-4. I don’t with respect to the specific case.

If you look at the bottom of the “resources” post, there are rules here. The law school dean’s say-so is not actually in the rules. There is however a committee with jurisdiction. A complaint of any form ought to go to them; they’re the first forum for such a case. (And anyone who wants to skip this committee should take note, it appears there’s nobody with the authority to act but them.)

What complaint should that form take? There has been a lot of talk about whether the advice constitutes a form of scholarly malpractice, which is already more-or-less covered under the faculty code. I’m not a lawyer, still less a committee of lawyers; it would take such a committee to make a judgment about such malpractice that would have any force under the aforementioned rules.

59

engels 04.22.08 at 4:13 pm

Serious ethical misconduct is usually thought to provide grounds for dismissal, and this can be true even when the misconduct occurs outside of work. An example which is often given is a supermarket cashier who fired after being caught shoplifting. A legal claim that the reasons for dismissal were ‘political’, because based on political views about the legitimacy of private property, etc, would not be taken seriously. I can’t see that there is more substance to the argument that the judgment of Yoo’s actions is a ‘political’ rather than an ethical one.

The only remaining issue appears to be whether it is right to take action in the absence of a criminal conviction. But here the fact that Yoo’s co-conspirators have (through the Military Commissions Act) effectively made it impossible for him to be properly tried and convicted in the US would argue strongly for Berkeley’s reaching a judgment on its own.

60

Katherine 04.22.08 at 4:19 pm

The MCA is not the main obstacle to prosecution–it didn’t do anything to the torture statute, just the war crimes statute. Yoo’s memo is an obstacle; also, presumably, DOJ lawyers don’t want it to be possible for DOJ lawyers to be prosecuted for their actions as DOJ lawyers any more than academics want it to be possible for academics to lose tenure.

Of course right now there’s a total lack of prosecutorial will because of the current administration. But the obstacles won’t disappear in 2009.

61

engels 04.22.08 at 4:26 pm

Katherine: thanks for the correction.

I think the point stands though: the fact that as things stand Yoo can not be brought to justice in a US court ought to argue strongly for Berkeley not insisting on a criminal conviction as a condition for firing him on the basis of his ethical misconduct.

62

Sebastian Holsclaw 04.22.08 at 4:27 pm

“Because, basically, they value their tenure more than some accountability somewhere for having participated in the fatal torture of prisoners.”

Well of course they do. Those people have already been tortured, they may still yet lose tenure.

I think Henry is completely right that: “I can’t envisage any generally justifiable rule (or at least any rule that doesn’t rest on a determination being made by some credible external body) which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable.”

But I’m not wholly convinced which way I should be swayed by that observation–that this means that Yoo is off the hook, or if it means that our idea of academic freedom has serious problems.

Also I think we need to refocus on Henry’s idea that there are two questions here.

Academic freedom is really about academic discourse and inquiry. It is hard to see how it applies here except for the fact that many in the academy seem to confuse it with an independent free speech right.

Free speech (as a concept not a constitutional right) in this context is about the ability to engage in expressive AND political activity (remember free speech isn’t just about protecting art projects, its justification is especially about protecting political expression). Yoo’s memos were government functions and so free speech doesn’t protect him from being prosecuted for them. But in terms of Berkely’s relationship with Yoo, the memos were politically expressive actions, and it is hard to see how you can fire him for that without being able to fire, for example, Tribe for his politically expressive activites vis-a-vis the Supreme Court.

63

Sebastian Holsclaw 04.22.08 at 4:30 pm

“Yoo’s memo is an obstacle; also, presumably, DOJ lawyers don’t want it to be possible for DOJ lawyers to be prosecuted for their actions as DOJ lawyers any more than academics want it to be possible for academics to lose tenure.”

This is also a good point. The generally held protection that government lawyers can’t be prosecuted for their written opinions is defended on exactly the same grounds as academic freedom.

64

lemuel pitkin 04.22.08 at 4:32 pm

Now I see the “outside the workplace” thing isn’t just a throwaway line. Henry is not arguing that Yoo is protected by academic freedom, but that in the absence of a finding by a court or bar assocaition, Yoo should suffer no professional repercussions whatsoever. Like Katherine, I find this bizarre.

To take the other side of Katherine’s hypotheticals — what if Yoo were advising a law enforcement agency on treatment of prisoners? or a multinational corporation on human rights? Would it still be wrong to fire him? Apparently so. Or is providing a legal justification for totrue a disqualifcation in those cases, but not — for some reason — for teaching law?

And then of course, there’s the small matter that we, in fact, live in a world where most people can and are be fired for “outside political activities.” A credible case can be made that academics in particular deserve greater job security. But Henry’s not arguing that, he’s suggesting that because in an ideal world, everyone would have tenure-like protections, there’s no need to defend the particular narrow form tenure takes in reality. It doesn’t work like that, tho. Something that’s deirable as a universal right isn’t automatically defensible when it’s arbitrarily restricted to a select few. By Henry’s logic, the fact that American prisons are a disgrace justifies the commutation of Scooter Libby.

Finally, Henry’s view that “political activity” should never have consequences in employment comes pretty close to the view that we wholly delegate our duties as citizens to the legal and political systems. Does Berkeley, and the people who make it up, have no independent duty to take a moral stand against torture?

Shorter: If someone like John Yoo worked for me in a position of responsibility and I learned he’d helped torture people, I would fire him instantly. I take it, Henry, that you would not?

65

Henry 04.22.08 at 4:33 pm

And the endlessly shifting justifications, most of them indefensible (I’m thinking especially of Edley’s) are not inspiring confidence that there is a principle greater than “you cannot revoke Yoo’s tenure because tenure is awesome and can never ever ever ever ever ever ever ever be revoked” at work here.

Katherine – it could well be that there is something like that happening here (as I note above, people can reasonably treat academics’ arguments as often being tinged with self-interest – but there is a secondary issue at stake which is what I am pushing, and what I think Eric is also saying in a somewhat different way. That’s the question of what rule we should have, if any, that would allow us to distinguish between cases where we should allow employers to fire people for engaging in arguably opprobrious activities and cases where we shouldn’t. Your argument seems to be that Yoo’s actions weren’t at all political – I disagree (Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration). A better formulation might be that they were political but profoundly objectionable – but then we need a criterion to distinguish between cases where political activities are profoundly objectionable and cases where they aren’t. In the absence of such a rule, I’m unconvinced that _employers in general_ will be able to distinguish between objectionable and non-objectionable activities in a fair way. It may be that there is a rule that can be employed to this purpose but I can’t think of what it is.

66

lemuel pitkin 04.22.08 at 4:43 pm

what rule we should have, if any, that would allow us to distinguish between cases where we should allow employers to fire people for engaging in arguably opprobrious activities and cases where we shouldn’t.

OK, there’s no hard and fast rule. But your solution is to to say that there should be no consequences for opprobious behavior, no matter how appalling,e xcept through the legal system. But why is that better than making these judgements on a case by case basis? — the lack of a general rule doesn’t mean that aren’t particular cases that are very clear.

Also, don’t you see any difference between *universities* and employers in general?

67

lemuel pitkin 04.22.08 at 4:47 pm

Also, I haven’t seen you argue why Berkeley shouldn’t regard the torture memos as showing that Yoo is unqualified to teach law.

68

Katherine 04.22.08 at 4:48 pm

“Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration”

This is yet another argument that depends on who the players are and not what they do. Yoo is: (1) a university professor (2) a political appointee chosen by the current administration, which represents one of the two major political parties in the U.S. (His victims are conveniently foreign, anonymous, not members of any university faculty or political party, & their lives have the approximate value of gravel as far as the U.S. is concerned.) So if you’re going to abet in torture, do it for a powerful in-crowd government & it’s a protected political activity. Presumably we don’t have similar qualms about employers firing or not hiring people for abetting foreign dictatorships in war crimes as infringing on political expression.

69

Katherine 04.22.08 at 4:58 pm

And, I mean, “abetting in fatal torture” v. “not” seems like a pretty relevant moral distinction in terms of what “political activities” are beyond the pale & which ones aren’t. I could go on about jus cogens here if it would help, but basically the argument seems to be: grossly immoral professional acts are none of the academy’s business unless they involve plagiarism, or some outside body will make the call for us, & tenure is awesome & should never ever ever ever be revoked. This would be one thing if I bought that it would be generally applicable, but you’ll pardon me if I just don’t. I flatly don’t buy that Berkeley would consider very very strong evidence of participation in gross human rights violations a matter of “academic freedom” or “political activity”, to the point where not a single academic would lodge a complaint to the appropriate committee or publicly say “yeah, he should lose tenure” if you changed the nationality of the victims & the institutional affiliations of the perpetrators.

70

lemuel pitkin 04.22.08 at 4:59 pm

To be fair, Katherine, I don’t think Henry’s position would be nay different if Yoo’s victims had been American or Irish. The heart of his argument is that an employer is and employer is an employer, and political activity is political activity is political activity. And since we can’t come up with any ironclad rules to disinguish UC-Berkeley from Wal-Mart, or facilitating torture from registering people to vote, we should treat them exactly the same.

71

Henry 04.22.08 at 5:02 pm

Lemuel – on this issue I actually don’t see that there is a crucial difference between universities and other employers. Universities are generally pretty good at respecting the (contractual) rights of tenured and tenure track employees. Their track record for protecting the rights of non tenure track employees is not so great. It may well be that the torture memos show that Yoo is unqualified to teach law, and in that case he should be fired obviously – but then it isn’t a question of academic freedom or workplace rights but of basic competence. The worry I have – and that I haven’t seen a good solution to – is that I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious. And without some sort of criterion of the kind discussed above, I am not sure we can get there.

And Katherine – if you genuinely believe that what I am making here is a ‘tenure is awesome’ argument, I’m not sure that there’s much point in engaging with you further.

72

Katherine 04.22.08 at 5:02 pm

also, if it IS a matter of either “protecting unpopular ideas” or it being improper to fire employees for outside political activities, presumably it isn’t restricted to already tenured professors, right? You shouldn’t refuse to hire or grant tenure to junior professors on such invidious grounds either, right?

73

engels 04.22.08 at 5:04 pm

Everything is political in a minimal sense. I’m also sure that Henry’s right that Yoo’s actions were politically motivated (‘Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration’). The fact remains that the grounds for condemning them are moral, not political. Torture, ordering or abetting the use of torture, is not a form of political expression. It is a moral crime.

74

lemuel pitkin 04.22.08 at 5:09 pm

I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious.

But employers alreayd have that right! They exercise it every day.

You can’t just deflect the specific case of Yoo onto general rights of employers, as if Berkeley saying “no torturers on our faculty” was equivalent to Wal-Mart firing someone for signing a peititon in support of a higher minimum wage.

(Well obviously you can, but you shouldn’t.)

75

engels 04.22.08 at 5:09 pm

I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious.

I’m pretty sure that no-one here thinks that employers should be permitted to fire people for actions that ‘the employers find morally opprobrious’.

76

Katherine 04.22.08 at 5:10 pm

Also: incompetent/unethical conduct in the course of practicing law is relevant to fitness in teaching students how to practice law. Just as incompetent/unethical medical practice, such as reviving people for future torture sessions, would be relevant to fitness in teaching students how to practice medicine. It would also, by the way, be relevant for other legal jobs–hell, the existence of unpaid parking tickets is ostensibly relevant. Very very strong evidence of criminal activity is also generally considered relevant even if it does not lead to conviction. Do you also think it would be invidious & unfair for employers to refuse to hire Prince Johnson based on that Samuel Doe video? After all, it was politically motivated! And he’s never been convicted! And he’s a Senator!

77

engels 04.22.08 at 5:14 pm

Just to be clear: I may be wrong, but my understanding is that in the UK at least as stated above ethical misconduct is considered fair grounds for dismissal, even when it occurs outside of work, and especially if it casts doubt on the employee’s suitability for the job in question. Eg. as stated above a supermarket cashier could be fired after he was found to have been shoplifting at the weekend because this gives evidence of a lack of honesty which makes him unsuitable for his role.

78

engels 04.22.08 at 5:16 pm

(And the point in #75 is that whether the action in question was in fact ‘unethical’ in a sense that would give grounds for dismissal would be an objective question, ultimately to be decided by the courts, not left to the judgment of the employer.)

79

Michael Bérubé 04.22.08 at 5:18 pm

Very late to the (fascinating) party, Henry, and I may just be weary from the Pennsylvania primary, but I’m not understanding why academic freedom shouldn’t be considered a right. It seems to me that it exempts academics from the at-will employment doctrine (for very good reasons you’ve already covered) and gives professors strong guarantees of due process, and I don’t see what follows from saying that there’s no good argument for the quasi-claim that it is a “right.” Now, in Yoo’s case, “due process” appears to require a conviction in a court of law — and not just any conviction, but one which clearly demonstrates unfitness to continue as a member of the faculty. Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law. I’m inclined to wait for that conviction first, lest we head down that slippery slope at the bottom of which He Who Shall Not Be Designated By His First Initial and a Drastic Truncation of His Surname awaits, but I don’t entirely know what I think about Yoo’s case yet. I’m just curious as to what role your paragraph (1) plays in this argument.

80

Katherine 04.22.08 at 5:23 pm

What I think is attributable in part to “tenure is awesome” is the fact that, as I said above, “not a single academic [will] lodge a complaint to the appropriate committee or publicly say “yeah, he should lose tenure”. Among academics, I see a range of views from: “Yoo should definitely keep his job at Berkeley!” to some degree of agonizing. The justifications for this vary & most of them are pretty darn unconvincing–I understand some to some degree but they certainly aren’t enough to explain the degree of consensus. And how persuasive people with otherwise extremely similar views on torture, freedom of expression, academic freedom, etc. seem to find them seems ASTONISHINGLY well correlated with academic status. It’s the degree of consensus that I can’t find any explanation for other than academics protecting their own. You can cast that as an individual charge of bad faith you like–people seem to find doing so incredibly convenient in this argument–but it’s really not.

81

Henry 04.22.08 at 5:23 pm

Lemuel – as my earlier post on the topic makes clear employers do have that legal right – but I am writing about shoulds, not ises. My interest in this issue comes in part from having done some work during my grad student days on West Germany’s habit in the 1970s and 1980s of firing kindergarten teachers etc who were members of the Communist party. Clearly the state education ministries had the ‘right’ to do this under German law – but whether they had the right to do this in a broader sense is a very different matter. And engels – the exact point is that Berkeley, as an employer, is being asked to decide that what Yoo did is morally opprobrious. If the employers don’t decide, then who does?

82

Henry 04.22.08 at 5:26 pm

I should also add that I will be away Doing Other Stuff for a few hours …

83

Katherine 04.22.08 at 5:28 pm

Oh and Michael Berube: talk about “waiting for a conviction” is insulting to the intelligence of people who are fighting for accountability and, you may have noticed, LOSING because of the corruption of the Department of Justice. I wouldn’t so much care about Berkeley providing accountability if I thought there was any chance of it in the courts. If tenure trumps accountability or justice anywhere, fine, but don’t pretend to be merely passive observers waiting patiently for DOJ to act as they surely will if crimes have been committed.

84

Sebastian Holsclaw 04.22.08 at 5:32 pm

As for the topic of whether or not Yoo’s memo hits “basic competence”, see Mark Graber here on Balkinization (which is on your blogroll, and I don’t think Graber could be fairly characterized as right-wing).

The memo is a defensible bleeding edge ‘interpretation’ given the whacked out state of what passes for interpretation of Constitutional law. (That statement should be read as an indictment about the state of Constitutional law, not an endorsement of the Yoo memos). The fact that it is also horrific, should give pause.

85

Katherine 04.22.08 at 5:38 pm

Actually, I may have misread berube’s post…in general, there is a total unwillingness to acknowledge the obstacles to prosecution caused by the fact Yoo’s misconduct occurred while he was working for the U.S. Department of Justice & the organization responsible for prosecution is the U.S. Department of Justice. It’s not just a question of whether the prosecution can make its case & the jury will vote to convict–the prosecution may not want to make its case, &/or may be unable to do so because of the very memo that people are objecting to. But I’m not sure berube’s post is actually an example of this unwillingness or just leaves that to one side.

86

Michael Bérubé 04.22.08 at 5:40 pm

talk about “waiting for a conviction” is insulting to the intelligence of people who are fighting for accountability and, you may have noticed, LOSING because of the corruption of the Department of Justice

I have indeed noticed, Katherine. But if you’re arguing that Berkeley should go ahead and fire Yoo now because of the corruption of the DoJ, mightn’t you be insulting the intelligence of people who are aware of the fragility of human institutions, and who realize that this might set a nasty precedent for packs of right-wing attack dogs who will insist that X (and everyone like her) be fired without due process because we can’t trust all those liberal activist judges who don’t respect the intention of the framers?

And you’ll have to look elsewhere for someone who claims that “tenure trumps accountability or justice anywhere,” because I sure as hell didn’t say it.

87

Katherine 04.22.08 at 5:41 pm

Sorry, Sebastian, you’re going to need to come up with something better than “even the liberal Mark Graber”, who makes assertions rather than arguments; you would actually need to defend Yoo’s treatment of Youngstown & the various Article I clauses he either ignores or makes ludicrous arguments about.

88

Barry 04.22.08 at 5:42 pm

“Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law. “

Posted by Michael Bérubé ·

I’m not saying that it’s impossible that Yoo is ever convicted, just one step less likely than Bush and/or Cheney being convicted.

Any argument which assumes that Berkeley should wait for a conviction is tantamount to having Berkeley wait for Yoo to be struck by lightening.

89

Brian 04.22.08 at 5:42 pm

RE: #65

If latecomers are still welcome at this party, I’d like to disagree with Henry that Yoo’s actions were political. As I understand this case, Yoo wrote a DOJ memo which willfully omitted legal precedent (or whatever) that argued against the desired outcome, namely that the US government be allowed to torture people. Perhaps this is in some sense a political act, but it is much more importantly a professional act, and one that breached the ethical standards of Yoo’s profession. So I don’t think this case really falls under the rubric of academic freedom or political activities outside the workplace. It was, in fact, his professional conduct inside the workplace that is in question.

90

Katherine 04.22.08 at 5:45 pm

I’m not arguing that Berkeley should go ahead & fire him now. I’m arguing that Edley’s knee jerk, inaccurate defense, & the general circling of the wagons & lack of anyone’s willingness to say to the relevant committee: maybe you should seriously take a look at this, is more a function of academics protecting their own than to their awareness of the fragility of human institutions being more finely honed than non-academics’. And the legitimate concerns might be more convincing if they weren’t accompanied by so very many tendentious arguments from Edley, Leiter, etc. But maybe this is just a question of irregular adjectives.

91

Michael Bérubé 04.22.08 at 5:45 pm

there is a total unwillingness to acknowledge the obstacles to prosecution caused by the fact Yoo’s misconduct occurred while he was working for the U.S. Department of Justice & the organization responsible for prosecution is the U.S. Department of Justice

Fair point. Sorry to have crossed in the thread.

Personally, I think people who advocate or carry out torture should have some visited on them, so that they can learn all about it. I’m trying to balance that raw gut feeling against my belief in proceduralism. But you’re right, proceduralism here is all tangled up in recursive knots.

How about we try Yoo in International Criminal Court? Sure, the U.S. doesn’t recognize it, but most of Crooked Timber does, and we can ask UC – Berkeley to join us.

And I see I’ll have to wait long hours before I find out why we shouldn’t think of academic freedom as a right. . . .

92

Patrick 04.22.08 at 5:50 pm

re: the idea that this happened “outside of work”

Does it matter that it happened DURING work, but for a different employer?

If I hired an associate attorney, and then later found that he’d engaged in particular egregious and willful malpractice while working for a previous law firm, I might fire him for it. Is that wrong?

93

Brian 04.22.08 at 5:54 pm

re #92

No! But would it matter if he had already made partner by the time you wanted to fire him??

94

Katherine 04.22.08 at 5:56 pm

btw, does Berkeley normally grant law professors leave to go work for another legal employer? Could a tenured professor go on a leave of absence & just go & get rich at a firm for a couple of years? Or do they only allow that for “public service” work such as OLC because it’s thought to be helpful & relevant & beneficial to the university in some way?

95

lemuel pitkin 04.22.08 at 5:58 pm

My interest in this issue comes in part from having done some work during my grad student days on West Germany’s habit in the 1970s and 1980s of firing kindergarten teachers etc who were members of the Communist party.

But even if we don’t know exactly where the line is separating membership in the Communist party from abetting torture, can’t we agree that there is such a line, and they are on opposite sides of it?

And how about my other question — if you employed someone in a position of trust, and learned that he had a direct role in torture comparable to Yoo’s, would you fire him?

96

engels 04.22.08 at 5:59 pm

Henry (#81), an employer is entitled to decide on whether an unethical action amounts to gross misconduct but that doesn’t mean that anything goes, because that decision could be rejected in court. As long as the courts are clear on what does in fact amount to gross misconduct (as I believe they are) then I don’t think there is the slippery slope that you seem to think there is.

(At least, this is how I think things work in the UK…)

97

Eric Rauchway 04.22.08 at 6:01 pm

lack of anyone’s willingness to say to the relevant committee: maybe you should seriously take a look at this

Katherine, with respect, I don’t think you know there is such a lack. I’m pretty sure there is not. I believe one would have to be a Berkeley professor to say something, and one would have to be a member of the committee to know whether anything has been said.

98

lemuel pitkin 04.22.08 at 6:03 pm

I think people who advocate or carry out torture should have some visited on them, so that they can learn all about it. I’m trying to balance that raw gut feeling against my belief in proceduralism. But you’re right, proceduralism here is all tangled up in recursive knots.

Right, exactly. Balance. Which Henry badly needs, having gone so dangerously far out on the proceduralist limb.

99

engels 04.22.08 at 6:15 pm

Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law.

To be clearer, the point I was trying to make was that Berkeley should reach a judgment of its own, based on the knowledge that Yoo will never be convicted in a court of law in the US, and this for reasons that have nothing to do with justice and everything to do with the failings of the current US system, due in no small part to the machinations of people like Yoo.

100

Katherine 04.22.08 at 6:20 pm

Thanks for the clarification Eric. For some reason I assumed that would be public knowledge but maybe not–& that would make sense at the early stages.

Out of curiousity–I mentioned Prince Johnson above. He’s a Liberian warlord who was videotaped some years ago supervising the torture of former Liberian ruler Samuel Doe. He now denies this but the video speaks for itself. Johnson has never been convicted or penalized by any competent authority for this; he is now a member of the Liberian Senate. I don’t think he’s likely to ever be prosecuted for a variety of reasons.

Assume, implausibly, that he is a tenured professor at Berkeley when the video becomes public. Is it grounds for revocation of tenure? Or would that be wrong? (Either because it penalizes him for political actions & he hasn’t been convicted of any crime; or because it simply has nothing to do with his scholarship & the university isn’t competent to make these sorts of moral judgments and he hasn’t been convicted or judged guilty by any outside party.)

Many of the justifications for not revoking Yoo’s tenure–& actually, the ones I find most convincing, because they’re the only ones that acknowledge people’s true objections to Yoo’s behavior instead of pretending that he “wasn’t a decider” & just advocated “unpopular” but protected ideas–would seem to imply that Johnson’s tenure ought not to be revoked in this hypo: it’s got nothing to do with his research or teaching, he did this off the clock, he hasn’t been convicted, etc. Do people actually believe this? And is anyone who disagrees showing how little they value academic freedom?

You can argue that cases of honest-to-god faculty participation in war crimes, atrocities, torture, etc. are going to be so rare (after all, this Prince Johnson thing isn’t a very plausible hypo.) that it’s not worth any chilling effect & potential for a slippery slope. But the fact that these cases are so rare makes me wonder whether the slope really has to be very slippery–& while I don’t want a chilling effect on academic debate, we could frankly use a little chilling effect on the sorts of memos professors write at OLC.

101

Dave 04.22.08 at 6:22 pm

So, again, after all that, it boils down to “we [unspecified group of offended left-liberals] think it’s appalling Yoo is at Berkeley, and that Something Really Ought to be Done About It. But since, in the real world, it won’t be, we’ll just vent….”

102

Sebastian Holsclaw 04.22.08 at 6:24 pm

“you would actually need to defend Yoo’s treatment of Youngstown & the various Article I clauses he either ignores or makes ludicrous arguments about.”

No I don’t, I can make the point that modern Constitutional theories of interpretation are so dangerously free-form that “ludicrous arguments” is merely a political judgment not a legal one.

Adn the Youngstown precdent is notoroiously all over the place. There are problems with how ’emergency’ was characterized by the administration (steel stockpiles were enormous at that point), it wasn’t clear about the neccessity for Congressional authorization (either in or outside of an emergency case), the later Zemel cases issues, not to mention the fact that the Supreme Court didn’t see any point in bothering with Youngstown in any of its recent war-on-terror cases.

And of course his memo is ridiculous to a textualist, or anyone with the the slightest understanding of how the Founders set up the separation of powers. But that has precious little to do with Constitutional theory. For as much as you hate textualism, it has a much easier time dismissing Yoo’s arguments as ridiculous than modern approaches do. Modern approachs have to worry about whether or not evolving standards of necessity expand Presidential power in times of terrorist ‘crisis’, whether standards in one area of the Constitution can ‘evolve’ enough to contradict other areas, and other such legal mumbo-jumbo. The state of Constitutional law is crappy. That sucks. But judged on the standard of the ridiculous muddle that it really is, the memo is on the edge of defensible–but it is the inside edge.

103

John K. Wilson 04.22.08 at 6:27 pm

The flaw is in proposition (1). Academic freedom is a right. It is not a special right of college professors, but a right for anyone involved in the job of doing teaching and research at a college. Speaking of pragmatic justifications for academic freedom always leads us to sacrifice the freedom of unpopular causes. What we need instead is to have a principled defense of the right of academic freedom.

104

Katherine 04.22.08 at 6:28 pm

I don’t hate textualism & don’t really have any interest in your hijacking this thread to score the usual points about activist judges & originalism.

105

Sebastian Holsclaw 04.22.08 at 6:29 pm

“But the fact that these cases are so rare makes me wonder whether the slope really has to be very slippery—& while I don’t want a chilling effect on academic debate, we could frankly use a little chilling effect on the sorts of memos professors write at OLC.”

Or arguably it could be that academic tenure has done such a good job of squelching the impulse to fire professors for political reasons that it almost doesn’t happen anymore, but would if we let it.

(I say this hypothetically. On the merits I suspect that we could do with a lot less in the academic protection front and still be fine. But the lack of cases given the existence of tenure et al. can’t really be used as an argument against tenure. Maybe it means that tenure is super-duper good at protecting academic freedom in a totally, completely necessary way.)

106

Michael Bérubé 04.22.08 at 6:33 pm

Engels @ 100: thanks for clarifying. Which leads me to Dave @ 102: what, you can’t think of ways of punishing Yoo that don’t involve firing him? No one says that tenure guarantees that you be assigned specific courses of your own choosing. The good folks at Berkeley might do well to get creative and assign Yoo to a couple of sections of “Torture: Theory and Practice.” That would look good in the course catalogue and on Boalt’s website.

As for the venting: the trick here, it seems to me, is to think of good reasons to strip someone of tenure — for profound moral turpitude, say — without giving the Daniel Pipes Brigade a handy stick with which to beat every Middle Eastern Studies specialist they don’t like.

107

Katherine 04.22.08 at 6:36 pm

“These cases are so rare” meaning “cases of a tenured professor being implicated in war crimes are so rare.” I don’t understand how the small # of cases would be attributable to tenure.

108

lemuel pitkin 04.22.08 at 6:39 pm

katherine-

Henry’s argument is a bit different from what you’re presenting. It is that while you or I object to murder and torture, other people don’t; meanwhile some people object to things that we don’t, like being a member of the Communist party.

So, since there is no consensus on what is objectionable, our only choices are either (a) give employers unlimtied discretion to fire people for any “moral” grounds, however spurious, or (b) restrict all moral sanction to courts, professional assocaitions, or other duly accredited bodies. Since (a) is unacceptable, we’re left with (b).

In short, the procedural issue trumps the moral one.

So to convince Henry that Berkely should fire Yoo, you need to either concinve him that a university is different in some relevant way from other employers (see his 71) or that our objection to torture is different from West German schools’ objections to Communist party memebrship. I haven’t been able to do either, but maybe you can.

109

lemuel pitkin 04.22.08 at 6:42 pm

(Incidentally, I think an argument like Henry’s would be correct in some cases — Yoo might deserve prison but you or I still shouldn’t kidnap him and lock him our basement. Just not this one.)

110

Sebastian Holsclaw 04.22.08 at 6:45 pm

“I don’t hate textualism & don’t really have any interest in your hijacking this thread to score the usual points about activist judges & originalism.”

Of course not, we’ve found a case where modern approaches are going to have serious difficulty tying themselves in knots to avoid saying things like “it can’t mean that because ‘insert historical argument which would never be permitted in other contexts [here]'”, but which textualists find almost trivially easy, certainly wouldn’t want to talk about that.

My point remains, Youngstown was a mess with 5 seperate opinons giving almost contradictory advice if taken seriously, there wasn’t nearly the close nexus between Presidential action and stated aim as you find in the torture memos, and the Presidential powers are vague in some pertinent areas.

The Yoo memos are fine examples of the art of lawyering into what you want by stretching a sort-of-vague phrase here, creating ambiguity out of thin air there, and leveraging it into what you want for the conclusion.

If that brings disrepute to that style of ‘analysis’ I’m thrilled. But that state of analysis is in fact how things operate and that state of analysis is how an academic gets judged. On that morally bankrupt scale, Yoo is fine.

If you want to say that we should use another scale, I’m completely with you.

111

lemuel pitkin 04.22.08 at 6:49 pm

No one says that tenure guarantees that you be assigned specific courses of your own choosing. The good folks at Berkeley might do well to get creative and assign Yoo to a couple of sections of “Torture: Theory and Practice.”

This is irrelevant to Henry’s argument, tho: He would just say that we don’t want employers punishing workers for their political beliefs through bad job assignments.

As long as you accept Henry’s framing that Yoo’s work at OLC was just an instance of “political activity” and his position at Berkeley is just an instance of the employer-employee relationship, you have to conclude that his role in toturing people should have no consequences at all.

112

Katherine 04.22.08 at 6:51 pm

It would’ve been a good idea for Yoo to expound on the ambiguity in Youngstown instead of failing to cite it then, but I don’t think any of the opinions allows for the “if the president does it during wartime it’s not illegal” argument. Anyway, the worse offense is ignoring the Article I enumerated power clauses entirely in the 2002 memo & the treatment of them in the 2003 memo.

In any case, academics aren’t judged on the same scale; I wish they are. People do at least recognize that judges’ decisions have actual consequences, whereas legal academics are given points for being “provocative” & “original” even when their ideas are considered provocative & original because of how very wrong & disastrous they are. Yoo was given tenure at Berkeley because of his horrendous theories, not in spite of them.

113

Sebastian Holsclaw 04.22.08 at 6:58 pm

““These cases are so rare” meaning “cases of a tenured professor being implicated in war crimes are so rare.” I don’t understand how the small # of cases would be attributable to tenure.”

So you have a morally reprehensible objection then. What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?

I’m completely with you on the merits of wanting Yoo punished. And much as we disagree with each other, I would trust you personally in charge of the kind of procedure you want to set up. But procedurally you seem to want to set up power that I wouldn’t trust a lot of politicians and university administrators with.

114

Katherine 04.22.08 at 7:08 pm

You can draw lines easily enough: only horrible harms to other human beings, committed on the job in the profession you are being hired to teach, in violation of professional ethics. But an overwhelming majority of academics seem to be of the mind that there’s no current tenure norm about that even if the Berkeley Code allows for it, & allowing it starts you down the slippery slope & soon you’re drumming out gay people.

115

Sebastian Holsclaw 04.22.08 at 7:21 pm

So a pro-life advocate should be considered to have a legitimate case against the tenure of a teaching doctor who performs abortions?

116

engels 04.22.08 at 7:30 pm

What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?

No, because none of these things are in fact immoral, let alone amount to gross ethical misconduct. Perhaps some people believe they do, but they are simply wrong. Otoh some people believe that physically assaulting members of their families is quite permissable. They turn up in court and they say so and they are told that they are wrong. Is this really so difficult?

117

lemuel pitkin 04.22.08 at 7:33 pm

So a pro-life advocate should be considered to have a legitimate case against the tenure of a teaching doctor who performs abortions?

I guess this is intended as a sort of “gotcha!” debating point, but it’s actually a good question. I guess one reason it doesn’t worry me is that I think the consensus in our society against torture is much stronger than the consensus against abortion or gays (in fact the latter two are minority positions, while an overwhelming majority finds torture reprhesnible). So I don’t think some notion of (near-)universal standards of decency is all that problematic.

But if we really have to choose between a world in which no university will employ John Yoo, and — let’s say — a Catholic university refuses tenure to an outspoken atheist, versus one where both Yoo and and the atheist get tenure… is it so obvious the second case is preferable?

118

Katherine 04.22.08 at 7:34 pm

He could file the complaint, sure, & should not be surprised when it isn’t successful because the medical professional consensus & medical faculty consensus is that it’s not unethical to perform abortions. I mean let’s face it: the danger of faculties throughout the land suddenly seizing the chance to fire their gay, pro-choice members if “moral turpitude” clauses become enforceable is not, in fact, real.

You can argue that this sort of thing is better handled by professional associations, but I don’t even know if the Pa. Bar considers Yoo’s conduct at OLC to be within its jurisdiction–I know people who worked at OLC before passing the bar–and law professors don’t actually need to be licensed to practice law. There is a DOJ office of professional responsibility, but they’re part of DOJ & possibly compromised. I’ve heard the argument that being disbarred is quite different from never being licensed in the first place & that’s where any process ought to start–that’s what the National Lawyer’s Guild actually argued, I believe.

119

lemuel pitkin 04.22.08 at 7:38 pm

none of these things are in fact immoral

But, Engels, Henry and Sebastian think that kind of claim is off-limits — we can’t say whether anything is moral or immoral until we first establish who gets to decide.

It’s not an unreasonable or unserious argument, even if we don’t accept it in this particular case. (I would adopt something very close to the Farrell/Holsclaw position if e.g. we were debating humanitarian interventions.)

120

lemuel pitkin 04.22.08 at 7:40 pm

Engels, Henry and Sebastian

Oops, Engels is who the comment is addressed to, it’s only Sebastian and Henry to whom I’m imputing views.

121

engels 04.22.08 at 7:46 pm

we can’t say whether anything is moral or immoral until we first establish who gets to decide

Er, what?

It’s not an unreasonable or unserious argument

I don’t think I said it was. In any case, I don’t really don’t understand what you are trying to say.

122

Sebastian 04.22.08 at 8:08 pm

“What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?

No, because none of these things are in fact immoral, let alone amount to gross ethical misconduct. Perhaps some people believe they do, but they are simply wrong.”

Argh. I’m well aware of the fact that they aren’t immoral. And I’m not a moral relativist, so I agree that such people are wrong. But like it or not, lots of people think homosexuality is wrong. Certainly enough people think it that in some universities in some states that it could be an issue. You are talking about creating a system where we would have to worry about it. Maybe it is worth it, maybe it isn’t. But you shouldn’t pretend that isn’t what you are opening the door for just because that isn’t how you would personally use it.

“I guess one reason it doesn’t worry me is that I think the consensus in our society against torture is much stronger than the consensus against abortion or gays (in fact the latter two are minority positions, while an overwhelming majority finds torture reprhesnible). So I don’t think some notion of (near-)universal standards of decency is all that problematic.”

I’m pretty sure you are wrong about this. Support for torture is one of the very question-context-sensitive polling areas (especially ticking bomb hypotheticals that get spun into crazy and unnecessary policies). And the Democrats are clearly not confident enough to make it a very big deal.

123

Katherine 04.22.08 at 8:25 pm

Torture is a felony, and abortion isn’t.

Why require conviction of a felony as opposed to compelling evidence of relevant unethical conduct?

1) Someone convicted has pled guilty or been found guilty beyond a reasonable doubt in a fair trial w/ due process, eliminating factual ambiguity.
2) The fact that conduct is criminal represents societal consensus that it is seriously immoral.

Well, it’s possible to imagine situations where there’s compelling & not-really-disputed evidence of seriously immoral & illegal conduct (+/or gross violations of the ethical norms of the field which you were hired as a professor in), & no conviction because of corruption among prosecutors, or statutes of limitations, or other reasons that don’t go to whether the underlying conduct occurred & was criminal. And I’m not sure the sky would fall if universities had the power to revoke tenure in those cases.

124

engels 04.22.08 at 8:29 pm

But like it or not, lots of people think homosexuality is wrong. Certainly enough people think it that in some universities in some states that it could be an issue.

The practical question is not how many people think that homosexuality is wrong, but how many think that it is such a serious wrong (on a par with authorising torture?) as to amount to gross ethical misconduct on the part of an academic, which would provide grounds for her dismissal. My answer to that would be: not many, and, as I said before, those that do are wrong.

I do agree that any system that allow complaints to be brought against employees based on their conduct is open to abuse but I share Katherine’s confidence (#119) that in this case it would not be substantial in practice.

And yes, I am aware that a regrettably large number of people in the US are wrong about the morality of torture. However, the fact that it is morally wrong and is a serious crime which is everywhere forbidden by non-derogable norms of international law remains true in spite of this.

125

Sebastian Holsclaw 04.22.08 at 9:35 pm

Why require conviction of a felony as opposed to compelling evidence of relevant unethical conduct?

1) Someone convicted has pled guilty or been found guilty beyond a reasonable doubt in a fair trial w/ due process, eliminating factual ambiguity.
2) The fact that conduct is criminal represents societal consensus that it is seriously immoral.

Correct for the most part, though there has been increasing felony creep of late but that is a different discussion.

Well, it’s possible to imagine situations where there’s compelling & not-really-disputed evidence of seriously immoral & illegal conduct (+/or gross violations of the ethical norms of the field which you were hired as a professor in), & no conviction because of corruption among prosecutors, or statutes of limitations, or other reasons that don’t go to whether the underlying conduct occurred & was criminal. And I’m not sure the sky would fall if universities had the power to revoke tenure in those cases.

It is indeed possible to imagine such a situation, but in this case it looks a lot more like you are tailoring rules after the fact to catch the evil-doer that you want. So you are drawing up a situation to catch this particular guy as if it was some sort of general principle without seriously worrying about any of the other ramifications of tinkering with the system (especially allowing tinkering with the system in an post-facto way). While I personally think that tenure is well overrated in terms of societal benefits (I fully understand why tenured professors love it) I’m at core a conservative so I’m not into wholesale tinkering just to capture injustices that represent a vanishingly small number of cases.

We often hear that it is better 10 guilty go free than one innocent man go to prison. Some injustices have to be lived with in human systems. Chasing down this particular injustice in this particular fashion doesn’t seem productive. By all means work to get Yoo convicted. But if you can’t, the tenure system isn’t really designed to deal with it.

126

Sebastian Holsclaw 04.22.08 at 9:35 pm

Hmm, the blockquoting didn’t work there. Sorry.

127

Katherine 04.22.08 at 9:42 pm

“It is indeed possible to imagine such a situation, but in this case it looks a lot more like you are tailoring rules after the fact to catch the evil-doer that you want.”

I don’t know, my instincts for the Prince Johnson hypo & the Nazi lawyers hypo & the doctors reviving people to be tortured hypo & basically any comparable situation I can come up with are exactly the same–& I’m not finding anyone eager to either explain why they WOULD deserve to keep tenure or come up with a real way to distinguish those cases. And it’s not like I’ve changed my views from before the Yoo case; it honestly didn’t occur to me that this situation could even arise. Maybe I’m just articulating exactly what it is that I object to in generalized terms, and you’re accusing me of ex post facto rationalization because that’s what you conclude about most of my opinions.

128

Sebastian Holsclaw 04.22.08 at 9:47 pm

“Maybe I’m just articulating exactly what it is that I object to in generalized terms, and you’re accusing me of ex post facto rationalization because that’s what you conclude about most of my opinions.”

Maybe so. I suppose the other readers can judge for themselves better.

But it is weird for you to use that type of defense and also use “It’s the degree of consensus that I can’t find any explanation for other than academics protecting their own. You can cast that as an individual charge of bad faith you like—people seem to find doing so incredibly convenient in this argument—but it’s really not.” as an explanation of why other people think what they think.

So I’ll just repeat the substantive point you didn’t bother with:

We often hear that it is better 10 guilty go free than one innocent man go to prison. Some injustices have to be lived with in human systems. Chasing down this particular injustice in this particular fashion doesn’t seem productive. By all means work to get Yoo convicted. But if you can’t, the tenure system isn’t really designed to deal with it.

129

Katherine 04.22.08 at 9:48 pm

Also, even having the conversation actually seems useful to me. Maybe Berkeley won’t go so far as to revoke his tenure, but maybe they can NOT have him teach non-elective courses that first years can’t opt out of, & maybe academics will decide it’s actually okay to let the torture memos influence their treatment of him at cocktail parties, and to call the memos what they are without throwing in a bunch of disclaimers about how personally they like John Yoo & isn’t it wonderful how we’re having a civil, respectful, openminded debate about whether it was or was not okay to write those memo, as if it were just another “provocative” law review essay instead of having led to people being tortured to death. Maybe it would be good for people to react strongly when Dean Edley makes false statements in his eagerness to defend Yoo. The norm against the U.S. gov’t torturing people has gotten extremely shaky; I’m open to all avenues in shoring it up. I doubt Berkeley’s going to do a blessed thing about this, or even considering it, but it took four years for people to even say: “hey Berkeley, has it occurred to you that maybe you should do something about this?” That’s progress of a sort.

130

Sebastian Holsclaw 04.22.08 at 9:49 pm

Oh and by the way, I think almost everyone works quite a bit off of post facto rationalizations. It is very human. I certainly do it. So you shouldn’t take it as an ‘accusation’. It is a description of what it means to be a human being.

131

Katherine 04.22.08 at 9:52 pm

Oh, well, see, the better to free 10 guilty men than allow 1 innocent to be punished is because criminal punishment involves sending people to prison, which is awful & their lives may never be the same, or executing them, which is worse. Losing tenure at Berkeley & going to work for some right wing think tank instead doesn’t seem comparable. There are procedural protections, but they’re lower, & I’m confident that whichever faculty committee is responsible would follow them. Sorry; I thought this was all pretty obvious.

132

Katherine 04.22.08 at 9:52 pm

Oh, well, see, the better to free 10 guilty men than allow 1 innocent to be punished is because criminal punishment involves sending people to prison, which is awful & their lives may never be the same, or executing them, which is worse. Losing tenure at Berkeley & going to work for some right wing think tank instead doesn’t seem comparable. There are procedural protections, but they’re lower, & I’m confident that whichever faculty committee is responsible would follow them. Sorry; I thought this was all pretty obvious.

133

Katherine 04.22.08 at 9:58 pm

also, it really wasn’t entirely ex post: I actually bought the “academic freedom” defense of Yoo for several years. Then it dawned on me: it honestly wasn’t his ideas that bothered me; he could’ve written 1,000 law review articles justifying unlimited presidenteial power & torture and I wouldn’t cared. It was: (1) he’d acted like the president’s mob lawyer (2) except that unlike a mob lawyer he’d not only made it easier to commit the crimes, but probably also made prosecution impossible (3) this had actually led to people being tortured. And so I suddenly regarded the “unpopular ideas/academic freedom” defense of Yoo as a line of crap, & the fact that I’d knee jerkily bought it myself for a while against my better judgment made me resent it all the more. (I don’t find the “political activity” defense any more persuasive).

134

alkali 04.22.08 at 10:11 pm

katherine writes @119:

[T]he danger of faculties throughout the land suddenly seizing the chance to fire their gay, pro-choice members if “moral turpitude” clauses become enforceable is not, in fact, real.

Further to this point, back in the day when homosexuality was widely considered immoral by academics, I don’t think that academic freedom norms actually did protect gay and lesbian faculty members (though I may be wrong about that). Accordingly, the notion that protecting torturers is necessary to protect the rights of gay and lesbian faculty members doesn’t seem to have any factual basis at all.

michael berube @107 writes:

[T]he trick here, it seems to me, is to think of good reasons to strip someone of tenure—for profound moral turpitude, say—without giving the Daniel Pipes Brigade a handy stick with which to beat every Middle Eastern Studies specialist they don’t like.

The answer here is that there is no trick. Thinking carefully about what standards are defensible and what procedures are less likely to be abused is certainly a good thing, but at the end of the day nothing works by magic: the people with authority have to do the right thing.

135

Megan 04.22.08 at 10:18 pm

Katherine, you’ve been so impressive in this thread, and I’ve agreed with near everything you’ve written.

Which leads me to Dave @ 102: what, you can’t think of ways of punishing Yoo that don’t involve firing him? No one says that tenure guarantees that you be assigned specific courses of your own choosing. The good folks at Berkeley might do well to get creative and assign Yoo to a couple of sections of “Torture: Theory and Practice.” That would look good in the course catalogue and on Boalt’s website.

No – (if he is a war criminal) it is genuinely not OK that Prof Yoo is a member in good standing of the University of California. Doing creative things to shame him within that context is still unacceptable given that an arm of the state of California is harboring and supporting him. (if he is a war criminal) His presence there threatens the integrity of my university and my state.

***

You may have to balance two bad things here – overturning tenure in a very extreme case versus continuing to hire and affiliate the university with a primary architect of American torture.

Those suck. But if you get to the end point that it is better to stay affiliated with a primary architect of American torture, you know your reasoning went wrong somewhere. Hard as it is for academics to see this, there is nothing so valuable about tenure that it is worth that result.

It is a damn shame Berkeley ended up in this bind, but given that it is, the honorable recourse is to do the hard work of reconciling their process with this extreme event.

The Academic Senate appoints a committee to analyze whether Prof. Yoo’s conduct meets the standards of a war criminal. Then they look at their Code of Conduct and see whether being a war criminal disqualifies a person from teaching at the university. If appropriate, they fire him. Then, for the next two decades, they spend the time defending their process against bullshit attempts on a professor’s tenure. They defend every inch of that slippery slope, so that you don’t get fired for homosexuality or rank ideas, and you do get fired for instituting an American torture regime.

Arguments that the latter part, that the slippery slope might not be adequately treated, are suggestions of future injustices. If Yoo is a war criminal, there is an immediate and concrete injustice that U.C. should address head-on. Risks of future injustices don’t outweigh that. Instead, you treat the current injustice, and you sack up for the prevention of railroading other professors if that occurs.

136

Yan 04.22.08 at 11:03 pm

“you cannot revoke Yoo’s tenure because tenure is awesome and can never ever ever ever ever ever ever ever be revoked” at work here.”

Katherine summarizes Leiter’s argument with breathtaking precision. Of course, Leiter would never be so gauche as to use the word “awesome,” but it really captures the argumentative rigor and cool-headed reasonableness that is Leiter’s trademark.

137

Michael Bérubé 04.22.08 at 11:44 pm

(if he is a war criminal) it is genuinely not OK that Prof Yoo is a member in good standing of the University of California. Doing creative things to shame him within that context is still unacceptable given that an arm of the state of California is harboring and supporting him. (if he is a war criminal) His presence there threatens the integrity of my university and my state.

OK by me. But how do we nail down that parenthetical? I was suggesting creative ways to shame him absent a conviction in a court of law, having taking aboard Katherine’s warnings about the difficulty of having the Department of Justice rule on Yoo’s work for the Department of Justice.

138

Total 04.23.08 at 12:10 am

the danger of faculties throughout the land suddenly seizing the chance to fire their gay, pro-choice members if “moral turpitude” clauses become enforceable is not, in fact, real.

You are remarkably optimistic about the state of the world.

139

Megan 04.23.08 at 12:14 am

I am fully confident that a committee of U.C. professors can write a report that:

1. sets out the broadly accepted international standards for war criminals;
2. sets out Prof. Yoo’s openly admitted behavior (shit, we can stipulate that we only use the memos that he signed);
3. demonstrate that it led to torture if it did;
4. and show whether Yoo’s behavior meets the elements of a war crime.

If the report shows that it is a close call, then we might all want to back away. But if the report is rigorous and transparent and shows that what Prof. Yoo did would get him convicted if a court could get their hands on him, then that should be sufficient for the purposes of Berkeley’s tenure decision.

(Note: this would not be sufficient for the purposes of a criminal conviction. But Yoo would lose no freedom, or pay a single dollar in criminal fines, or have his assumption of innocence in a criminal court hampered in any way. Berkeley can set the bar for its own internal processes where it will. It could choose ‘preponderance of the evidence’, or ‘beyond a reasonable doubt’, or use a standard from the Faculty Code of Conduct* for the purposes of firing their own employees. I suspect they would set it very high, and that should satisfy fears that Yoo (or future professors holding unpopular views) is being railroaded.)

*Then some of you are going to say, they did choose a standard. They choose “convicted in a criminal court”. To which I say – no, that was one example of the inexhaustive list of Types of Faculty Conduct that can get you fired. But I say he also violates the Principles of Ethical Behavior, by being a fucking war criminal (if a rigorous analysis shows that he is one) and if your Code of Conduct doesn’t include firing people for being a war criminal (convicted or no, because a criminal conviction may never happen), then it is BROKEN.

If it is broken, then we can’t change it afterwards to explicitly deal with John Yoo, but we ought to know that and add “Being a war criminal” to the lists of unacceptable Types of Faculty Behavior so we can catch the next one.

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Bruce Baugh 04.23.08 at 12:25 am

Dunno about anyone else, but an investigation of that sort conducted with proper support, vigor, and care would delight me, Megan. That would very much satisfy my desire that steps be taken (and allows room for the introduction of evidence or interpretation that would change my mind, unlikely as that feels right now).

141

Sebastian Holsclaw 04.23.08 at 1:50 am

How are a bunch of Berkley professors going to properly investigate 3 and 4? Among other reasons, they wait for convictions because they don’t have a subpena power.

142

bernard Yomtov 04.23.08 at 2:10 am

I just want to chime in to say that Katherine’s comments in this thread are terrific.

143

Megan 04.23.08 at 2:43 am

141 – If you are asking me that question, I’d say that I would be happy to confine the evidence in that report to information that doesn’t require subpoena power. For Berkeley’s purposes, memos Yoo takes authorship of, documents readily available with FOIA requests and public knowledge (such as the chain of command in the Bush administration), should be sufficient. If the analysis can’t make the case on undisputed information, then it should wait for a venue with more investigatory powers to do that work.

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Chris 04.23.08 at 3:40 am

Actually, I think the debate would benefit by a rectification of terms; instead of “academic freedom” we should talk about the (logically inseperable) concept of “lay slavery”. If it’s that good, how come only tenured academics get to inhabit this paradise?
My experience of actual universities, certainly, has been that any expression of unpopular views has been entirely coincidental and owing nothing to any percieved on-campus immunity. Did Michael Berube really bite his tongue on social issues until he got tenure? Do his confreres in the staffroom really all lean out the window with megaphones touting for NAMBLA, Al-Quaida, and socialised medicine? Universities are large corporations and are a good deal more like other large corporations than they are like Plato’s republic. Let’s work on that basis.

145

Jim Johnson 04.23.08 at 3:52 am

Henry,

A couple of comments:

“… whatever arguments we make for the protection or extension of academic freedom should start from pragmatic considerations, not rights.”

I’m not sure I could disagree with that view (or the reasons you advance for defending it.

“A society in which individuals can be fired without cause is a society in which individuals will very reasonably fear that they will face retaliation if they engage in unpopular forms of political activity.

Perhaps this accounts for why many people in the U.S. will not so much as discuss politics of any sort in public?

Megan,

Do you work in a University? Not only are faculty incapable of the sort of inquiry you (@ 135) have in mind, but there are no institutionalized procedures for carrying such an inquiry. Brian Leiter is right – Universities are not Courts. We have Universities for good reasons and we have Courts for other equally good reasons. The consequences of confusing the two institutions would be devastating for Universities.

KHR (@ 31),

Read the paper before explaining why its wrong. Then you’d maybe see that there is a distinction or two to be drawn between bargaining or ‘haggling’ and political debate or argument and deliberation which is a third mechanism.

Also read Cliff Geertz’s old AER paper on haggling in the Bazaar – which is an imperfect market because of all sorts of information asymmetries. It is not that buyers ‘want’ to haggle, they have to because the mysteries of the market that you apprently really llike don’t really work they way you wish they did.

Katherine

So, we academics value tenure more than the lives of torture victims? Please. I really hate when arguments start by calling into question the integrity of those with whom you might disagree. You might conclude there, but try, please, not to descend into the standard (Mostly) right-wing blogosphere tactic of leading with the ad hominem. It is tiresome.

I value the institutions of research, teaching and so forth thata take place in Universities. Those activities work best with a tenure system (or some alternative means of defending academic freedom). If you want Yoo’s hide – as I do – have him disbarred (I don’t recall anything being said about that here or elsewhere but may be wrong) or stop assuming that an shoddy OLC memo (especially one that was subsequently withdrawn) can bootstrap Yoo and his accomplices higher up the food chain into immunity. (I suggest reasons why in the blog post to which Henry linked at the outset. But they have to do with the question that Leiter raises about the ‘good faith’ of Yoo’s legal advice. It would be dazzlingly easy to shred such a claim. And you might enjoy watching the political fireworks that attended such an case.) That premise seems like something you might want to defend rather than simply assert. Re-asserting it repeatedly is not an argument, it is attempted browbeating. We have the institutional resources to get Yoo – the ABA ethics committee, US Courts, International Courts. All would be more effective than University Committees. And as someone in the thread mentions, even if UC fired Yoo, some nut job right-wing (sorry for the redundancy) think tank will pay his salary. I also am a fan (As are you @ 130) of ostracizing, ridicule and shaming until such time as Yoo is dealt with by the appropriate formal institutions.

Also, Yoo (and Condi)are on leave from their University position while they are employed by the administration. They are not doing both things simultaneously. SO Henry’s characterization of them as engaging in political activities outside the workplace seems apt. They are violating all sorts of law as political appointees. Pursue them for violating the law.

Finally I want to ask, would you advocate hunting down every last academic who took leave to work for a Democratic administration (all well known for doing various outrageous things, like surreptitiously engaging in torture)? Not, of course, for purposes of criminal proceedings (which I like you would want to do), but in order to try revoking their tenure.

yan & Bernard

As you can tell, I am less impressed by Katherine’s interventions than you. yan (@136) applauds her reading of Leiter. But unfortunately that reading is a poor one. Leiter actually says that there are clearly stated reasons for revoking tenure and Yoo has not fallen afoul of those rules. SO we can revoke tenure under identifiable conditions. Leiter nicely suggests why those do not hold. (see mz @ 16 who cites hte relevant passage) And Katherine’s uncharitable rendering of his argument is correspondingly unpersuasive.

We may not like it, but Yoo was granted tenure under a set of rules. Changing the rules ex post while maybe gratifying to one’s moralistic impulses (which I too often have), but will have bad consequences in Universities and beyond.

So here I agree with Henry’s own suggestion about the broad consequences of stifling political debate generally. But I disagree with him re: the ‘narrower’ consequences for Universities. But on Katherine’s account that is simply because I have tenure and he doesn’t. In reality, though, it it because I’ve been hounded by nutty right-wingers (from local yahoo bloggers up through The National Review online) for my unpopular political beliefs and actions on campus.

michael b

@ 79 & 137 – just so, more or less.

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Jim Johnson 04.23.08 at 3:57 am

PS: Sorry for the various typos, its late.

And sorry too for being tardy for the party.

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Bruce Baugh 04.23.08 at 4:45 am

Jim Johnson: I’m quite sure that Katherine would be delighted to see Clinton administration officials who collaborated in the development of “extraordinary rendition” lose their tenure, too. She’s written extensively on the matter for years now at Obsidian Wings (the link is to their torture and detention archive) and takes part in Human Rights Watch’s efforts to identify and interview victims, contribute to legal action on their behalf, and so on. It would be no exaggeration at all to say that a lot of what a lot of us liberal and leftie types know about how the whole mess got started comes from her reporting.

Er, are there ex-Clintonistas any in that tenured category, though? The pursuit of Yoo’s tenure isn’t intended to be the last word in a general effort to reclaim our country as one where torture is again a crime and shame, but much closer to the first. Indeed, one of the benefits of it would be laying foundations for protocols and precedents, which would make the rest easier. But every law, whether public or internal to an institution, has to begin somewhere.

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nick s 04.23.08 at 4:49 am

No-one’s prepared to take on my question?

Is Boalt Hall justified in disciplining students who refuse as a matter of conscience to take Yoo’s classes, should they be compulsary? Even if so, wouldn’t it make them look very silly?

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nick s 04.23.08 at 4:50 am

Compulsory, even. It’s been one of those days.

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Bruce Baugh 04.23.08 at 4:52 am

And since Jim seems not to be the only one getting the tone some of us who’d like to see Yoo nailed seek to convey…

It’s not that we expect every injustice to get fixed. We know, as well as the rest of you, that some evil will go unpunished and its harm unrepaired. And we know that sometimes the answer to an obvious evil has to be that it really is someone else’s job to fix.

What generates the anger you see in some responses is how quickly and easily dismissal of any possibility of accountability seems to come to a lot of you concluding that nothing can or ought be done about Yoo’s tenure. It reads very glibly. “Gosh, well, shucks, since this particular unprecedented circumstance wasn’t spelled out in advance, so sad, we can’t do anything, and we can’t risk innovating or asserting an ethical stance because it would be a nuisance. What a pity. So, who’s for tea?” It seems that a bunch of you defending academic independence in this case don’t especially care about the substance of the accusations against Yoo or the real-world consequences of what he’s helping the government to do. Certainly not as much as you care about not having to be bothered by the likes of Sebastian with his hypocritical textualism and dogmatic anti-abortionism, and all those like him.

Notice that in the above I say “seem” a lot. I do that deliberately. It’s what I perceive – but I don’t claim to be a perfect observer, for lots of reasons both chronic and acute. I note it so that if you’re interested in what’s pissing off some people that you usually have a lot of points of agreement with, you can.

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lemuel pitkin 04.23.08 at 5:22 am

It seems that a bunch of you defending academic independence in this case don’t especially care about the substance of the accusations against Yoo

Strongly-worded attacks on vaguely-defined targets are probably a bad idea. I guess you’re talking about Sebastian Holsclaw here, and probably Henry. Who else?

152

LC 04.23.08 at 5:33 am

james wimberley at 26: re your statement that a lecturer required to teach nothing but elementary statistics year after year would have a claim that her academic freedom (in the third sense) was being violated.

I find this a little peculiar, though I don’t know the history of Lehrfreiheit. In the context of a job market (at least in the U.S.) in which a number of credentialed, competent people cannot find any academic jobs at all, it just seems a little strange that someone hired with (presumably) the understanding that she might have to teach X could claim that her academic freedom is being violated b/c she isn’t allowed to teach Y also. I understand why she would be unhappy, but that’s a different issue.

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Bruce Baugh 04.23.08 at 5:49 am

Lemuel: I don’t respect Sebastian enough to much care about his views. I’m talking about people like Henry, Eric Rauchway, Brian Leiter, mz, James Wimberly, and like that. (Names taken from mentions in or authorship of the first three dozen or so posts to cover the spread.)

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Jim Johnson 04.23.08 at 12:32 pm

Bruce,

Thanks for your reply. Here is what I find remarkably counterproductive. Instead of keeping your eye on the ball and figuring out the best way to get the outcome you want, you attack the integrity of potential allies. (Here I use “you” in the generic sense not to refer to you BB.) Is it vaguely possible that those who think Universities are ill-equipped to carry out the sort of inquiry/judgment implied in Katherine’s program might sincerely believe that (1) her project will fail and (2)that it will undermine one of the central institutions in society?

I wouldn’t know Katherine if I ran into her on the street. My reply to her addresses the premises of her argument and the consequences of pursuing her plan. She and I disagree. That hardly makes me a self-absorbed, self-regarding defender of evil-doers like Yoo or those he enabled. But that is how she writes here. It is irritating and unjustified counterproductive re: the end she purports to desire – namely calling Yoo and his ilk to account.

And, by the way, my understanding is that the folks leading the charge on Yoo’s tenure at Berkeley (an there are some) are themselves tenured faculty. But about that I am unsure. Anyone know the facts? That might chasten Katherine’s criticisms just a tad.

155

Jim Johnson 04.23.08 at 12:35 pm

should read “unjustified and counterproductive”

I did fail typing in 9th grade …

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Jim Johnson 04.23.08 at 12:52 pm

Katherine (@ 60) delineates the basis for her ‘no prosecution is possible’ view. It trades on the same assumption as the ‘tenure is more important than pursuing torturers for faculty” position. It is no more persuasive. The case against prosecution Katherine lays out depends on a view of what is politically possible. She has a dim view of that. Others might reasonably be more optimistic. But note – her argument is not about the legal obstacles.

seth (@147),

I don’t know about your posting status. But disbarment would work as a first step in holding Yoo to account. It might (depending on the case) provide grounds for an incompetence attack on Yoo’s tenure. (Lots of law schools have non-lawyers of various sorts on faculty.) But it would have the consequence of keeping him out of future positions as a gov’t. lawyer.

157

Katherine 04.23.08 at 1:17 pm

The problem with prosecution is that it may be legally impossible because so many people can invoke a “reliance on official advice” defense because of the OLC memos. That was what I meant about “Yoo’s memo is an obstacle”. That said, there are some cases where they couldn’t; where interrogators exceeded even what was authorized, and the cases have not been pursued because of the Bush administration’s interests. There may also be cases of lying to Congress, destruction of evidence, etc. It may be too late for those when a new administration takes office, but it may not, & I would really like to see DOJ try. But, look: this DOJ won’t, no matter what pressure is put on them. Is anyone seriously denying that?

158

lemuel pitkin 04.23.08 at 1:18 pm

Bruce-

Are you sure Rauchway agrees with Henry, Jim Johnson, etc? If I understand him correctly, he’s saying that Berkeley has a process for removing faculty who violate its standards and that it should be pursued here.

Of course, that’s still not your position, or Katherine’s (or mine), which is that abetting torture is such an extraordinarily evil act that repudiating it takes precedence over institutional norms/rules. But Rauchway is at least suggesting that there is a way for Yoo to lose his job without undermining tenure.

159

Bruce Baugh 04.23.08 at 3:07 pm

Jim@153: I’m trying to be careful not to tell you or anyone else what you’re thinking. I’m emphatically not claiming any insights into what anyone else is thinking. I’m talking about what is in particular stirring me to more anger than I’d have expected.

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Henry 04.23.08 at 3:13 pm

Michael – sorry for not replying earlier – I was caught up in childcare. It may be that we are talking about rights in different ways here. When I say that I don’t want to derive an account of academic freedom from rights, what I am saying is that I don’t think that academics _qua_ academics have any more rights in a fundamental sense than other rights bearing subjects. This is not to say that they can’t have subsidiary ‘rights’ above and beyond what other people have under a particular institutional arrangement. But these rights aren’t fundamental – instead they are contingent upon that institutional arrangement, and on continued support for that arrangement from the general public. Which is to say that I think that if we look at these ‘rights’ more closely, they are less rights than privileges – they flow from the willingness of the public to delegate certain matters of governance to a particular community.

Bruce – when you say

What generates the anger you see in some responses is how quickly and easily dismissal of any possibility of accountability seems to come to a lot of you concluding that nothing can or ought be done about Yoo’s tenure. It reads very glibly. “Gosh, well, shucks, since this particular unprecedented circumstance wasn’t spelled out in advance, so sad, we can’t do anything, and we can’t risk innovating or asserting an ethical stance because it would be a nuisance. What a pity. So, who’s for tea?” It seems that a bunch of you defending academic independence in this case don’t especially care about the substance of the accusations against Yoo or the real-world consequences of what he’s helping the government to do.

and suggest that I am one of the ‘lot of you’ it is offensive bullshit, and demonstrable offensive bullshit. I would recommend first that you do a search for ‘torture’ on Crooked Timber (the search box is located conveniently in the top left corner) and see what you come up with. I’d then suggest that you then look at this “post”:http://crookedtimber.org/2008/04/04/what-to-do-with-yoo/ from last week, where I specifically called for Yoo’s case to be recommended to the UC Berkeley Senate. As an aside, one of the most vexing aspects of Katherine’s self-righteousness kick was that she didn’t bother to note that a number academics have indeed called for Yoo’s investigation. That I changed my mind about this in the interim has nothing to do with “quick and easy dismissal of any possibility of accountability” (and if it was a quick and easy dismissal then why the fuck was I arguing the opposite a week ago?) It has to do the fact that I convinced myself in the interim of a position that I didn’t at all want to convince myself of. _Of course_ I would like to see the people responsible for institutionalizing torture lose their jobs, be driven out into the wilderness, jailed and disgraced. That you should suggest the opposite (on the basis of what ‘seems’ to me to be a sloppy, tendentious and highly offensive misreading) is a gratuitous slur. I understand why people feel strongly about this – I feel strongly myself. I also understand and agree with the frustrations of people who feel that the US legal system isn’t going to deliver (that is one of the reasons that I specifically noted in the post that a finding from a reasonably legitimate foreign or international court should be enough to justify action. But as Jim notes above _starting_ from the position that the people you disagree with are arguing in bad faith, in the absence of good evidence that you are in fact correct, is a stupid way to go about things.

Lemuel – the one important correction that I would make is that I do of course believe that it is possible to distinguish between torture and some other positions that some people might find to be opprobrious. What I doubt is whether a criterion or rule can be crafted to generally distinguish between these things in a manner that is generally acceptable that doesn’t set a precedent for other and fundamentally nasty forms of later ad-hoc abuse. I could of course be wrong about this, but I have yet to be persuaded by anything I have seen on this thread or elsewhere that I am.

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Henry 04.23.08 at 3:18 pm

And as an aside – abb1 and Seth Edenbaum – you both know _quite well_ that you are banned from commenting on my posts. If you persist, I’ll stop deleting your comments, and instead start running them through the Elmer Fudd dialecticizer and similar. In Seth’s case, I suspect that this might actually improve on the coherence of the original, but we must all make our sacrifices.

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Dave 04.23.08 at 3:20 pm

Pardon me for asking, but what’s a fundamental right? Where can I get one? Who do I complain to when it stops working? How, indeed, will I know it is working?

163

Bruce Baugh 04.23.08 at 3:36 pm

Henry, I’m not starting from a presumption of bad faith. I’ve arrived at a perspective I find unsettling enough that I thought it worth bringing up in text so that others can take a poke at it. I would be happy to have more reasons to see things otherwise.

164

Katherine 04.23.08 at 3:45 pm

“she didn’t bother to note that a number academics have indeed called for Yoo’s investigation”

Really? Who? I’ve seen responses ranging from agonizing & leaning towards supporting an investigation but not doing so officially (DeLong), to attacking anyone who wants one for not valuing academic freedom (Edley, Leiter, etc.) to somewhere in the middle (lots of people). There were a couple of people–you, Tim Burke–who actually seemed to support some action at first, but then changed their mind & backed off & explained that on second thought they really didn’t think so. Maybe we just run in different circles, & you’re bound to know more academics than I do, but exactly who are you talking about?

165

Katherine 04.23.08 at 3:50 pm

(and please don’t explain to me about the many people who may have secretly contacted Berkeley. I’m glad to know that it’s at least possible that someone has, but I would be shocked if there is any serious investigation given Edley’s obnoxious “chilling effect” business & misrepresentations. In any case, if you’re going to insult my “self righteousness” for ignoring these people, I think it’s fair to ask who exactly they are.)

166

engels 04.23.08 at 3:54 pm

For reference, here is an interesting overview of how dismissal for gross misconduct normally works in England. I think this might clear up some of the confusion which seems to be evident in many of the posts above about how such a system can possibly work.

Points to note: misconduct outside of the workplace may qualify if ‘if it is deemed to be likely to impact on the performance of his contract or the reputation of the employer’ and ‘if an employee is charged with a criminal offence… [t]he employer does not have to wait for the outcome of police investigations or criminal trial… The employer should hold its own investigation into the matter’. Also, although ’employers [should] ensure that the workforce is… aware of the rules… [i]t is not possible to define all the areas which could constitute gross misconduct’.

=======

What should an employer do if he suspects an employee of misconduct?

* The employer must investigate the matter fully (speak to witnesses, collect documentary evidence etc).
* The employer must also give the employee an opportunity to explain himself.
* The employee should sufficiently know what the case and evidence is against him before any hearing.
* Prior warning of the hearing date and that the disciplinary action is under consideration.
* Give the employee the opportunity to call witnesses.
* Inform the individual he has the right to be accompanied by a colleague (or a trade union official).
* Inform the employee he has the right of an appeal.

When will it be reasonable to dismiss for misconduct?

Even though an employer may have strong suspicions that an individual is guilty of misconduct, this may not be enough. Although an employer does not have to show an employee committed the offence “beyond all reasonable doubt”, there is a threshold that must be reached. In particular:

* The employer must believe that the employee is responsible for the conduct in question.
* The employer must have reasonable grounds for this belief.
* The employer must carry out as much of an investigation into the matter as is reasonable.

What if an employee is charged with a criminal offence?

* The employer does not have to wait for the outcome of police investigations or criminal trial.
* The employer should hold its own investigation into the matter.
* The employee’s rights to have this matter investigated by his employer and to present his side of the story remain regardless of the fact that he is charged by the police.

Out of office misconduct

Generally, employees will only be subject to the company’s disciplinary rules and procedures during their office hours or when they represent the company.

In certain circumstances an employee’s behaviour may be subject to the employer’s scrutiny if it is deemed to be likely to impact on the performance of his contract or the reputation of the employer. Out of office misconduct must be particularly serious to warrant disciplinary action and the behaviour should also relate to the employee’s ability (or perceived ability) to do his job.

167

Katherine 04.23.08 at 4:01 pm

Further, Henry: I don’t see how you can plausibly deny that:
(1) tenured & tenure track academics are way out of step with others with otherwise similar views on this question when it comes to Yoo
(2) the explanation for this probably has something to do with the value they place on tenure.

I suppose from the inside, it looks like we don’t understand the implications of what we’re asking you to do. But from the outside, it looks like you were all for accountability right up until the kind of accountability that academics are unusually affected by–but also in a unique position to influence. And most of the stated justifications for this look really, really unconvincing. And when I gave detailed explanations of why I found them unconvincing, and asked you about some of the bizarre implications of your argument you chose not to respond because I was too self righteous & had insulted your honor.

168

Henry 04.23.08 at 4:15 pm

Katherine – the people I was thinking of were Brad DeLong, Scott Horton and Tim Burke.

And as for the rest of it – when you come in to an argument and start off by suggesting that the people you are disagreeing with with are arguing in bad faith, you can’t and shouldn’t expect serious engagement in return. If you aren’t providing it, you aren’t going to get it. That is all.

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Katherine 04.23.08 at 4:23 pm

Scott Horton’s not an academic, as far as I know. He’s a former firm lawyer now affilitated with Human Rights First who writes for Harpers. He’s also very involved with the NYC bar association. Tim Burke said in comments to his anti-Yoo post that it was a joke to point out people’s inconistencies re: Ward Churchill & he actually thinks that having tenured Yoo, Berkeley shouldn’t do anything now. DeLong’s the only one I may have misunderstood: I figured when he discussed actually writing to Berkeley, & then didn’t, he had decided not to, but maybe I am misinterpreting because I didn’t understand protocol.

I didn’t think you were not arguing in good faith until just now, when you made clear that you had decided to read everything I wrote as uncharitably as possible in order to sidestep every single substantive argument. I think you know who I am & where I’m coming from on these issues, & if you choose to assume that I’m personally insulting you rather than being mad at the world, well, I guess we just have nothing to say to each other.

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Henry 04.23.08 at 4:24 pm

or not quite all … let me finish by adding that the gamut between your apparent starting position of “you are all tenure-protecting hacks” and your apparent current one of “your peculiar unwillingness to respond to my Series of Devastating Arguments ™ strongly suggests to me that you are a hack: prove otherwise!” both is rather limited, and suggests a quite surprising unawareness of precisely how your claims come across in a public setting.

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lemuel pitkin 04.23.08 at 4:27 pm

But from the outside, it looks like you were all for accountability right up until the kind of accountability that academics are unusually affected by

Katherine, this is not accurate. Henry’s position is that no employer should fire or otherwise penalize someone for being involved with torture without a criminal conviction or similar legal ruling, because there is no clear rule to separate torture from other kinds of political activity. He may be worng on this — I certainly think he is — but it’s very clear that that his position has nothing to do with tenure specifically.

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banned commenter 04.23.08 at 4:28 pm

Будете ли вы, действительно? Я хотел этого

173

Henry 04.23.08 at 4:29 pm

We cross posted – yes – I acknowledge that you are justifiably mad at what is happening – but you started by turning this anger into a claim that the academics who disagree with you on this are really motivated by the joys of tenure. If you choose to interpret my annoyance at this (and unwillingness to get into a back-and-forth with someone who is effectively claiming that I am a hack) as a failure to argue in good faith then I can’t stop you but I obviously am unlikely to agree with you.

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Katherine 04.23.08 at 4:35 pm

Oh, for fuck’s sake. See 166. There is a huge gap between academics & non-academics on this; people being what they are, academics are likely to attribute this to their superior understanding of what’s at stake & non-academics are likely to attribute this to academics’ protecting their own. If you can’t deal with a little bit of that, which was actually originally directed primarily at e.g., Edley’s response and not at you personally, and try to get past it & engage with my substantive arguments, which may or may not be so devastating but I wouldn’t really know because you’ve chosen to exclusively focus on what a bad unserious self righteous person I am instead of responding in any way, there’s no point in discussing this.

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Katherine 04.23.08 at 4:39 pm

cross posted again, but I really don’t see any point continuing in any case.

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Katherine 04.23.08 at 4:42 pm

Of course this whole exchange has totally confirmed my original conclusions about the academy protecting its own–the fact that saying that about ANY ACADEMIC is tantamount to a personal insult of every individual academic with doubts about Yoo losing tenure which renders the person who utters it Unfit For Serious Debate would actually be a text book example of the Academy circling the wagons regardless of the merits.

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banned commenter 04.23.08 at 4:43 pm

будете ли вы 、 действительноですか? я хотел этого < /私>

下手な翻訳です。 ” хотел “には、過去時制の”したい” 。 “希望”は他のような” хотел бы < /私> “です。

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Henry 04.23.08 at 4:47 pm

katherine – if you want to think that, go on thinking that. It’s conveniently self-justificatory, even if it is not, like, actually true or anything.

179

Megan 04.23.08 at 5:31 pm

Too harsh on Katherine. I continue to think that she holds the moral ground here, and I’m so glad she defends it.

180

Bruce Baugh 04.23.08 at 5:55 pm

Lemuel, you’re quite right in your 166 about the broad nature of Henry’s preferred policy. I acknowledge that I was dead wrong to the extent that I suggest it was focused on the academy, and think the distinction matters.

Part of what genuinely terrifies me about the Bush administration, however, is that they’ve got this framework in place to get anybody for no reason at all. Very much including academics. This is perfectly clear in Yoo’s own memos: it’s an argument for power restraint, and the pretense that there’s no constitutional or legal objection to that, just whiners. Seeing the community of the academy deploying to protect one of its own who is arguing that they should have no defense or recourse if the administration chooses to target them, any more than the rest of us should, is where the cognitive buzz sets in. About the only way it could get more suicidal is if Yoo had written that academics deserved special targeting and harassment beyond what we’re all open to.

181

engels 04.23.08 at 5:56 pm

Things I have learned today:

1) Whether torturing people ought to be legal in certain circumstances is a thorny, intellectually challenging question which needs to be continually grappled with by America’s finest legal minds in bastions of liberal enquiry like UC Berkeley.

2) That it is unacceptable to fire a tenured academic for anything short of legally proven criminal conduct is an absolute moral principle to which there are no exceptions and which is only seriously questioned by idiots and hacks.

3) The suggestion that the views of any academic on a political question which directly impacts on the privileges associated with his social position might be motivated to some extent not only by a disinterested love of objective moral truths about freedom, etc, but by class interest, for example, is scurrilous, offensive and entirely off-limits in a serious discussion.

182

Henry 04.23.08 at 6:12 pm

Engels – if your comments (1), (2) and (3) are aimed at me, they’re self-evidently stupid and tendentious misinterpretations of what I have in fact argued. If they’re not, then my apologies.

183

Sortition 04.23.08 at 6:13 pm

Katherine,

This should be seen as more of a case of “Academics protecting the privileges of academia” rather than “Academics protecting one of their own.” Henry et al. truly are disgusted with Yoo, and would gladly kick him out of academia if they could do so without calling into doubt the status academics in general as clerics of science and the embodiment of free speech and free thought.

So, it is their own status (and the privileges associated with it) that they are protecting, rather than Yoo himself.

184

Katherine 04.23.08 at 6:17 pm

some very basic questions I don’t know Henry’s answer to, which I think I asked above but perhaps not clearly enough: if Yoo’s activities are “outside political activities” of the sort that employers shouldn’t penalize employees for, would a private law firm have been justified in firing him because of the memos? Would it be justified in not hiring him? Would a university be justified in not offering him a position in the first place?

185

Henry 04.23.08 at 6:23 pm

Sortition, that isn’t what, in fact, I have argued. My argument, as I understand it goes as follows. (1) I’ve suggested that academic freedom is a good thing on pragmatic grounds, but also made clear that it fundamentally depends on public willingness to delegate some degree of self-governance to the academy. If the public decides that academic freedom isn’t working out in terms of the goods it provides, then too bad for academic freedom. (2) I’ve argued that Yoo’s case is not in fact covered under academic freedom, and that efforts (such as those by Brian Leiter) to argue that Yoo was engaged in the free production of ideas when he was in the USG don’t work. (3) I’ve suggested that there is a general pragmatic case to be made for a norm of not firing people for activities that they undertake off the job, and that this suggests that we should not fire Yoo. This isn’t a defence of tenure (an institution whose general merits I am somewhat ambiguous about, but which certainly isn’t an absolute right or anything like it), but of people’s general rights in the workplace. It’s a case that I have made before without any reference to the academic world whatsoever. So in short – my defence of Yoo doesn’t turn on the privileges of academe, and what broader case I make for these privileges is a highly contingent one.

186

Jim Johnson 04.23.08 at 6:23 pm

I have not kept up with the thread since my last comment. That said, there I asked about the status of those leading the charge against Yoo re: revoking tenure.

Without wanting to adjudicate the argument between them, Brian Leiter apparently wrote on the Yoo case in part to take on views of Professor Paul Campos, Faculty, UColorado Law School. I know neither Campos nor Leiter. Here is a link to a Campos column in Rocky Mountain News calling for Berkeley to fire Yoo.

http://www.rockymountainnews.com/news/2008/
apr/16/campos-a-tortured-defense/

A single counterexample, of course, hardly is devastating to Katherine’s suspicions, but there is an empirical matter at hand.

187

lemuel pitkin 04.23.08 at 6:26 pm

I, also, am curious about Henry’s answers to the questions in 184.

188

engels 04.23.08 at 6:27 pm

Henry – Only (3) was aimed at you. (1) was aimed at Edley. They were all caricatures, of course, rather than attempts to “misrepresent” your views on the permissibility of considering the social bases of people’s political beliefs, of which any reader of this thread may form his own judgment.

189

lemuel pitkin 04.23.08 at 6:35 pm

Engels-

Suggesting that someone’s views are based on their self-interest really is off-limits in conversation with that person. Academics, non-academics, whatever — it’s simply not possible to communicate with someone on that basis. It means that you are no longer talking to them, but about them.

190

engels 04.23.08 at 6:40 pm

Henry, are you going to be campaigning to get to the English law on dismissal for gross misconduct (which I referred to above) changed? I don’t know what the law is in Ireland or the US but supposing it is similar, will you be trying to get it reformed there? And like others, I still fail to why you classify Yoo’s providing an official legal opinion which rubber stamps the use of torture in the US as a ‘political activity outside the workplace’, or why you consider his case to be remotely similar to a woman who was fired for having a John Kerry bumper sticker.

191

Henry 04.23.08 at 6:46 pm

Engels – there’s a difference, I think between considering the social bases of people’s views, and telling those people in argument that their views are a function of those social bases. If you do the latter, you’re likely to get them upset and offended for obvious reasons. And in my defence, as noted, my argument here in re: not firing Yoo stems from a longstanding commitment which I have explicitly articulated before on this blog, which doesn’t stem from my social position in any obvious way (except insofar as it might possibly privilege the interests of those already in jobs as opposed to those without them), and which is entirely unconnected to the privileges of tenure that I am supposed to be defending.

To put it another way: if I were indeed seeking consciously or unconsciously to defend the privileges of academe, I would be likely do so in a manner which didn’t provide quite as many hostages to the opponents of these privileges as my initial post did. I start from the position that whatever ‘rights’ that academics have are _privileges_ that need to be _justified_, and that can be withdrawn by popular consensus if that popular consensus decides that these privileges aren’t delivering broader social benefits (or, alternatively, if a different set of privileges and responsibilities would deliver better benefits).

Katherine – my response to (1) is yes – obviously under my account a law firm would be under the same strictures as a university with respect to firing. This assumes that there is no plausible way to draw a connection between the actor’s outside activities and their competence to perform the job in question. As for _hiring_ in either a university or a lawfirm – I haven’t thought this through fully, but my initial reaction is that (a) it would be less likely to fulfil the purpose of protecting employees’ ability to pursue outside activities that don’t impact their work(people are less likely to draw the relevant connections), and (b) that it would in any event be very difficult to enforce.

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Katherine 04.23.08 at 6:49 pm

The really general principle as far as “off the job” activities is that employers almost always consider conduct & experiences during other jobs–especially jobs in the same field–as relevant to hiring decisions. Normally, once you’re hired they wouldn’t be as relevant for keeping your job, but truly egregious on-the-job-misconduct in a related position that your employer only found out about after hiring you (or which occurred after you got hired, during a leave of absence) would be. Say a school hires a principal & then finds out about their participation in physical abuse of a student in a previous position–I think that would probably be considered relevant, and I think Yoo’s much closer to this, than to pamphleting for some candidate I hate on the weekends. In order for Yoo to be an exception to this you’d have to think either that the practice of law is totally unrelated to qualifications for legal scholarship & teaching, or that acts of gross, gross misconduct are automatically protected political activitity if they’re in line with the agenda of a major politician, or you’re back to relying on tenure. All of these seem obviously indefensible to me; relying on tenure would probably actually be the least objectionable justification since at least it doesn’t have you arguing that not hiring Yoo is a form of unfair repression of private political activity.

193

Jim Johnson 04.23.08 at 6:53 pm

Bruce (@ 163),

“Henry, I’m not starting from a presumption of bad faith. I’ve arrived at a perspective I find unsettling enough that I thought it worth bringing up in text so that others can take a poke at it. I would be happy to have more reasons to see things otherwise.”

I take you point here. But the arguments that I have seen here and elsewhere on this matter, and that I find persuasive, are simply that there are institutional venues like politics and courts that are likely to be far more effective in bringing Yoo and his ilk to task than anything a University is capable of, or justified in, doing. And frankly, no one takes up that point in this thread. Katherine simply dismisses it, although her reasons for so doing seem to me tenuous at best (on which more below).

Megan (@ 179),

As I see it, the problem is that in cases like this taking the moral high ground tends to undermine actually accomplishing what you set out to do. I am a realist in this sense. What I want is for Yoo to be taken to task for his misdeeds. And I think that moralizing about academics and their failings is a total distraction.

Henry, (@ 185)

I actually think you are being unfair to Leiter on this. His view does not reduce to a facile defense of free speech or academic freedom. His argument is about the standards of accountability in the legal profession generally, not just the academy. He suspects that Yoo could raise a “good faith” defense, the sketch of which is that having espoused a unitary executive theory prior to going to OLC and having espoused it after leaving, he simply offered W, et. al. competent legal advice given that theory (the plausible background premise to Leiter’s argument is the lack of consensus on matters of constitutional law).

Hence, Leiter makes an analogy to prosecuting tax lawyers for the advice they provide theirclients. Now, I think that Leiter is wrong on that. (The analogy is a poor one.) It seems to me that “good faith” would paper over any ideologically informed pattern of criminal behavior of the sort that Yoo, I believe, has engaged in. But there is an argument to be had on all that.

That leads me to Katherine, whom I will respond to in a different comment. The issue is precisely what sort of “obstacle” the torture memos represent with regard to prosecuting Yoo and his clients.

194

Henry 04.23.08 at 6:56 pm

engels – my particular concern stems (a) from the prevalence of at-will employment across large swathes of the US, and (b) my empirically grounded confidence in the ability of troglodytes to use any generally worded principle as a justification for firing all sorts of people whose conduct outside of work shouldn’t merit firing. If there is an employment regime along the lines of the UK one that is backed up by a reasonable jurisprudential system (e.g. one which isn’t likely to expand loopholes in an unwarranted fashion), then on pragmatic grounds I think that would be wonderful. But I worry that in the US system, this would open up all sorts of loopholes that might be interpreted both by employers and judges in unfortunate ways. For example – the bit about behaviour that would damage the “reputation of the employer” – are you confident that a clause like this would be interpreted fairly by US courts?? If so, you’re a braver man than me.

195

Henry 04.23.08 at 7:00 pm

And ps – as the previous post discusses, US employment law differs from state to state – but plenty of states have ‘at will’ regimes, where there are effectively no rules governing these issues – an employer can fire you because he doesn’t like the colour of your tie, the bumper sticker on the back of your car, your participation in a gay rights march last week or whatever, and you have no recourse.

196

Yan 04.23.08 at 7:01 pm

Katherine, I think you’re more awesome than tenure. (But I’m an academic, so what do I know?)

Too be sure, there’s a degree of unfairness to any accusation of bad faith argumentation, and it’s impossible to prove such claims without a mind-reading machine. But let’s be honest: there are cases where we are all willing to assert that blind faith is patently obvious. I cannot prove G.W. and Cheney didn’t really give a rat’s ass about whether there were indeed WMD, but only a fool would consider the charge “off the table.”

l.p.,

“Suggesting that someone’s views are based on their self-interest…means that you are no longer talking to them, but about them.”

Why can’t I talk to someone about himself or herself? “Hey, I see you got a new hairdo!”

For that matter, why can’t we make reasonable criticisms based on interpretations of motives for holding views? “I see you got a haircut, and that you’re sitting on that chair in part based on a desire to sit down!”

197

Yan 04.23.08 at 7:04 pm

Katherine, I think you’re more awesome than tenure. (But I’m an academic, so what do I know?)

Too be sure, there’s a degree of unfairness to any accusation of bad faith argumentation, and it’s impossible to prove such claims without a mind-reading machine. But let’s be honest: there are cases where we are all willing to assert that blind faith is patently obvious. I cannot prove G.W. and Cheney didn’t really give a rat’s ass about whether there were indeed WMD, but only a fool would consider the charge “off the table.”

l.p.,

“Suggesting that someone’s views are based on their self-interest…means that you are no longer talking to them, but about them.”

Why can’t I do both–talk to someone about himself or herself? E.g.: “Hey, I see you got a new hairdo!”

For that matter, why can’t we make reasonable conjectures about motives, as required for charges of bad faith? E.g.: “I see you got a haircut, and I notice that you sat on that chair because of an unspoken, inaccessible-to-others, mental volition to sit down!”

198

Katherine 04.23.08 at 7:11 pm

I think the idea that a law firm couldn’t fire Yoo for this is ridiculously off the mark. The assumption that previous performance as a lawyer is not relevant to qualifications to practice law is so idiosyncratic that it really didn’t occur to me that you were making it. Either he behaved incompetently & failed to notify his client of adverse authority or he behaved unethically & wrote a bad faith C.Y.A. memo advising that torture was legal. This is a breach of his basic obligations to his client, especially given that his client was the United States of America & its citizens–but it would have been a breach even if his client really were George W. Bush. Maybe Berkeley considers itself incompetent to judge Yoo’s competence or ethics as a lawyer, & needs a state bar association to make the call for it, but a law firm sure doesn’t have to take that view. A friend of mine who’s a partner at a firm has said: “well I don’t know if Berkely can fire a law professor for being a terrible lawyer, but if they can I wish they would”. Even if Berkeley can’t–either because they’re unqualified to make judgments about ethics or competence in the practice of law or because the practice of law isn’t relevant to one’s qualifications in scholarship or teaching, which I don’t especially buy–a firm certainly can do so.

199

Henry 04.23.08 at 7:13 pm

Say a school hires a principal & then finds out about their participation in physical abuse of a student in a previous position—I think that would probably be considered relevant, and I think Yoo’s much closer to this, than to pamphleting for some candidate I hate on the weekends. In order for Yoo to be an exception to this you’d have to think either that the practice of law is totally unrelated to qualifications for legal scholarship & teaching, or that acts of gross, gross misconduct are automatically protected political activitity if they’re in line with the agenda of a major politician, or you’re back to relying on tenure.

Katherine – that is why I noted that my argument depends on there being “no plausible way to draw a connection between the actor’s outside activities and their competence to perform the job in question.” If there is such a way (and it isn’t just an _ex post_ justification), then I think that there is no reason whatsoever why the relevant person’s employment should be protected. And if this case can be established for Yoo, then I think that it is entirely reasonable to fire him (again, my argument has nothing to do with tenure – the same argument would apply to an untenured lecturer, your school principal if he/she is on an at-will contract or whoever).

It may be that there is a good argument along these lines out there to push for Yoo’s firing – but my understanding is that his legal opinions were pretty directly consonant with his scholarship, which makes it hard to draw that connection. Note again, exactly what I am arguing here. I am not saying that this gives his behaviour in USG some color of protection under the principle of academic freedom. It doesn’t. What I am saying is that his arguments _as arguments_ passed muster with the legal academy, which makes it harder to establish that he was somehow incompetent in employing these arguments as the basis for his work for USG, although not impossible (the point of entry here might turn upon the somewhat sketchy relationship between legal scholarship which often flies into the empyrean and the application of law – not all arguments that pass muster in a law review article should be considered sufficient basis for legal analysis in the real world).

200

engels 04.23.08 at 7:14 pm

I think between considering the social bases of people’s views, and telling those people in argument that their views are a function of those social bases. If you do the latter, you’re likely to get them upset and offended for obvious reasons.

Agree that there’s a difference and agree that the second can give offense (although the likelihood of this seems to me to vary according to the context and the person concerned). But what Katherine said was:

the endlessly shifting justifications, most of them indefensible (I’m thinking especially of Edley’s) are not inspiring confidence that there is a principle greater than “you cannot revoke Yoo’s tenure because tenure is awesome and can never ever ever ever ever ever ever ever be revoked” at work here.

which doesn’t seem to me to be either particularly insulting or personally directed at either you or Jim, who both seemed to take it like a slap in the face.

I will add that Lemuel’s conversational maxim in #189–

Suggesting that someone’s views are based on their self-interest really is off-limits in conversation with that person… it’s simply not possible to communicate with someone on that basis.

seems to me patently absurd.

The more interesting points about employment law in the US I’ll consider later.

201

Henry 04.23.08 at 7:14 pm

The assumption that previous performance as a lawyer is not relevant to qualifications to practice law is so idiosyncratic that it really didn’t occur to me that you were making it.

Ummm … that would be because I didn’t in fact make it.

202

Henry 04.23.08 at 7:27 pm

engels – the remark (as I believe Katherine acknowledges in later comments) is a suggestion that the “shifting justifications” of academics (including not only Edley but also me) are really a cover for our interest in preserving the tenure process. In the most benign of interpretations this is a challenge of the ‘prove to me you are not arguing in bad faith’ variety – and the most benign interpretation is not the most obvious one to me. I completely understand Katherine’s frustration, and am an admirer of her past work on this stuff, but as I said, this really isn’t the best way to start out persuading people to your position.

203

engels 04.23.08 at 7:28 pm

there are institutional venues like politics and courts that are likely to be far more effective in bringing Yoo and his ilk to task than anything a University is capable of, or justified in, doing. And frankly, no one takes up that point in this thread. Katherine simply dismisses it, although her reasons for so doing seem to me tenuous at best (on which more below).

The reason no-one has taken up that particular gauntlet here is because it is a whole other issue. I very much doubt that Katherine or anyone else here is opposed to pursue Yoo in the courts. In my opinion you are far too optimistic about the possibility of bring Yoo to justice in the US. The possibility of trying him in a foreign court an intriguing one, and much more real than many people imagine, but it is also far from certain. As far as I can see, none of these strategies exclude any of the others at this point.

204

Katherine 04.23.08 at 7:33 pm

“It may be that there is a good argument along these lines out there – but my understanding is that his legal opinions were pretty directly consonant with his scholarship, which makes it hard to draw that connection”

I honestly believe a lot of controversial things about constitutional law & could write law reviews articles expounding on them at great length, but I know full well that if I were at OLC I can’t ignore the huge weight of authority going the other direction. I think the death penalty should be held to be unconstitutional, but if I were writing a memo on the subject in OLC: (1) this is supposed to be an analystic memo, binding on the executive branch, on what the law is right now, and my opinion is totally contradicted by relevant authority–binding Supreme Court opinions, etc.; I can’t just override those because I wish they’d come out differently (2) and I certainly can’t fail to even cite them. Yoo failed to cite the most important Supreme Court case, & totally disregarded three relevant clauses of the constitution which give Congress the authority to ban torture. Also, while his academic work, like the memo, takes a crazily broad view of executive power, I don’t think there’s any equivalent of the nonsense about getting “death or organ failure” from the dishonest use of a medical benefits statute. In general I don’t think the academic work is quite as badly reasoned, one sided, or poorly supported, but I’m really more familiar with the torture memos.

I think what you must be relying on is an assumption that professional incompetence might be relevant but grossly, grossly unethical professional behavior isn’t–at least not to an academic job. Well, maybe for an academic job–though I still don’t really understand why; the whole raison d’etre of these schools is to train lawyers–but that’s certainly not true of the practice of law.

205

Jim Johnson 04.23.08 at 7:49 pm

Katherine,

Here are a set of comments on your various interventions.

(@ 157) “But, look: this DOJ won’t, no matter what pressure is put on them. Is anyone seriously denying that?”

Are you kidding? You expect the administration (which includes the DOJ) to prosecute itself? I want investigations by Congress. And I want people with standing to initiate law suits against everyone from W down to Yoo and maybe beyond. Maybe the DOJ of a future administration would initiate a case. I doubt that. But people would rightly yowl if the administration announced that it was initiating an investigation, let alone proceedings, against itself. Foxes & chicken coops and all that.

In this comment you again raise the issue that the torture memos are an “obstacle” to prosecution. The hand waving @ 157 is just that, hand waving. You have nowhere so much as indicated why they present a legal obstacle, let alone an insuperable one.. They are widely regarded as shoddily reasoned and they were subsequently recalled by the OLC. And lots of administration folks have backed away from them in various venues. (Note, I’ve note mentioned international prosecution based on international agreements.)So a prosecution has plenty of latitude here.You are not guaranteed the outcome you (and I) want. That can’t be the criterion though.

I said this before and will do so again. It would be really nice if you could defend your view that legal prosecution is, for legal reason, impossible. We can argue about the political difficulties of getting people with standing to sue or Congress to initiate inquires, but you are presuming without argument that legal avenues are closed. The memos are in no obvious way an insuperable obstacle as you seem to make out.

(@ 164) Without much (actually without any) heavy lifting I came up with a counterexample; that just required that I read Leiter’s post on this matter. Armchair empirics suit your suspicions nicely. But the burden is hardly on the accused (we tenured weenies) to defend ourselves against your charges. Moreover, since your broader argument places the burden on revoking tenure as the appropriate means of retribution, given your questionable premise regarding “obstacles” I’ve repeatedly mentioned, your proclamation (@ 166-74 & 176) that the debate here simply confirms your prejudices rings very hollow.

(@ 184) “some very basic questions I don’t know Henry’s answer to, which I think I asked above but perhaps not clearly enough: if Yoo’s activities are “outside political activities” of the sort that employers shouldn’t penalize employees for, would a private law firm have been justified in firing him because of the memos? Would it be justified in not hiring him? Would a university be justified in not offering him a position in the first place?”

A private law firm could fire an attorney (except those who are partners, I presume, but that is a question) for offering incompetent or criminal advice to a client. That said I doubt any firm would fire a partner or associate unless they’d been convicted of criminal behavior. It would be interesting to know from someone with actual knowledge (That’s not me for sure! You?) About the sorts of actual criteria involved here. That said my intuition is to side with Henry here too. I suspect you’d have to prove malfeasance or expose the firm to a big old law suit.

As for hiring, University and College Departments regularly (sometimes subtly, sometimes not) rely on political considerations in making hiring decisions. That is wrong. The same, I would think, holds for law firms – although there the reputational effects of having a radical of any persuasion on the masthead surely would be trotted out. Which leads to:

(@ 192) “ … that the practice of law is totally unrelated to qualifications for legal scholarship & teaching”

Not “totally” but largely. Here I tend to agree with Dick Posner’s assessment of legal “scholarship.” Legal practice consists roughly in throwing up arguments in hopes that one might stick. Academic arguments are at least allegedly governed by standards of scholarship. (You may scoff at those or contest them, but they do exist.)That is why the phrase ‘legal scholarship’ arguably is an oxymoron.

If my reply is persuasive, your attempt to corner Henry is unconvincing because there really is no corner in which to trap him.

Finally – As an aside, I think you are naive about the impact that revoking Yoo’s tenure (or even seriously pursuing that as a first step) would have on academic life. Outsiders, mostly from the right, would be making similar demands re: tenured faculty, mostly from the left. Be careful what you ask for here.

206

Katherine 04.23.08 at 7:50 pm

201: What the….I don’t understand; what did you mean by this then? “obviously under my account a law firm would be under the same strictures as a university with respect to firing. This assumes that there is no plausible way to draw a connection between the actor’s outside activities and their competence to perform the job in question.”

The premise for this statement is, as you say, an assumption that there is no plausible way to draw a connection between Yoo’s “outside activities”–his practice of law at OLC–his practice of law for a firm. This assumption is self-evidently absurd, because his supposedly “outside activities” were totally job related, and your initial analogy that it’s comparable to membership in a political party, support for a political candidate, etc. is just way, way off. With respect to llegal academia it’s not self-evidently absurd that practice of law is irrelevant but it’s most certainly contested.

207

Katherine 04.23.08 at 7:59 pm

“And I want people with standing to initiate law suits against everyone from W down to Yoo and maybe beyond. “

You mean sue for damages? Uh, yeah. We’ve tried. Many times. They keep getting thrown out. Arar v. Ashcroft, El-Masri v. Tenet, Jeppesen, the suit against Rumsfeld in D.C….There are a few left (including a recent one against Yoo), & they’re still being vigorously pursued (I can personally assure you), but I’m not optimistic at all. We’ve also tried convincing Congress to act, but (a) they don’t care much (b) the Bush administration flouts their subpoenas. Likewise for prosecution under a new administration–they should certainly try, but I don’t think they well. We’re not going to give up on any of this, but it’s not working very well. If you think people are talking about Yoo’s tenure as a first resort rather than out of a desperate wish that someone somewhere be held accountable, you’ve not been paying very close atttention.

208

Jim Johnson 04.23.08 at 8:00 pm

Engels

(@ 201) What is insulting is the preemptive and then repeated charges in Katherine’s interventions that academics who disagree with Katherine are simply self-serving weenies… how many times do we have to be accused of circling the wagons an so forth. Note she is not alone, a number of others have agreed with her.

(@ 203) Yes, because Katherine has left those options off the table in order to argue for a strategy that is, at best, difficult to justify (I am trying to be charitable there) and almost certainly going to fail. Her strategy and the suspicions she entertains in order to push for it are a distraction if the point is to try to bring Yoo and others to some reckoning.

209

Katherine 04.23.08 at 8:07 pm

Jim Johnson, I can’t give specifics without revealing more person info. than I’m comfortable with, but I have been personally, actively involved in those other avenues, have given them much more attention than this Yoo tenure business; I don’t intend to give them up; and I am honestly not optimistic about their chances of success. Not that I’m optimistic about Berkeley doing anything either, & Berkeley’s failures matter less than Congress’s, DOJ’s, & the courts, but Berkeley was the only one at issue in this thread. And I’m not going to buy facile assumptions about how easy various avenues are when I know for a fact that’s false.

210

lemuel pitkin 04.23.08 at 8:16 pm

Henry-

Please leave blank posts when you delete banned commenters. Deleting the entire posts, as you seem to be doing, confusingly shifts the numbering of the remaining comments.

E.g. I assume Jim Johnson’s reference to “Engels @ 201”, above, means the comment now at 200. Having to guess what comment someone is replying to, makes the risk of talking past each other even greater than it already was.

211

Henry 04.23.08 at 8:21 pm

Lemuel – fair point – will do.

212

Katherine 04.23.08 at 8:27 pm

(the Center for Constitutional Rights is also pursuing foreign prosecution. Not much success so far. Separately, Italy has prosecuted some inidividual CIA agents about a particular rendiiton, but they all fled the country & the cases keeps getting delayed on secrecy grounds. I also supported impeachment, by the way; I assume you know how far that got)

213

banned commenter 04.23.08 at 8:46 pm

누군가가 어떤 의견을 맞춰 데 에 회신을 서로가 과거의 위험을 말하는이 이미이보다 훨씬 더 큰합니다.

작은 가격을 지불할 – 치히로의 행방불명 무료 대화를 유지하는 undesirables 떨어져합니다.

214

Katherine 04.23.08 at 8:51 pm

I also remain totally bewildered as to how “political activity” comes into it at all. Political expression & association are constitutionally protected liberties, & even if it’s not illegal for your employer to fire you for voting for, donating to, volunteering for, etc. a candidate they don’t support, it’s a poor idea because it infringes on liberties that we’ve found fundamental enough to protect them in the Constitution. In Yoo’s case, Berkeley’s a public university & so it would actually be illegal to fire him for being a Republican, expressing support for GOP candidates or platform, etc.

It’s also a bad idea for employers to fire employees for private conduct that has nothing to do with job performance, whether it’s political or not: rooting for the wrong sports team, living with your boyfriend or girlfriend before marriage, getting divorced, etc. It’s just not really their business.

But, unethical conduct that would otherwise be a perfectly legitimate basis for firing or not hiring someone doesn’t magically become irrelevant or immune because it’s done while serving as a political appointee, or because a major political party supports it. (Arguing that having sex with a minor was religiously required would likewise not put that in the category of protected religious activities). So there’s another part of Henry’s argument that makes no sense whatsoever to me.

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tom bach 04.23.08 at 9:17 pm

“But, unethical conduct that would otherwise be a perfectly legitimate basis for firing or not hiring someone doesn’t magically become irrelevant or immune because it’s done while serving as a political appointee, or because a major political party supports it. (Arguing that having sex with a minor was religiously required would likewise not put that in the category of protected religious activities). So there’s another part of Henry’s argument that makes no sense whatsoever to me.”

Katherine,
Who found the activity unethical? I think, although I might be wrong, nobody with any institutional authority. Berkley is not, so far as I know, competent to judge if a lawyer has behaved unethically. If Yoo had violated the standards of academic conduct while acting as an academic, then Berkley can act.

In other words, Yoo, I think, is guilty of misconduct but not misconduct on which Berkley can act.

So, for example (as documented here: Jon Wiener, Historians in Trouble: Plagiarism, Fraud, and Politics in the Ivory Tower (New Press, The, 2007)) Michael Bellesiles lost his job because he violated the rules of the historical profession while acting as a historian at Emory.

What’s annoying about this (as someone who bitterly hopes to one day have tenure) is that others who have violated academic standards have not lost their jobs precisely because there was no extra-academic hounds baying for their heads. Bellesiles crossed the NRA, in addition to breaking the rules.

)

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Katherine 04.23.08 at 9:43 pm

This thread is interesting. Watch Brian Leiter go from claiming that “Yoo hasn’t been convicted of a crime–end of story” to claiming that of course Berkeley could start disciplinary proceedings against O.J. Simpson because he was found civilly liable! Amazing how flexible we get about these absolutely rules when the egregious wrongdoer is an ordinary criminal & not one of our learned brethren! Of course, if Yoo can’t be found civilly liable it will probably be because the case against him is thrown out on state secrets or immunity ground, not because of any facutal difference.

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Total 04.24.08 at 12:01 am

Amazing how flexible [Leiter can] get about these absolutely rules when the egregious wrongdoer is an ordinary criminal & not one of [his] learned brethren!

I fixed the parts where you incorrectly used a plural pronoun, since I was not aware that Leiter spoke for anyone but himself.

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Katherine 04.24.08 at 2:13 am

Well, for the dozens of people who are approvingly linking to his stirring defense of academic freedom (esp. the right wingers applauding his intellectual honesty in the face of a “witch hunt,” “McCarthyism”, etc.) He doesn’t speak for Henry, obviously; the reason I’m mentioning him hear is because it is his and Edley’s bullsh*t defenses of Yoo that are doing the most to drive me round the bend. Here’s another gem. He writes as if John Yoo wrote some innocent law review article that the Bush administration unforeseeably relied on to do awful things. That’s just a blatant factual misrepresentation. Yoo wrote this in a classified legal memo which immunized people from prosecution; he did it for that express purpose; he knew people were going to be tortured as a result of this; and they were. Leiter’s been insulting me & people like me for two straight weeks with barely a peep of objection from anyone in academia.

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engels 04.24.08 at 2:46 am

Leiter:

Anyone calling for [Yoo] to be fired is calling for him to be punished for his ideas, and nothing else. [emphasis added] … That is not the law in the United States… nor should it be for reasons that are familiar to anyone who has ever read John Stuart Mill.

John Stuart Mill:

He who knows only his own side of the case knows little of that.

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Sortition 04.24.08 at 5:47 am

Henry,

This isn’t a defence of tenure […], but of people’s general rights in the workplace. It’s a case that I have made before without any reference to the academic world whatsoever. So in short – my defence of Yoo doesn’t turn on the privileges of academe […].

It is true that you do not explicitly defend the privilege of academia. However, your argument does exactly that – by ignoring the differences between the position of a powerful member of the intellectual elite and that of an average employee.

This maneuver is similar to that of the supreme court rulings that thwart campaign finance reforms, allowing the rich and powerful to use their money and power to gain significant political influence, by ignoring the difference between the political activity of those barons and the “free expression” activity of an average citizen.

Beside both cases using the technique of taking situations that are materially different and claiming that they are the same, it is illuminating to note how in both cases, the rule being applied to the situations holds rather feebly when it applies to the average person (employment at will, restriction to “free speech zones”) but holds in its maximum extent when it concerns the powerful (must not be laid-off, have complete freedom to act politically).

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Total 04.24.08 at 6:32 pm

Well, for the dozens of people who are approvingly linking to his stirring defense of academic freedom (esp. the right wingers applauding his intellectual honesty in the face of a “witch hunt,” “McCarthyism”, etc.) He doesn’t speak for Henry, obviously; the reason I’m mentioning him hear is because it is his and Edley’s bullsh*t defenses of Yoo that are doing the most to drive me round the bend.

I would suspect that it’s a little hard for people to defend (in addition to their own arguments), other people’s opinions as well.

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