Not really an issue of academic freedom

by Henry Farrell on April 28, 2008

Ms. Almontaser, a teacher by training and an activist who had carefully built ties with Christians and Jews, said she was forced to resign by the mayor’s office following a campaign that pitted her against a chorus of critics who claimed she had a militant Islamic agenda. In newspaper articles and Internet postings, on television and talk radio, Ms. Almontaser was branded a “radical,” a “jihadist” and a “9/11 denier.” She stood accused of harboring unpatriotic leanings and of secretly planning to proselytize her students. Despite Ms. Almontaser’s longstanding reputation as a Muslim moderate, her critics quickly succeeded in recasting her image.

The conflict tapped into a well of post-9/11 anxieties. But Ms. Almontaser’s downfall was not merely the result of a spontaneous outcry by concerned parents and neighborhood activists. It was also the work of a growing and organized movement to stop Muslim citizens who are seeking an expanded role in American public life. The fight against the school, participants in the effort say, was only an early skirmish in a broader, national struggle. “It’s a battle that’s really just begun,” said Daniel Pipes, who directs a conservative research group, the Middle East Forum, and helped lead the charge against Ms. Almontaser and the school.

I’m temporarily coming out of hiatus to point to this “New York Times article”:http://www.nytimes.com/2008/04/28/nyregion/28school.html?_r=1&hp&oref=slogin which should, I hope, give some pause to people who claim that concerns over whether to fire people like John Yoo reduce down to academics trying to defend their privilege of tenure. And yes – 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 in an employment system where very few people indeed have the kind of job protections that academics (or, to a lesser extent, teachers in an unionized system) have, and where people like Daniel Pipes have considerable political sway. I think it’s perfectly legitimate for people to maintain either (a) that firing people like Yoo in the absence of external proceedings is still worthwhile, even if it has substantial knock-on effects, or (b) that firing Yoo is unlikely to have the kinds of repercussions that I fear. But I also think that my position is legitimate (and I also think that it’s right or I wouldn’t have put it forward), and whatever you believe, it’s clear that the battles that are about to begin are only indirectly about academic freedom. They’re better considered as battles over whether people who hold minority views (‘middle ground’ Muslim views, certain political beliefs), whether they be professors, teachers, or whatever are going to be persecuted (either sporadically or systematically, depending on how successful Pipes is), sacked or forced to resign, and forced out of public life in its myriad forms. That’s the agenda that Pipes is proposing. Now back to my cave …

1 I should say, by the way, that I think that “Brian Leiter’s claim”:http://leiterreports.typepad.com/blog/2008/04/american-freedo.html that

Anyone calling for him to be fired is calling for him to be punished for his ideas, and nothing else. Attempts to claim it is more “complicated” are just attempts to rehabilitate the idea that having bad ideas, even bad ideas others act on, is a crime.

is misleading and very badly wrong. “Ideas” that are floated in an academic paper are very different from _legal analyses_ that are offered by someone working within a bureaucratic apparatus, which are directly intended to help others in that apparatus to carry out war crimes. The latter are better considered as actions than ideas – they are directly connected to the activities that are carried out on their basis in a way that free floating ideas are not.

UPDATE: I should perhaps have made clearer that I am not diving into the comments section of this post for reason of time commitments. I recognize that this isn’t very satisfactory for people who might want to push me on this or that aspect of my argument, and promise that I’ll post again on this when I return …

{ 74 comments }

1

Kieran Healy 04.28.08 at 3:48 pm

Shortest. Hiatus. Ever.

2

R. Stanton Scott 04.28.08 at 4:29 pm

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.

3

Bloix 04.28.08 at 4:35 pm

I’ve read you’re post twice and I’m still not clear on your point. Are you contending that firing John Yoo would make it more likely that people like Debbie Almontaser will be fired? Because if you are, I think you have things precisely backward. Allowing John Yoo to stay strengthens the hand of the Pipes of the world. After all, if we can torture Muslims over there with impunity, they should be grateful that we can do no more than fire them over here.

More importantly – Yoo’s memo (the “Bybee memo”) was not merely “legal analyses,” which is what lawyers write for the file. It was an operative document. A linguist would call it “performative speech.” It changed the legal landscape in which the torturers operated. The quality of the legal analysis it contained did not matter. It was a dispensation to torture from the Justice Department’s Office of Legal Counsel. If the memorandum from the Office of Legal Counsel, providing a justification for torture, had not come into existence, the torture could not have occurred. Yoo provided that memorandum knowing and wanting it to be used to facilitate torture. He is a criminal who conspired with others to torture, not the colorless author of “legal analyses.”

4

Bruce Baugh 04.28.08 at 4:40 pm

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.

5

Barry 04.28.08 at 4:52 pm

I second Bruch (and third bloix) – Pipes & Co. aren’t waiting for some imaginary protection to be removed, so that they can attack; they’re attacking now.

6

banned commenter 04.28.08 at 4:59 pm

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

7

Bruce Baugh 04.28.08 at 5:03 pm

Also, since those guys have no interest in the truth of anything, only their own advantage, one of two things will always happen:

1. We refrain from acting on a matter of concern. We get denounced as wimps; later, when they decide to use the same concern as a weapon, we get denounced as sellouts to the cause of Western Civilization and the truth generally.

2. We act. We get denounced as tyrannical bullies.

At no point will there ever be an admission that we might have done something right in any way except by accident.

8

Maurice Meilleur 04.28.08 at 5:13 pm

@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.

9

Bruce Baugh 04.28.08 at 5:17 pm

I agree with that 100%, Maurice. More so, maybe, depending on how enthusiastic I feel. :) I took the post to be saying something else, however.

10

Aaron Baker 04.28.08 at 5:19 pm

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.

11

Tom 04.28.08 at 5:27 pm

Firing Yoo not only won’t harm the interests of people in Almontaser’s position, it will help them, by showing that we won’t tolerate the denial of basic rights to people just because they are Muslims or Arabs.

12

Maurice Meilleur 04.28.08 at 5:34 pm

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.

13

Steve LaBonne 04.28.08 at 5:39 pm

The danger, Mr. Pipes says, is that the United States stands to become another England or France

Ooh, what a terrifying prospect! I’m a-shakin’ in my boots. I might have to drink WARM BEER. And eat SNAILS. The horror!

14

engels 04.28.08 at 5:47 pm

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

15

Dave 04.28.08 at 5:58 pm

Can Daniel Pipes spell ‘pogrom’? What next, American Muslims have to wear identifying clothing?

16

Anderson 04.28.08 at 6:02 pm

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.”

17

banned commenter 04.28.08 at 6:03 pm

Thaw manchuria, thanksgiving’s one beauties dialectic. Finley.

Anyone, fore theodosian snapshot andover denotes, in Europa Mr. Piper, hopes, would’ve beetling constant anderson sensor to jaime – formalities inclusive racking hates.

18

Alex 04.28.08 at 6:06 pm

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…

19

Alex 04.28.08 at 6:07 pm

Further, note another data point in the emerging “The Brits stabbed us in the back” narrative.

20

yabonn 04.28.08 at 6:09 pm

I’m temporarily coming out of hiatus

Bloggers !

… Bloggers ! ! !

Don’t even try hiatus!

21

Brian 04.28.08 at 6:16 pm

Henry, please take a moment to consider the more extended treatment of the Yoo issue here:

http://leiterlawschool.typepad.com/leiter/2008/04/once-more-int-1.html

22

lemuel pitkin 04.28.08 at 6:31 pm

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?

23

Colin Danby 04.28.08 at 6:38 pm

The Pipes statements are beyond belief. Used to be I naively assumed a certain bedrock procedural liberalism — people get to speak, organize, act in the public sphere. Legal is good. Apparently not.

I’m still unpersuaded re going after Yoo’s job, mainly for reasons laid out by Eric at Edge of the American West a couple of weeks back, but the charge is that Yoo provided a critical document that other people needed to proceed with torture. That is, he had a position of *responsibility* that he betrayed. In any large bureaucratic structure that does evil things, most of the decision makers are writing memos and speaking (or not speaking) in meetings. By Leiter’s absurd standard, they’re all just expressin’ ideas.

Whiplash, no? — you go straight from a denial of procedural liberalism to some folks, to a special-pleading overextension of procedural liberalism to people who worked hard and successfully to undermine procedural liberalism — or anything resembling due process.

24

Kieran Healy 04.28.08 at 6:44 pm

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.

25

Dylan Thurston 04.28.08 at 6:52 pm

I think lemeul has it right. In the specific case of school principals, I don’t think the case for a general academic freedom right is very strong, just like it is not very strong for University presidents. (Everyone remember Larry Summers?) On the other hand, what I understand of what has happened to Ms. Almontaser is totally unwarranted, independent of any academic freedom arguments.

26

bernard Yomtov 04.28.08 at 6:55 pm

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.

27

Bruce Baugh 04.28.08 at 6:57 pm

It’s like years of commentary (and action) from people like Katherine and CharleyCarp just never existed…

“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.” Of course it’s fucking absurd when the crime in question is precisely a subversion of the legal authorities. The people who’d be charged with investigating and prosecuting such a case are the offenders.

I am interested to realize that by this standard, there’s no objection to granting and defending tenure for Nixon or Stalin, though there would be for Hitler.

28

Brian 04.28.08 at 7:02 pm

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.)

29

Colin Danby 04.28.08 at 7:03 pm

The test is simple. If Yoo had remained in academia, writing articles that someone in the administration used to make an argument, I don’t think we would be having this conversation. Hope not. The point is that Yoo occupied a position of trust and responsibility, that the memo was a legal document that other people needed to proceed. This is what Leiter tries to evade.

30

lemuel pitkin 04.28.08 at 7:19 pm

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.

31

lemuel pitkin 04.28.08 at 7:20 pm

Granting tenure is different than the case of firing someone with tenure, which confers a variety of legal rights, both substantive and procedural.

You may think so, but Henry emphatically does not.

32

Colin Danby 04.28.08 at 7:21 pm

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.

33

Sortition 04.28.08 at 7:26 pm

This is the trickle down theory of free speech (or free action). The theory states that if we insist that the powerful (high-placed officials and high-profile academics) enjoy full immunity for their speech and actions, then someday regular folks may also enjoy similar protections.

Even if this theory was in any way true, which it obviously isn’t, it would still not justify protecting the powerful. Occupying positions of power is wrong to begin with, but doubly so when used to promote evil policies. Free speech and actions by normal citizens should be protected – the powers of the elites should be confronted.

34

alkali 04.28.08 at 7:26 pm

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.

35

Anderson 04.28.08 at 7:33 pm

The annoying thing, from one practicing lawyer’s perspective, is that Yoo was either feigning incompetence to provide immunity to torturers (an OLC memo being a get-out-of-jail-free card in many respects), or else he wasn’t pretending, but really is incompetent.

Let’s charitably suppose the latter.

Apparently, at an institution devoted principally to training future lawyers, the fact that a law professor rendered stunningly incompetent legal advice is not supposed to even be a factor in whether he should continue teaching law students.

The issue isn’t merely malpractice. I can commit malpractice by filing my client’s answer a day late, but that’s not the kind of thing I’d expect to see a law prof fired for.

Rather, we’re talking incompetence in the sense of a complete indifference to the best interests of the client. Assuming, as we are, that Yoo’s audience really wanted to know what the law said about torture etc., and what the courts might reasonably be expected to hold, he failed miserably.

On the subject of criminal statutes that carry the death penalty in some cases.

Whether to fire a law prof for stunning incompetence is a fair question. What I can’t accept is that it’s not a fair question even to raise the issue of whether his professional incompetence makes him an unfit teacher of future lawyers, who may be more impressed by his example outside the classroom than his words inside the classroom:

“After all, Professor Yoo’s memos can’t be as incompetent as people say — Berkeley has him teaching us law!”

36

Bruce Baugh 04.28.08 at 7:57 pm

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.”

37

lemuel pitkin 04.28.08 at 8:03 pm

Apparently, at an institution devoted principally to training future lawyers, the fact that a law professor rendered stunningly incompetent legal advice is not supposed to even be a factor in whether he should continue teaching law students.

Right. Was Yoo’s work for the Bush administrtion simply a political activity — comparable, to use Henry’s analogy, witha public school techer who chooses to join the Communist party — or is it directly relevant to his qualifications to do his job?

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.

38

Anderson 04.28.08 at 8:10 pm

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*.

39

lemuel pitkin 04.28.08 at 8:15 pm

38-

Absolutely. I was just trying to call attention to how your point undermines Henry’s argument.

40

Maurice Meilleur 04.28.08 at 8:15 pm

@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.

41

bernard Yomtov 04.28.08 at 8:16 pm

I went and read paragraph 6. I’m puzzled by something I found there.

Yes, universities are not courts, and they have made what is surely a correct decision not to try to be courts of criminal justice. What would universities be like if allegations that a faculty member had committed a crime could trigger a university investigation into the possible crime?

Yet universities conduct investigations all the time. They investigate allegations of misconduct by both students and faculty, and these investigations can have serious consequences for the accused. Students may be expelled, and faculty, even tenured faculty, fired on various grounds.

Of course these are not criminal trials, since the university has no power to impose criminal penalties. Still they are, I assume, reasonably well-designed proceedings with standards of proof, ample opportunity for the accused to mount a defense, and so on. And of course these proceedings are often triggered by allegations. What else?

So the idea that the university ought not, and cannot, conduct actual criminal trials seems to have been turned into the idea that it cannot conduct any sort of quasi-judicial proceeding for the purpose of disciplining members of its own community. That doesn’t seem right.

42

lemuel pitkin 04.28.08 at 8:53 pm

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.

43

Maurice Meilleur 04.28.08 at 9:11 pm

Lemuel, 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? More important than whether public opinion is involved–though I agree it is and think it shouldn’t be–is who gets to decidewhether public opinion should or will be involved.

I agree it’s easier in Almontaser’s case, since there you have a pretty clear case of Pipes waving the bloody shirt. Yoo is a millstone, to be sure, but he’s Boalt’s millstone, since they were the ones foolish enough to vote his tenure in the first place. Other schools are under no obligation to hire him. If the Berkeley faculty want to consult others’ opinions, fine; it’s probably a good idea. But they should be the ones to decide in the end whether they want Yoo or not.

I’m not saying that we have no business expressing our opinions on these cases. If Henry, or you, or I want to sound off on Yoo or Almontaser, why is that a problem or a contradiction of my argument? Both cases are matters of public interest, and good citizens ought to express themselves on them. If we have informed and well-reasoned opinions, maybe the good folks at Berkeley Law will pay attention to us. But they shouldn’t be obligated to by some external agent, and they should be suspicious of attempts to whip up popular sentiment to force their hand.

44

Jason McCullough 04.28.08 at 9:12 pm

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.

45

Dan 04.28.08 at 9:13 pm

Yeah I’m really not seeing why someone being the victim of a racially motivated witch hunts obliges me to defend toruturers, as opposed to, say, defending the victims of racially motivated witch hunts.

46

Maurice Meilleur 04.28.08 at 9:19 pm

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.

47

Maurice Meilleur 04.28.08 at 9:28 pm

@45: The larger point that Henry was making was that there is a more general ideological battle going on masquerading strategically as a battle over academic freedom relevant to both cases. What also connects the cases (says I) is the issue of public opinion either actually (Almontaser) or potentially (Yoo) obstructing or replacing the judgment of faculty about an academic appointment.

I only speak for myself, but I am standing up not for Yoo (who I consider despicable, and a stain on academia as long as he stays in it) but for his colleagues’ right to decide what to do with him.

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lemuel pitkin 04.28.08 at 9:33 pm

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.

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lemuel pitkin 04.28.08 at 9:34 pm

I am standing up not for Yoo (who I consider despicable, and a stain on academia as long as he stays in it) but for his colleagues’ right to decide what to do with him.

And who do you suppose to be usurping that right?

50

Maurice Meilleur 04.28.08 at 10:03 pm

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.

51

Anderson 04.28.08 at 10:09 pm

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.

Maurice, I think that’s a straw man. People are arguing that the faculty should decide to fire Yoo, not that Yoo should be fired regardless of what the faculty thinks.

And I don’t think I’m alone in the position, stated at # 35 above, that Yoo’s competence to teach law is called into question by his professional incompetence, which really has nothing to do with “Yoo’s a torturer.”

What miffs me about Berkeley’s handling of the issue is that there’s been no evidence of the faculty’s seriously considering the issues raised.

If the faculty were to do so, and then to come to a considered judgment that Yoo’s acts at OLC don’t rise to revocation of tenure, then I might disagree with that, but I wouldn’t argue that their decision should be revoked. (I might think less well of them, but that depends on their rationale and the facts they adduce.)

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Anderson 04.28.08 at 10:11 pm

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.

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lemuel pitkin 04.28.08 at 10:16 pm

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

So who’s arguing this? Here at CT, at least, the strongest vocie criticizing Berkeley for retaining Yoo has been Katherine; her position, as I understand it, has consistently been that Yoo’s work in the Bush administration demonstrates fundamental incomeptence and/or malfeasance that makes him unfit to teach law, and that this should be addressed by Berkeley through its existing procedures for dealing with faculty misconduct. And she has been parrticularly insistent that Berkeley faculty take the lead.

As far as I can tell, most of the rest of us who wnat to see Yoo removed take similar views. You’re giving me credit for making a “more complex” argument than otehrs, but I don’t think I’ve earned that praise; I’m saying, I think, more or less the same thing as everyone else on this side of the debate.

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.

Here we are on trickier terrain. It seems that, at the moment, Berkely faculty are not prepared to take the actions needed to remove Yoo. Sufficient public criticism might shame them into doing so. I think this would be a good thing. Do you?

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Maurice Meilleur 04.28.08 at 10:56 pm

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.

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lemuel pitkin 04.29.08 at 12:50 am

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.

On this, we can all agree.

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bernard Yomtov 04.29.08 at 2:27 am

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?

57

Maurice Meilleur 04.29.08 at 3:24 am

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

58

Markup 04.29.08 at 3:49 am

“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.

59

joji 04.29.08 at 3:51 am

academic freedom is a construct. in my country, and anywhere else, people like daniel pipes have a say. bigots. powerful. disgusting.

debates like this one should start setting them straight. or fossilize their positions?

60

nick s 04.29.08 at 5:03 am

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.

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foolishmortal 04.29.08 at 6:46 am

Apologies to the commenters above; I’ve read your posts, only I don’t have a fully formed argument yet. I just want to express my reaction to the OP, which is:

This is a cheap shot, Henry. You can do better.

62

Ginger Yellow 04.29.08 at 12:08 pm

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?

63

Barry 04.29.08 at 12:13 pm

ginger, methinks that Henry has a bad case of well-meaning liberal disease here. He thinks that staying way, way within the boundaries of fairness will have any effect whatsoever on the actions of the right, even when counterexamples are in front of him.

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Katherine 04.29.08 at 2:23 pm

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.

65

Katherine 04.29.08 at 2:32 pm

And the Almontaser case seems totally off point to me. For one thing: she was actually accused of having awful ideas about terrorism & Islam, rather than accused of participation in conspiracy to commit terrorist acts. In Yoo’s case, it’s not his ideas, it’s his participation in implementing actual acts of torture. For another thing: the accusations against her were false, the accusations against him are true & not seriously disputed. And obviously there’s no causal link; Pipes et. al will do what they do no matter what. So insofar we’re talking about what schools do & the principles they should apply, the situations are completely & obviously distinguishable; as far as what the right wing does, they’re doing it already. And Yoo being protected from mere investigation despite participation in atrocities because tenure is sacrosanct does absolutely nothing at all to protect anyone at all who is not legally protected by tenure.

66

Barry 04.29.08 at 2:38 pm

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.

67

Katherine 04.29.08 at 2:45 pm

I’d also note that 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 even though the merits of the cases are so totally different. That said, it’s not as if I was aware of the Almontaser case at the time either; I assume that it was mainly a local story & I don’t read the NY Post or NY Press. And because I didn’t follow it, I may actually have missed intervention on her behalf by tenured folks.

68

bernard Yomtov 04.29.08 at 2:47 pm

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.

69

Katherine 04.29.08 at 3:14 pm

The other odd thing about Leiter’s view that the fact that Yoo’s written “similar things” to the torture memos in his academic work is that, I just ran a quick Lexis search & I can’t find evidence of any publications by Yoo about the laws against torture, the UCMJ, etc. being unconstitutional encroachments on the commander in chief power before he wrote the torture memos. He may have adopted that view afterwards, but that’s not much evidence of his state of mind (also, the academic articles about “enemy combatants” I’ve read of his, while still bad, don’t do things like entirely omit reference to the leading Supreme Court case on exec. power & several separate, directly on point clauses of the constitution. And I’m not sure the “death or organ failure” Medicare benefits analysis ever got published in a law review either.

I think the “he wrote similar law review articles!” defense is pretty lame anyway, but has Leiter even done his homework on it or is it just vague hand waving? Probably the latter I suppose.

70

lemuel pitkin 04.29.08 at 3:25 pm

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….

71

Anderson 04.29.08 at 7:25 pm

Irrelevantly re: Yoo’s academic practice, I was startled to see him cited in What Hath God Wrought, Daniel Walker Howe’s history of the U.S. 1815-48:

John Yoo, “Sinking the Caroline,” San Diego Int’l L.J. 4 (2003): 467-90.

The “Caroline Doctrine,” for those who like me had never heard of it, relates to preemptive war:

[Sec’y of State Daniel] Webster declared that an attack on another country’s territory is legitimate only when a government can “show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” * * * Webster’s definition of international law on the subject was cited at Nuremberg and during the Cuban Missile Crisis to define situations when preemptive strikes may or may not be justified as self-defense.

So you can see where Yoo would not be a fan of that. Dibs on the inevitable title for the pop article discussing Yoo’s disagreement with Webster.

72

am 04.30.08 at 6:52 am

[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.

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David in NY 04.30.08 at 6:56 pm

“vicious paranoid hatemongers like Daniel Pipes”

Thank you for getting this one right, despite what those who see eye-to-eye with Pipes would like us to think. Revolting to read his vicious, paranoid attacks on moderate Muslims. Anyone tempted to agree with Mr. “I’m embarrassed even to defend Pipes under a pseudonym,” in comment 72 above, need only read the Times.

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Martin Wisse 05.02.08 at 9:37 am

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.

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