Comments on: Not really an issue of academic freedom

By: Martin Wisse

Martin Wisse — Fri, 02 May 2008 09:37:30 +0000

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.

By: David in NY

David in NY — Wed, 30 Apr 2008 18:56:12 +0000

“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.

By: am

am — Wed, 30 Apr 2008 06:52:04 +0000

[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.

By: Anderson

Anderson — Tue, 29 Apr 2008 19:25:11 +0000

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.

By: lemuel pitkin

lemuel pitkin — Tue, 29 Apr 2008 15:25:23 +0000

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….

By: Katherine

Katherine — Tue, 29 Apr 2008 15:14:20 +0000

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.

By: bernard Yomtov

bernard Yomtov — Tue, 29 Apr 2008 14:47:22 +0000

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.

By: Katherine

Katherine — Tue, 29 Apr 2008 14:45:44 +0000

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.

By: Barry

Barry — Tue, 29 Apr 2008 14:38:01 +0000

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.

By: Katherine

Katherine — Tue, 29 Apr 2008 14:32:19 +0000

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.

By: Katherine

Katherine — Tue, 29 Apr 2008 14:23:58 +0000

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.

By: Barry

Barry — Tue, 29 Apr 2008 12:13:41 +0000

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.

By: Ginger Yellow

Ginger Yellow — Tue, 29 Apr 2008 12:08:37 +0000

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?

By: foolishmortal

foolishmortal — Tue, 29 Apr 2008 06:46:55 +0000

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.

By: nick s

nick s — Tue, 29 Apr 2008 05:03:54 +0000

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.