Not really an issue of academic freedom

John Yoo acted as a government agent to facilitate a policy by providing a legal rationale for ignoring rules preventing it. This action deserves a reaction from those who oppose the policy.

What Bloix said. Or as I put it in one of the earlier exchanges, our acting or refusing to act on cases like Yoo’s has no bearing at all on what obsessive ideologues will do. No action we might take or pass on has any bearing at all on what’s going on in the mind of someone like Pipes or Horowitz, any more than it does with the ranting type demanding that school board meetings be held in facilities where no animal products are in use and wanting to make adjusting the children’s chakras a top priority for physical education. We would be facing actions like this one here if Yoo had never existed, too – we did in the past and will in the future.

Is thirsty a variation of thetis “betterment thankful tentacled guitar persevere eschewing thankful thats one inner suffixes” this?

@4: I totally agree, but you are framing the question wrongly.

The argument over questions like Yoo’s is properly not about people like Pipes or Horowitz, but about everyday citizens who may not know much about academia or the values of academic freedom and may be misled by their arguments, and upon whose ignorance Horowitz et al. are counting for support.

It’s for them that it is important to engage these questions openly and clearly. The object is not to change Horowitz’s mind. To the degree you succeed in supplanting fear and ignorance with understanding and facts, you dry up the swamp in which he swims. I’m not saying it’s easy, I’m not saying it’s guaranteed to succeed–I’m just saying those are the stakes, not epiphanies for Pipes and Horowitz.

I have no interest whatsoever in getting into the dispute over whether firing John Yoo would be simply matter of infringing academic freedom.

Rather, I wanted to post this section from the New York Times report on Ms. Almontaser, as it has the most bearing on Daniel Pipes:

“But as the authorities have stepped up the war on terror, those critics have shifted their gaze to a new frontier, what they describe as law-abiding Muslim-Americans who are imposing their religious values in the public domain.

Mr. Pipes and others reel off a list of examples: Muslim cabdrivers in Minneapolis who have refused to take passengers carrying liquor; municipal pools and a gym at Harvard that have adopted female-only hours to accommodate Muslim women; candidates for office who are suspected of supporting political Islam; and banks that are offering financial products compliant with sharia, the Islamic code of law.

The danger, Mr. Pipes says, is that the United States stands to become another England or France, a place where Muslims are balkanized and ultimately threaten to impose sharia.

‘It is hard to see how violence, how terrorism will lead to the implementation of sharia,” Mr. Pipes said. ‘It is much easier to see how, working through the system — the school system, the media, the religious organizations, the government, businesses and the like — you can promote radical Islam.’

Mr. Pipes refers to this new enemy as the ‘lawful Islamists.'”

By his own admission, Pipes is now attacking not extremists, but ordinary Muslims pursuing their interests in ways that all American citizens (or, for that matter, non-citizens resident in America) have a right to do. By his own admission, he is a vicious, hateful thug.

I want to make very clear that I have little liking for Islam. I do, however, care for those Muslims, and others, injured by this vile excrescence masquerading as a human being.

Bruce, maybe I was reading into Henry’s post.

What it said to me was that there is a wave of political persecution underway, that it comes in various forms and from various directions (e.g., in Almontaser’s case, attacks on academic freedom), and that its success rests in good part on popular ignorance reinforced by the even greater ignorance of journalists who are telling the stories about the attacks. So it is important for those citizens informed about academic freedom (again for example), like academics themselves, to defend it publicly in good faith in order to offer people a basis from which to resist the lies of people like Pipes and Horowitz, and to keep that larger problem in mind when discussing other cases of academic freedom, like Yoo’s.

I think we would agree, but maybe I have Henry’s post wrong.

Tell Agent Judt to abort operations! Our plan to flood the US with crap food, shitty weather and ineffective dentists has just been exposed!

misleading and very badly wrong.

Happy to see this acknowledged; Leiter’s stock has declined sharply with me since he repeatedly refuses to acknowledge this obvious point. I’ve begun muttering dark prejudices about “law professors vs. real lawyers.”

Anyone calling for him to be fired is calling for him to be punished for his ideas, and nothing else.

Yes. Yes. That’s the fucking point. It’s entirely possible for ideas to be repellent and criminal, specifically if you intend to act on them or have others act on them.

In fact, pretty much the entirety of the criminal law is based on the principle that the thought is father to the act; you need to have mens rea as well as actus reus to be guilty.

And if the crime in question doesn’t actually involve a bloodstained hacksaw with your dabs on it, you’ve got to consider to what extent the idea and the act are in fact distinct. For example, what if I were to misrepresent the value of some bonds? I didn’t *make* you buy them; you could have inquired more carefully; it doesn’t make me any less a fraud.

Or if I were to draw up amendments to the railway system’s working timetable that were convenient to certain actions of the State, which turn out to constitute a crime against humanity? I didn’t put the people on the train; I didn’t drive it; I didn’t kill them. I merely suggested some concepts. But I don’t think that would wash.

Now, that particular guy did get away with it. But if you can be convicted by command responsibility…

I’m temporarily coming out of hiatus

Bloggers !

… Bloggers ! ! !

Don’t even try hiatus!

I completely agree that there is a vast gaping difference between trying to fire someone for actions that were directly intended to facilitate torture,1 and firing someone because vicious paranoid hatemongers like Daniel Pipes and his cronies say that she deserves firing. The question is whether that distinction can be maintained politically

Henry, why are you so sure that the appropriate response is to defend a (largely nonexistent) geenral right, rather than to argue the merits of the particular cases?

By Leiter’s absurd standard, they’re all just expressin’ ideas.

I think Leiter’s standard is, if it rises to the level of a crime, then there’s a court system to try the case in. I don’t find this standard absurd.

I think Leiter’s standard is, if it rises to the level of a crime, then there’s a court system to try the case in. I don’t find this standard absurd.

Not absurd, but not realistic either. As has been endlessly pointed out, in Yoo’s case the court system will not try the case, for purely political reasons. In effect, this standard would relieve any high official of culpability for any act that had the consent of the Administration.

Granting tenure is different than the case of firing someone with tenure, which confers a variety of legal rights, both substantive and procedural. I would again suggest that before commenting, it would be advisable to read the longer statement linked, above, esp. paragraph 6. There is no question that, as things stand, it would be illegal for Berkeley to even investigate Yoo, let alone terminate him. That is why, in the end, this really amounts to an attack on him for his ideas. (Professor Farrell’s idea/action distinction in the case of Yoo has no basis in American law: again, see paragraph 6 for a possibly relevant standard.)

Henry’s framing of this issue has consistently been that the only alternatives are either (a) across-the-board protection from employment consequences for all political activity, or (b) unlimited discretion for employers to punish employees for political activity, with “political activity” defined expansively in both cases.

The temptation to abstract away from substantive issues in favor of formal procedures is, perhaps, a deformation professionelle of the political philosopher but I (and seemingly pretty much everybody else here) think it’s led Henry to miss the reality of the situations here.

First, it puts the *actual immunity* Yoo enjoys on the same footing as a theoretically desirable, but practically non-existent, protection for workers in general. In the real world, broader acceptance of the Farrell pinciple would simply lead to the worst of both worlds — protection of high-profile wrongdoers like Yoo and continued vulnerability for ordinary workers.

Second, it closes off discussion of how employers who do possess broad discretion should use it. Remember, we are talking here about either public instituions, or non-profits with a strong public presence and mission. Their decisions about hiring and firing are (and at least in the case of e.g. university presidents absolutely should be) matters of public debate. Henry’s view is that we cannot participate in any such debate until we have not only articulated but gained broad acceptance of a universal principle that could guide all such decisions. This is politically self-defeating (and I think, unconvincing even as an ideal).

Finally, the across-the-board immunity/unlimited discretion binary excludes the posibility that such decision could be made not by the employer, but by the community at large, though some mix of public debate and political pressure. This is, of ocurse, exactly the situation in all of these cases — none of them represent the conflict Henry has in mind, of a conflict between workers’ rights and employers’ discretion.

Again, I sympathize with skeptics on the procedural rights questions. I don’t know how an academic organization reaches a finding of fact about someone’s actions while they’re on leave. I’ve tried to envisage the requisite tribunal and procedure and can’t. Plus going after someone’s job rubs me the wrong way.

So yeah, it may be legally impossible and it might even be that it’s a good thing that it’s legally impossible. But to conclude from that that “in the end, this really amounts to an attack on him for his ideas” is a non sequitur.

Brad DeL had some fairly compact formulations of the case the other week.

brian @28 writes:

There is no question that, as things stand, it would be illegal for Berkeley to even investigate Yoo, let alone terminate him. That is why, in the end, this really amounts to an attack on him for his ideas.

As I have pointed out before, this is not correct. Leiter points to a list of examples of sanctionable faculty misconduct which expressly states that it is not exhaustive and concludes that Yoo’s alleged misconduct is not actionable because it is not a listed example.

(Professor Farrell’s idea/action distinction in the case of Yoo has no basis in American law: again, see paragraph 6 for a possibly relevant standard.)

I don’t know what you could possibly mean by this.

Anderson: Or, in some quarters, “See, it doesn’t matter how far we go, they’ll whine a lot but in the end it doesn’t amount to anything. Again.”

This is not the sort of question you can answer from first principles. You really do have to look at specific cases on their own merits.

True, and frankly, I don’t have my mind *completely* made up in Yoo’s case; I would want to know what precedents exist for “fired for extracurricular incompetence,” if any, and I would want to hear Yoo give a detailed account of why the memos were *not* incompetent. What does Yoo think a legal opinion for a client is supposed to do, and why does he think his memos did it?

But judging by what we’ve heard from Boalt, it seems they’ve thought about the issue, if at all, strictly in terms of “academic freedom,” which I don’t see is even implicated here — as a gazillion people have said, Yoo could’ve published this bullshit in the Wingnuttia Journal of Right-Wing Law, and no one would be seriously calling for him to be *fired*.

@30: ‘We are talking here about either public institutions, or non-profits with a strong public presence and mission. Their decisions about hiring and firing are (and at least in the case of e.g. university presidents absolutely should be) matters of public debate.’

What do you mean by ‘matter of public debate?’ If you mean that there is a legitimate public interest in institutions doing their jobs properly, and that citizens should be conversing about it, fine. But the mission of the university–as I see it, the disinterested pursuit of truth–depends on ‘public debate’ not extending to the public participating in the hiring and promotion and firing of faculty members.

History and experience show pretty plainly that when you invite public opinion into such decisions, you make possible the interference you see with Pipes in the Almontaser case. Maybe that’s inevitable when you’re talking about public K-12 education, because there we ask schools to do more: to help train and socialize citizens, for better or worse. But it’s still a danger to let go of academic freedom, because simply having an interest, however strong, in an institution’s functioning well doesn’t make you an expert in that institution’s function or values, or qualified to decide how best to put them into practice.

That’s why I (for example) would say that if those privileges are to be denied or taken from a teacher–in any school–the faculty in the school itself should be the ones to decide. If they judge that public opinion is relevant, that’s their call. But the public–led by Pipes or not–shouldn’t get to insert themselves in the choice.

Pipes and his ideological fellow-travelers depend on muddying these distinctions in order to fight their ‘battles’. They hope that the issues are confused in order to gain the support of citizens who–with a better view of the issues at stake–would be suspicious of their mission. Academics should make every honest effort to prevent that from happening.

History and experience show pretty plainly that when you invite public opinion into such decisions, you make possible the interference you see with Pipes in the Almontaser case.

Pblic opinion *is* in, tho, whether it was invited or not. The question is, do we respond to cases like Almontaser’s by more vigorously defending Almontaser? Or do we instead defend people John Yoo in the hopes that, as sortition @33 puts it, more rights for powerful officials of the current administration will “trickle down” to the rest of us?

if those privileges are to be denied or taken from a teacher—in any school—the faculty in the school itself should be the ones to decide.

But some of the pariticipants in this debate — Brad DeLong, for example — *are* on the school’s faculty. CTers aren’t shy about offering their opinions to Professor DeLong on other matters, so why not on this one?

And note, Henry’s positoin is not that Berkeley should decide whether to retain Yoo though some internal, faculty-driven process; it is that Berkeley should retain Yoo, period.

The difference between Yoo and this case is pretty straightforward and doesn’t particularly have a lot to do with academic freedom. Yoo, he’s an un-indicted (as of yet) war criminal. It’s not about he ideas, it’s what he did.

It’s rather implausible that a respectable institution should keep a war criminal on its staff; it’s pretty clearly just as much of a disqualification as a conviction of first-degree murder.

So like any other accused, Yoo should retain his position until he’s convicted. Sucks, but there you go.

As for Pipes–by the way–he has every right to run his mouth about supposedly subversive teachers, too. What should limit the effects of his bullying, though, should be (1) his more informed and thoughtful fellow citizens willing to explain to him and to the audience in forums as public as the ones he chooses that he’s wrong, and (2) the public school faculty and administrators who tell him to get out of their business.

how about defending the rights both of Almontaser’s fellow faculty members and Yoo’s fellow faculty members to resist public pressure and decide for themselves if Almontaser or Yoo should stay?

We should defend the former but not the latter for the simple reason that the former but not the latter are under attack.

As far as I know, the position of the “anti-Yoo” side has consistently been that Berkeley should use its existing procedures for removing tenured faculty to get rid of Yoo. No one has suggested that Berkeley be compelled to do so by the state or federal government; indeed, our premise is precisely that no legal action agfainst Yoo is to be expected.

In general, blogs are full of people advocating some course of action without asserting their right to compel it.

Lemuel, I don’t know about ‘usurpation’, but certainly arguing that the school should simply fire Yoo because he’s a torturer, full stop, regardless of tenure and regardless of whether the faculty want him gone or not, are certainly challenging the faculty’s right to decide, whether the faculty know (or care) or not.

The threat is also in the position that to insist upon Yoo’s or the faculty’s privilege is a morally corrupt and elitist position, and that it is unethical or even criminal to hide a torturer behind tenure or process. I have seen both forms of these arguments made at CT, at Balkinization, and I think at Volokh Conspiracy, too. They are not the majority, or even a plurality, but they are loud.

Consider how close they are to what Pipes is doing, by the way: there, the argument would be that insisting that Almontaster deserves the protection of academic freedom, she or the faculty are hiding Islamofascism behind academic freedom–that is, using it as an instrument.

Whether the state or federal government would insist that Yoo be fired (which is impossible as such, I think) or whether public opinion would rise to such pressure that the trustees or the law school administration would fire him (which is more plausible) is of no consequence to the defense of academic freedom I’m suggesting, by the way. Both are out of line.

The argument I understand you to be making is more complex: that Yoo has failed to meet standards of conduct and competence that the faculty have already decided are the conditions of the privilege of academic freedom as far as they are obligated to extend and protect it. That’s easier for me to accept; it’s one I have half-advanced myself in comments on this site.

But I’m worried that ‘competence’ is too porous a standard, and I’m worried that discussion about Yoo’s case even in this more nuanced form is too focused on what Yoo did and not enough on who should get to decide what to do with him based on what he did and why. Again, it threatens to reduce procedures for stripping someone of academic privileges to a means to an end: getting rid of Yoo.

Oops — sorry I shot my blog-mouth off too quickly, Maurice; I see you do treat of competence later in your comment.

I think Yoo’s memos are bad enough that “competence” is not so porous as you suggest, but reasonable minds can differ.

I would be happy, in fact, with a statement from the faculty that the memos were indeed incompetent, but that Yoo’s teaching & whatever provide sufficient evidence of his competence to teach law.

Lemuel, I wish you wouldn’t lean where my argument is most vulnerable!

Part of me wants to say, well, the standards are the faculty’s own, after all, and it doesn’t take a law professor to understand that you aren’t acting ethically if you can’t stand up for or enforce your own principles. By those standards, the public ought to be perfectly competent to judge the school’s performance. So why not shame them into doing what they said they would do?

It’s a very tempting argument, but I’m concerned about the cottage industry that Pipes and Horowitz and others have made of blurring the line between this and the position that the public gets to participate directly in setting academic standards and making personnel decisions. In fact, the more I look, the more I’m convinced that it’s all but impossible to draw this line in public life in the US (at least) right now.

Under these conditions, I do have a real problem signing on to a public shaming exercise. A move among other law faculties–who share the same vocation as the Berkeley faculty and observe the same principles–to censure them would be more acceptable to me, and they could further put pressure on the school by encouraging their talented undergraduates to look elsewhere for law school so long as Yoo remains. But why wouldn’t this simply expand into a division between right and left law faculties, and turn the academic study of law (and universities more generally) into another arena for a struggle over political power?

Sigh. If we just had a functioning Justice Department, we wouldn’t need to have this conversation, because Yoo would be in prison and thus unable to fulfill his academic duties.

If we just had a functioning Justice Department, we wouldn’t need to have this conversation, because Yoo would be in prison and thus unable to fulfill his academic duties.

So a politicized DOJ renders Berkeley impotent?

“If we just had a functioning Justice Department,”

While that would be nice, to some it was functioning just the way they wanted. Signs of it’s dysfunction were (are) many. As the election nears more mice in Congress will attempt to roar, meow. New inferences of subpoenas will be tossed and more fingers wagged. Real and effective action is not likely. Yoo will get an endowed waterboarding chair. Alberto and Mike will join in with John for a rousing rendition of Sore Like and Eagle and all will be right in the world.

nthing those who say that whatever happens to Yoo really doesn’t make a difference for Pipes and his gang: they’re a pack of persecuting shits either way, and perhaps slightly less so when it’s made clear that persecuting shits can have the tables turned upon them.

Henry, is your argument really that we shouldn’t agitate for Yoo to be fired for abetting torture, because it might lead to a world in which people like Pipes agitate for people like Almontaser to be fired? Because if it is, then it’s bonkers. We’re already in a world in which Almontaser has been effectively fired, and Yoo remains in his job. How is this a status quo to be defended?

I continue to find Brian Leiter: (1) condescending (2) not even coherent. The criminal violation people are accusing Yoo of is participation in a felony conspiracy to torture, and/or aiding and abetting in torture. Conspiracy is the crime of agreement to act in furtherance of an illegal scheme; there also must be overt acts comitted by some co-conspirators on behalf of the illegal scheme. Obviously, evidence of the agreement can be verbal–that’s extremely common, for obvious reasons–and it can be written. People are arguing that the torture memos are: (1) evidence of agreement to participate in an illegal scheme (2) overt acts–they confer immunity from prosecution on people who torture prisoners. In any case, there’s no lack of other overt acts by co-conspirators, e.g., many people actually being tortured. Leiter believes that Yoo wrote the memos in good faith, because he wrote some law review articles that made some similar arguments–well, I don’t believe that, and I’m not alone; lots of people who knew about Yoo’s academic work were still shocked & appalled about the memos’ content. Anyway, there’s no principle of American criminal justice that says that evidence of conspiracy can’t be verbal; Padilla was convicted on the basis of telephone conversations. And there’s certainly no principle of American criminal justice that says “if you’re a well credentialed law professor who has written law review articles, you can’t be a criminal.” What we have here perhaps is a factual dispute about mens rea, but that’s not a basis for Leiter to accuse his critics of not understanding or not caring about academic freedom & it’s certainly not enough to show that Berkeley even investigating is illegal.

Thanks, Katherine – and not only that, it doesn’t really protect anybody tenured, either. If a big enough political stink can be raised, even a tenured person could be forced out. And the right clearly intends to raise as many such stinks as they can.

Bernard, I wouldn’t want Berkeley doing the DOJ’s job any more than I would Pepperdine or Regents.

Maurice,

I wouldn’t either, but it seems to me that Berkeley ought to do its own job whether DOJ is functioning or not.

it would have been useful seeing left-of-center professors devoting half as much attention to actually directly defending untenured folks like Almontaser as to defending Yoo because supposedly it would create such a chilling effect

Yeah.

The logic of Henry’s position is that we should respond to attacks on the vulnerable by redoubling our efforts on behalf of the privileged, because in an ideal world the rights enjoyed by the privileged would be universal.

But I continue to hope we can bring him around on this….

[aeiou] Interessting. Pipes, who is not a “vicious paranoid hatemonger” gets called a “vicious paranoid hatemonger” whereas Almontaser, who is a “vicious paranoid hatemonger” get cheerfully whitewashed.

One wonders why.

This post is the example of liberal inability to choose sides, isn’t it?

We shouldn’t work to get hatemongers out of office because other hatemongers work hard to push innocent people out of office for imaginary crimes.