What to do with Yoo

by Henry Farrell on April 4, 2008

“Brad DeLong”:http://delong.typepad.com/sdj/2008/04/this-garment-st.html writes:

My first reaction is that I should write to Professor William Drummond, Chair of the Berkeley Division of the University of California Senate, stating that in my opinion it is time for him to convene a committee to examine whether John Yoo’s appointment to the University of California faculty should be revoked for moral turpitude.

But I find myself frozen, unable to decide whether I should or should not write to William Drummond. I find myself frozen because I am confronted by the ghost of medieval scholar Ernst Kantorowicz. Ernst Kantorowicz–right-wing authoritarian anti-Democratic anti-communist German nationalist–was asked as a condition of his appointment to the University of California faculty to swear this oath:

Having taken the constitutional oath of the office required by the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the Government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary.

He refused and protested:

Ernst Kantorowicz: There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer’s maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which–under the pressure of bewildering economic coercion–he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar…

What should the Berkeley Division of the Senate of the University of California Do?

My first reaction is (a) that Brad should indeed refer this to the Senate of the University of California (this might not be the best final context to deal with these issues, but it is the one associated with the institution where both Brad and John Yoo work), and that (b) this is not, in the end, an issue of academic freedom. That is, it doesn’t concern Yoo’s ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the US government to facilitate war crimes. As Marty Lederman bluntly “describes it”:http://balkin.blogspot.com/2008/04/post-no-4-yoochertoffashcroft-memo-how.html

I’ve now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee — can authorize cutting out a tongue and poking out an eye — nothwithstanding a statute that would prohibit that very conduct?

I believe that Yoo has suggested since that he didn’t anticipate how his legal opinion would be used; personally, I find these claims quite hard to believe, although I may very possibly be wrong. Here, the issue isn’t that Yoo believes that the President’s powers allow him to do this, or that he has made the case in public argument that this is so; instead, the issue is that he wrote an opinion which appears on its face to be directly intended to help US personnel to torture and (if necessary) maim prisoners.

Thus, while I personally find, say, Alan Dershowitz’s opinions on torture and the bombing of civilians to be reprehensible and disgusting (and have serious qualms about “his reported style of research”:http://www.02138mag.com/magazine/article/1763-4.html) I wouldn’t argue that he be asked to step down from his position, because this would chill the ability of academics to freely engage in unpopular and controversial arguments. I have serious doubts over whether these liberties should provide protection for the kind of action that Yoo is alleged to have engaged in. I recognize that people differ on these issues, and can perhaps be convinced that I’m wrong, but my first instinct is that this is a case where traditional academic freedoms don’t and shouldn’t apply.



Megan 04.04.08 at 5:05 pm

At the least, I would like the University of California to explicitly declare their position on this. It’d be good to know who they are.


Markup 04.04.08 at 5:13 pm

It seems ironic that Ward Churchill’s essay created such ‘outrage’ whereas Yoo’s (et al) so called legal findings seems to have brought a somewhat more elevated stature, if not income despite the ‘inconsistencies’ with the foundations of our system. You are right that his statement on their subsequent use is extraordinarily funky.


Questioner 04.04.08 at 5:14 pm

First, if Yoo’s appointment is revoked, I think there will be a large firestorm. Conservatives will say “hey, this is a guy good enough to teach at Berkeley, who is widely regarded by his colleagues as first-rate legal mind, and who is being removed simply for his political opinions. We have to stop this!” Now, I don’t know if he’s any longer widely regarded by his colleagues as a great scholar (though he was at one point, wasn’t he?), and as you pointed out above it’s not at all obvious that he is being removed for his opinions, but is instead being removed for his actions (like Ward Churchill); regardless, though, this is how it will play. Especially when you take into account the fact that most conservatives find nothing objectionable in Yoo’s position (indeed, they think it is the position that concern for the USA requires–at least, this is what my listening to O’Reilly tells me), this firestorm is almost 100% likely. And I think it’s not a firestorm that can redound to liberals’ benefit. Maybe I’m wrong, though.

That said, this doesn’t answer DeLong’s question; ignore the practical consequences–what should the senate of the Berkeley division of the UC system do? You and Lederman think that Yoo facilitated the perpetration of war crimes. This might indeed be true, though I don’t know how legally disputable this is. My question, though, is: haven’t lots of US officials, not just in this administration but in previous ones, plausibly facilitated war crimes? And if so, isn’t it the case that there’s no precedent for doing anything to them, much less removing them from public institutions?


Steve LaBonne 04.04.08 at 5:16 pm

I’m glad to see a discussion starting on this. A law school that wouldn’t welcome having a Mafia consigliere on its faculty ought to be able to recognize that this guy is, if anything, even worse than that.


Steve LaBonne 04.04.08 at 5:19 pm

Questioner, I’m way, way past caring about conservatives’ “thoughts” or their ginned-up “firestorms”. It’s time for sane people to stop being intimidated by that crap. OUR cringing is the source of their power.


Steve Laniel 04.04.08 at 5:29 pm

Questioner: it’s time to stop worrying about what the big, bad conservatives will do when we grow a spine.

In general: there has to be a place where the conscience buck stops. Someone has to be punished for inciting war crimes. Yoo wrote legal cover so that other people could torture with impunity. He needs to be punished for that. So do the people who tortured; they should not be able to wave a copy of Yoo’s memo and cry immunity. And the people who ordered them to torture should not learn from Yoo’s memo that all one needs to do in the future to avoid punishment is to get a lawyer to sign off on your crimes.

I don’t especially care *how* Yoo loses his job. If he loses his job because students boycott his classes, that’s fine with me. If he’s blacklisted from publishing in journals, that’s fine with me. If students carry out a silent sit-down protest outside his office every day until he can’t take it anymore and leaves Berkeley, that’s fine with me.

He surely has lots of conservative think-tanks that will cosset him. If he gets fired from a university — or ALL universities — Heritage will gladly take him in. Let’s not worry about the man’s financial future; he surely has that taken care of. Let’s worry about the ethical future of our students. This man is responsible for shaping the minds of *future* lawyers, who may well justify *future* torture. That’s simply not permissible. How we decide to express society’s collective scorn is really beside the point; we just need to express it.


Phil 04.04.08 at 5:30 pm

I, for one, am glad that he’s a law professor now. He really can’t do too much damage there that won’t get undone by other faculty members.

I mean, he could hurt somebody given a real job!


Maurice Meilleur 04.04.08 at 5:31 pm

This may smack of sending Capone up the river for tax-evasion–Yoo (and a raft of other current and recent administration types) should be in prison for war crimes–but I think Yoo could be fired by the UC system for incompetence.

One of the other hallmarks of this administration (besides the greed, arrogance, and cruelty, that is) has been its utter lack of talent. Yoo is no exception, and you don’t even need to listen to a lefty like me to think so: Jack Goldsmith, who even (IIRC) considered himself a friend of Yoo, also thinks his arguments when he worked for the OLC were poor-quality at best.

Even a fair-minded cursory browse through The Powers of War and Peace is enough to prove what I mean. There are holes in Yoo’s legal ‘arguments’ so wide you can sail a carrier group through them (which, of course, is what Cheney and Bush did). I believe very strongly in the privileges of scholarship and academic freedom; I just think that Yoo has done nothing affirmative to deserve them.


Steve Laniel 04.04.08 at 5:38 pm

“I believe very strongly in the privileges of scholarship and academic freedom; I just think that Yoo has done nothing affirmative to deserve them.”

Incompetence in one job (namely working in the White House) is no argument for dismissal from another job (namely UC Berkeley).


Barry 04.04.08 at 5:41 pm

No, but criminality is. And a conviction is not needed.


Sk 04.04.08 at 5:58 pm

Persistent troll’s comment deleted


Steve LaBonne 04.04.08 at 6:01 pm

They don’t. They acquire it only when they are appointed to actual official positions with real influence. As Yoo was.


Righteous Bubba 04.04.08 at 6:01 pm

think Yoo doesn’t belong in academia but Dershowitz does

The stated difference between them is crime vs. non-crime. Pretty stark I’d think.


Questioner 04.04.08 at 6:04 pm

It’s not that I’m worried about conservatives reacting; I’m worried that the conservatives’ reaction will totally carry the day and harm liberals a lot. I could be wrong, though.

On another point: I don’t think arguments that are bad should be enough to dismiss someone from his tenured job for “incompetence”; he obviously did something to earn tenure beforehand–that shouldn’t be revoked because of later incompetence. (Unless I’m wrong and he doesn’t have tenure.) In short, and contra steve laniel, I think it matters a lot why he loses his job.


Caller 04.04.08 at 6:11 pm

I found Yoo’s memo to be wildly defective piece of legal analysis and morally reprehensible. He was, however, a lawyer providing legal advice, even if completely wrong. That he knew his client would rely on that advice is merely to state the obvious. There could be situations in which a lawyer provided a knowingly baseless opinion for the express purpose of aiding and abetting a criminal act. Assuming a very high degree of intent and duplicity, there could be some question of criminal or civil liability, although I have not assessed this from a legal standpoint. Yoo, though, apparently believed his advice to be correct, and thus did not believe that he was fomenting illegal conduct. I have not seen any objective evidence to the contrary. Absent that, he was doing what lawyers do. We may consider his advice to be legally faulty and morally bankrupt but I think it a far cry from a war crime except in a rhetorical sense. Maybe Yoo has done nothing to “deserve the privileges of scholarship” or of academic freedom but we do not parcel out liberties only to those deserving of them. The primary issue regarding his continued good standing is his conduct as a professor and I have seen nothing to indicate that he has not met minimal standards in that regard. Before one attacks his employment on the basis of war crimes, I would hope that he is first convicted (or at least indicted) in a court of law, not the court of public opinion.


duus 04.04.08 at 6:16 pm

Thanks for the analysis. that distinction is important.


Jed Harris 04.04.08 at 6:31 pm

First, I don’t see that academic freedom applies to secret memos, so that is somewhat distracting. Yoo certainly should have the right to write law review articles along the same lines without penalties aside from losing his academic credibility, and maybe the opportunity to teach constiutional law.

Even more distracting is the specific content: “war crimes” etc. Probably correct, but the stakes make it hard to think clearly.

Let’s transpose to a less exciting domain. Suppose Yoo was an accounting professor who was hired by some slimy operation. He writes a secret memo about how to carry out financial transactions that would normally be illegal, by exploiting all the gray areas and loopholes in the Generally Accepted Accounting Practices. He also provides advice how to excuse or defend these actions if they are publicly questioned.

Now Yoo resumes his academic career and is teaching students about those principles that he gave advice on how to evade.

I doubt that giving advice about how to legally get away with things that should be criminal is itself criminal (though I could be wrong).

But isn’t there a serious question of professional ethics? Shouldn’t the accounting professor at least be prevented from teaching about how to apply GAAP correctly? That isn’t a question of academic freedom, it is a question of academic malpractice.

My conclusion: Keep Yoo on the faculty and have him teach real estate law. I think the big risk is that he’ll leave Berkeley and teach at Pepperdine, where he’ll foster a whole generation of little Yoos. So ideally we could lock him into his position at Berkeley, but I don’t think that would be legal.

Also maybe he should be disbarred for ethics violations. But that is for the California Bar, not the University, to decide. I’d like to hear some expert thoughts on this.


Dave 04.04.08 at 6:34 pm

He should lose his job for being convicted of a war crime. But since that isn’t going to happen, because he hasn’t done anything actually illegal under US law, [and unless he’s very unlucky no other jurisdiction will touch him], and because he hasn’t, in fact, done anything for which anyone in the USA could lose tenure; then if he does lose tenure, it will be as a result of a partisan witch-hunt which will provide ammo for the Right for a long time.


Steve LaBonne 04.04.08 at 6:38 pm

They don’t need ammo. They function perfectly “well” all the time by just making shit up (just as Yoo did with the law.) Their real power comes from fear. When we stop being afraid of them, they stop being powerful.


MFA 04.04.08 at 6:42 pm

DeLong is now too DeLate. The General has already written the appropriate letter:




David in NY 04.04.08 at 7:13 pm

I think that no student should sign up for his courses. Period.


engels 04.04.08 at 7:31 pm

Well, obviously there is going to be a great demand for newly qualified torturers in the US over the next few years. I’d imagine Yoo’s hiring was just the first step in Berkeley’s project of creating a full-fledged Torture Studies Programme under Yoo’s directorship, and will presently be balanced out by further hires with more practical expertise. I would say that for anyone wishing to embark on graduate studies in the general area of degrading and inhuman treatment, they would be well worth considering, even though they don’t have Harvard’s prestige; for many foreign students of torture especially, from countries like Syria or Uzbekistan, who might be deterred by Harvard’s high fees, they would be an excellent choice…


Maurice Meilleur 04.04.08 at 7:36 pm

@9: Presumably UC justified its offer to Yoo based in part on his rec


Megan 04.04.08 at 7:40 pm

21 – If he teaches the first-year ConLaw class, students don’t have a choice. First year schedules are assigned to students, like high school. Come to think of it, it kinda sucks for Boalt Hall to force this moral dilemma on first years. The short-term cost of protest is really high for each student.


politicalfootball 04.04.08 at 7:49 pm

Yoo, though, apparently believed his advice to be correct, and thus did not believe that he was fomenting illegal conduct.

Were there a colorable case that Yoo is correct, I think this would apply. Yoo’s own argument on his behalf – that the president has such unbounded authority – is completely unpersuasive.

Has anyone, anywhere made a colorable case that Yoo had some purpose other than providing cover for illegal conduct?


Maurice Meilleur 04.04.08 at 7:54 pm

@15: We damned well do too parcel out academic privilege based on who deserves it–or, we should. If you’re a incompetent scholar, you shouldn’t expect to become a tenured faculty member in a research university; the fact that we can point to incompetent scholars in academia, like Yoo, is a sign that the system is flawed, not that that it is succeeding.

Yoo’s faculty bio at UC Berkeley lists him as ‘Professor’, and says he joined the faculty in 1993. Presumably he was on leave while he worked for the government. That does make things difficult for the school, since firing a tenured faculty member for cause is harrowing for everyone involved. Even if he is disbarred–as he should be–that wouldn’t automatically punch his ticket, since being admitted to the state bar isn’t necessarily a qualification for professorship in a law school.

But I like Jed’s idea: assign Yoo to teach contracts, or real estate, or torts. Anything but con law. And if he does go to prison–well, that certainly would present an awfully big obstacle to his meeting his teaching and service obligations, wouldn’t it?


Mr Toad 04.04.08 at 8:04 pm

Just of itself, this does not seem to offend against the principles governing tenure at a university – if it is part of a pattern of incompetence or malfeasance, perhaps it might. But there are other avenues, the criminal law and the legal profession’s own standards of conduct, that might be explored. And he would be ill advised to go to any conferences in countries – such as most of Europe – where he might face an arrest warrant for complicity in torture.


harold 04.04.08 at 8:15 pm

Kantorowicz’s book on Frederick the Second was (and probably still is) a fabulous read. He was a real scholar and a good writer of significant accomplishment, regardless of his political orientation which, obnoxious as it is to us, was nevertheless within the mainstream for German academics of his era. He may even have had a point that scholars should not be subject to loyalty oaths or other religious tests.

Yoo, on the other hand, has done nothing of note and is completely out of the mainstream of legal thought. The disgrace lies upon the people who gave employment to this hack.


engels 04.04.08 at 8:22 pm

The short-term cost of protest is really high for each student.

I suppose choosing a different law school was out of the question…


Anderson 04.04.08 at 8:25 pm

Yoo, though, apparently believed his advice to be correct, and thus did not believe that he was fomenting illegal conduct. I have not seen any objective evidence to the contrary.

Well, you can define “objective evidence” to your own satisfaction, but it’s becoming increasingly clear that Yoo was told what Rumsfeld and Cheney wanted to do to prisoners, and then wrote a memo to fit. See e.g. Philippe Sands’ article in the new Vanity Fair (and presumably more in his book next month, Torture Team).

The man demonstrably lacks the moral character to teach law, which is supposed to be a profession with a sense of honor.

Myself, I would be happy if Dershowitz’s faculty came to the same decision with him — advocating torture is not much better than facilitating torture. Just think where Dershowitz would be if he’d criticized interracial dating.


engels 04.04.08 at 8:43 pm

Delong’s citation of Kantorowicz seems completely wrong-headed to me. Communism is a political ideology which may be interpreted in various ways, and the moral evaluation of its various forms and their proponents is a matter of continuuing debate among informed and reflective people. Torture is not: it is simply a barbaric criminal act, one of the worst evils of which humans are capable, and is recognised as such by all civilised people, of whatever political persuasion.


LC 04.04.08 at 8:43 pm

I agree with those who say that Boalt Hall should not fire Yoo for something he wrote in a legal memo while at the Justice Dept, no matter how preposterous and egregious the memo was.

As for Kantorowicz, he definitely was right to refuse to sign the loyalty oath. Btw, his book “The King’s Two Bodies” (1957) is still being read and cited by historians, political scientists, and others.


Elliott Green 04.04.08 at 8:48 pm

@26 is basically right – firing Yoo would cause far more problems than it would solve.

But I can see why DeLong is up in arms – Yoo brings disrepute to UC Berkeley just as Ward Churchill did at the U. of Colorado and Dershowitz does at Harvard, in that none of them should have been hired in the first place. Presumably Yoo did not radically change his opinion about the law upon being hired by the Bush administration, and so Berkeley should have done a better job in vetting him when he first applied for a job there.

Sadly this seems to be part of life at good universities – poor scholars are often hired because they make good press. Just take the ill-famed Satoshi Kanazawa over here at the LSE as an example.


Megan 04.04.08 at 8:55 pm

But I like Jed’s idea: assign Yoo to teach contracts, or real estate, or torts.

I don’t like that idea at all. Obviously he shouldn’t be teaching ConLaw, but those other classes aren’t trivial backwaters. The idea that there are some aspects of law that are so mundane that it is OK to leave them as an exile for the criminal hacks is pretty disrespectful to the idea of using law to guide human interactions.


Jonathan Dresner 04.04.08 at 8:55 pm

Actually, given Yoo’s manifest talents at tortured (sorry) argumentation, administrative buck-passing and self-promotion, I think he should be made an associate dean (or whatever the equivalent is at Boalt). It gets him out of the classroom, and puts his real talents to work.


Markup 04.04.08 at 9:09 pm

Perhaps the simple solution is for UCB to do an all star trade with Stanford; Yoo for say, Kornberg. Yoo can then join up with the Don and the Hoover crowd, who knows, Condi may be back soon too. Besides it would give Yoo a much better chance to go direct with his message to more of our future Clandestinette’s, providing even better cover for whomever is the Decider.

There are no grounds for dismissal w/o actions on his outside works.

In ’93 were not all state employees required to sign California’s loyalty oath?

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution…


Laleh 04.04.08 at 9:15 pm

A couple of points:

Yoo has argued for precisely this sort of thing as far back as the 1990s. A search of his academic articles finds all sorts of titles indicating how the US should ignore international law etc. etc. Not to defend him or anything, but he has had legal bases for his arguments.

Unlike Dershowitz who is just an opportunist apologist for any Israeli wrong-doing.

Dershowitz has claimed to have been in attendance at Shin Bet interrogations in Israel. Given that he almost certainly was not representing Palestinians (and anyway, their legal representatives couldn’t attend these interrogations anyway) and given the intense secrecy of these interrogations, his attendance means that he was invited in a semi-official capacity. And given that he was arguing for torture as far back as 1970 in Israeli legal journals -at a time when torture was on the docket at the Israeli Supreme Court, one can argue that he was also involved in abetting war crimes.


Laleh 04.04.08 at 9:16 pm

To clarify, I should say Yoo *claims* to have legal bases for his opinions (i.e. not opportunist pandering to the administration). And again, I do think Yoo *is* a war criminal. Just one whose opinion about justifiability of torture goes further back than 2002.


Righteous Bubba 04.04.08 at 9:20 pm


Maurice Meilleur 04.04.08 at 9:31 pm

@33: Megan, you’ll have to take my word for it, but by suggesting those areas of law, I didn’t mean to suggest they were unimportant. Their merit is that they wouldn’t invite Yoo to wax authoritarian over the Constitutional role of the president. But your point is well taken; it’s not a good idea to assign someone a course they’re not qualified to teach to force them out of a job or mitigate their lack of qualifications.

So, maybe a make-work deanship is the right answer. A six-figure salary to keep him out of the classroom is a small price for a school to pay after having erred so badly in hiring him in the first place. And maybe AEI or Heritage can beam him up if he gets bored.


LarryM 04.04.08 at 9:33 pm

I favor a war crimes trial for Yoo followed by hanging by the neck until dead. Sadly, that isn’t going to happen. I’m not sure, though, that firing from an academic position is a good alternative. I would suggest shunning by colleagues and students, though, to try to make his life a living hell.


DaveW 04.04.08 at 9:33 pm

Maybe what’s important is not the outcome but the deliberation. Firing Yoo will make no great point — it will be seen by the few who notice as simply another university sacrificing principle for the safety of popular opinion.

Could the Law School not instead, for example, conduct a mock trial/investigation of whether Yoo is guilty of war crimes? Not as a means to deciding what to do with him necessarily, but simply to determine whether he is guilty as charged. Make the proceedings public and allow a full prosecution and defense. AFTER that, perhaps would be the time to discuss his future at the U.

Seems to me this would accomplish far more than a summary firing, demotion, etc. It would affirm the view that morally reprehensible acts are not mitigated by their being committed as part of one’s employment. A “conviction” could have a groundshaking effect on the national awareness that high office does not absolve anyone of high crime.


Maurice Meilleur 04.04.08 at 9:38 pm

Hell, maybe Berkeley could encourage AEI or Heritage or the Federalist Society to endow a deanship for Yoo (since endowed chairs with agendas are all the rage now).

He could be the ‘Charles Colson Dean of Whatever You Want, Boss’.


Maurice Meilleur 04.04.08 at 9:47 pm

Davew, that is a stellar idea.

Since Bush will probably grant pardons all around on his way out of the rubble he leaves, that might be a good idea for everyone who made these policies possible. Maybe we can’t put them all in prison, but a judicious but forceful public discussion of what happened–naming names and assigning responsibility–might make it harder for them to claim any sort of credible influence on government. (Or academia.)


Megan 04.04.08 at 9:58 pm

@39 – I completely take your word for it!

It would also be good if he weren’t teaching any of the required classes. Students should be able to opt-out of his class with less penalty.


Barry 04.04.08 at 10:09 pm

elliot: “Yoo brings disrepute to UC Berkeley just as Ward Churchill did at the U. of Colorado and Dershowitz does at Harvard, in that none of them should have been hired in the first place.”

No, Dershowitz and Yoo serve power; universities, like most other institutions don’t find that to be disreputable.


Eric Finley 04.04.08 at 10:27 pm

The other possibility would be for Berkely not to shift Yoo to another course (otherwise the best idea here), but simply and without fanfare ensuring that other sections of any course he teaches are being offered such that students DO have discretion. It’s well within their power to simply provide the courses appropriately.

Hell, schedule him simultaneous with a star lecturer or two.

The interesting advantage of this over a deanship is that it allows room for outraged students to boycott without forcing on them the usual high expenses of such an action.


Markup 04.04.08 at 10:31 pm

Quaker teacher rehired after being fired for refusing to sign California’s loyalty oath.

Yes that was just recent, and while interesting not germane as to if Yoo signed his as supposedly required. Using his looseness of argument [aka 1/2 witted logic] he (and the gang) could be tried for Treason. Arguably, their actions have created a(nother) situation where them evildoers must have gotten some comfort in our ‘discourse’ over the topic as well as our dimunition in the eyes of many others in the community of Nations, which could be viewed as having tendency to weaken the power of the United States to attack or resist its enemies, ergo… There is no doubt about it’s (the “memo”) intent being subversive. It would be nice for The Supremes to get involved on this based on the laws we actually have, but I suppose we’d end up with their rendition of, ” I’m Livin’ In Shame “


bab 04.04.08 at 10:45 pm

I don’t understand. Why now? Weren’t the thrust of his analysis in the latest-revealed memo and his position generally on the virtually unlimited powers of the executive well known? Why is such retributive action an issue now with respect to but one of the administration’s legal facilitators?

Where has the collective outrage been for the last 7 years? How was this administration re-elected to power? Is there a significant portion of Americans who believe torturing is not only in our national interest, but also morally defensible? If so, how are we going to come to terms with that?

So are we supposed to believe that a country that turned (turns) a blind eye to this behavior for so long is now ready to distribute some sort of consequence to the perpetrators after the fact?

Too little, way too late. We should all be ashamed.


Alex 04.04.08 at 11:19 pm

May I suggest the student body just kick his arse, throw his books out of the window, and torch his office already?


rea 04.04.08 at 11:25 pm

Yoo is guilty of torture and mass murder. The man who shuffles paper in an office in aid of torture and mass murder is just as guilty as the man elbow-deep in blood. Having him be member of the faculty of the University of California ought not to be any more tolerable than having Charles Manson in a similar position.

As a practical matter, we’re never going to see Yoo where he belongs, on trial on capital charges. At the least, though, decent people ought to shun him, and “decent people” ought to include the University of California Senate.

The likes of Churchill or Dershowitz fall in a different catagory–they’ve talked a lot of despicable nonsense, but they haven’t actually been involved in torture or killing anyone.

As for his legal arguments . . . well, I’m a lawyer with a reasonabe working knowledge of constitutional principles, although nobody is propsoing to make me a professor at a prestigious law school any time soon. To me, his arguments seem like such blatant transparant nonsense that it’s hard to believe they are being advanced in good faith.

Congress, acting under its express power to reglate the conduct of the armed forces, passes a law that says memebers of the armed forces shall not torture. How could any sensible person honestly think that members of the armed forces can still torture if the president wants them to?


BillCinSD 04.05.08 at 12:16 am

At my school two approaches have been taken to rid the faculty of someone like Yoo — once the students hung a faculty member in effigy. once the professor’s department Gulag’d him. Moved his office to the rickietiest floor of the oldest out of the way building available, assigned no classes or advisees to the professor, provided no discretionary funds to the professor, until he left out of boredom


Richard Cownie 04.05.08 at 1:22 am

Don’t all these Republican hacks inflate their resumes ? I suggest the University digs out every piece of paper associated with the hiring of Yoo and goes through it with a fine tooth comb looking for lies. You’ll probably find something to justify
revoking his appointment.

Yes, it’s a bit like prosecuting Al Capone for tax evasion. But it would also be a nice irony to apply the same kind of unreasonable legalistic nitpicking to Yoo that he himself has used to shred the Constitution.


Righteous Bubba 04.05.08 at 1:38 am

Squirt guns used on Yoo as “waterboarding lite”.


engels 04.05.08 at 2:16 am

Assuming the Berkeley’s ruling powers are just looking for a way to get rid of him (to be honest, I think this is very unlikely) perhaps they could send him to a conference or other engagement in a country where he was likely to be arrested and put on trial for war crimes?


Thomas 04.05.08 at 3:01 am

Transparently bad arguments made to serve no principle but only an end. Arguments in service of political power and nothing more. Arguments meant to look like legal arguments but corrosive of the rule of law. Arguments that are nothing more than sublimated violence.

Yoo’s sins? Or those of Henry and his friends here?


John Protevi 04.05.08 at 3:15 am

Yoo’s sins? Or those of Henry and his friends here?

Really nice abstraction there, “thomas.” Because blog comments and memos to the POTUS really are morally equivalent.

Though this might be a candidate for the Concern Troll Post of the Year award: “thomas” could simply be concerned, really, really concerned, that libs not replicate the methods of the neocons, because then how different would they be from those they claim to despise?


geo 04.05.08 at 3:26 am

Thomas (#56): The “principle” in question is that grave misconduct of this sort (ie, the President’s lawyer advising him to ignore Constitutional restraints) disqualifies the perpetrator from a position of academic trust. And one is supposed to sublimate violent impulses into thought and argument, rather than act on them.

Please think before you post.


rea 04.05.08 at 3:37 am

“thomas” could simply be concerned, really, really concerned, that libs not replicate the methods of the neocons, because then how different would they be from those they claim to despise?

Right, likely we’ll just torture people until they agree to denounce torture.


engels 04.05.08 at 3:38 am

Wow, Thomas, that was deep. A bit like Dr Evil towards the end of Austin Powers

Well done, Mr. Powers. We’re not so different, you and I. It’s true, you’re British, and I’m Belgian. You have a full head of hair, mine is slightly receding. You’re thin, I’m about forty pounds overweight. OK, we are different, I’m not making a very good point…


Thomas 04.05.08 at 4:44 am

John, yes, memos and blog comments are in some sense morally equivalent. Both can serve as occasions for particular faults. But, no, I’m not concerned; I’m mocking you and your friends.

geo, I find your comment puzzling. I see your conclusions–it’s obvious you’ve started there. But where is the argument? You could start with an explanation of what a “position of academic trust” is, and whether that is different from other academic positions. You might explain what kind of misconduct is “grave” in the relevant disqualifying sense, and why. You might offer an explanation of why Yoo’s conduct in this case is “grave misconduct”–surely it can’t simply be that when a lawyer gives someone (or gives the president, if that’s a relevant difference in your account) advice you find unsatisfactory (or however you’d characterize the advice) that it’s a case of grave misconduct. On second thought, please just don’t post.

rea, no, I think the debate is between merely firing Yoo and kicking his arse and torching his office.


Cassandra 04.05.08 at 4:46 am

As a Cal alumni, I want Yoo fired–not for being pro-torture (tho that is morally reprehensible) but for being ignorant of US. law. Clue–the bill of rights is not an option. Would Cal accept a history professor who is a Holocaust denier? Would they hire a geography professor who is a member of the flat-earth society? Allowing Yoo to teach law is the equivalent. He has to go. We don’t need a generation of law students who think torture is legal and the president is above the law. Yoo is entitled to his opinions and can voice them loudly. As institution of higher learning, however, Cal has the obligation to seek competent people.


Righteous Bubba 04.05.08 at 5:01 am

John, yes, memos and blog comments are in some sense morally equivalent.

I find the same equivalence between executioners and plush Hello Kitty dolls.


a 04.05.08 at 5:16 am

I think part of the argument is running on a false premise, namely that Dershowitz should not be fired. This leads to reasoning to explain why Yoo is different, some of which in my eyes is specious. In fact Dershowitz should be fired, for base moral turpitude. Yoo as well. And I’m with Steve and others, to Hell with conservatives raising a stink. They lost their moral compass long ago.


Dave 04.05.08 at 8:47 am

Is it possible to make some meaningful distinction between ‘should happen’ and ‘is ever actually going to happen in this universe rather than in a different, more moral/pure/politically-correct one’? And perhaps to focus on the latter? If not, after all, this is mere bloviating.

[And yes, I know it’s a blog]


Ben Alpers 04.05.08 at 9:24 am

bab @49:

You’re absolutely correct that the return of the acceptability of torture to American political culture was not brought about by a few bad apples like Yoo.

Remember that one quarter of the Senate Democratic Caucus in the fall of 2006 voted for the Military Commissions Act, which attempted to retroactively give the cover of law to the Bush/Cheney administration’s use of torture. They are all war criminals too, in my book.

But even supposedly progressive Democrats had no trouble supporting the torture Democrats in the 2006 elections. Six Democratic candidates who voted for the MCA in either the House or the Senate won election or reelection to the Senate that fall, including Tom Carper, Ben Nelson, Bill Nelson, Bob Menendez, Debbie Stabenow, and Sherrod Brown.

This year, New Jersey Democratic voters will have the opportunity to choose between two war criminals as their next Senator: the incumbent Frank Lautenberg and his primary challenger, Congressman Rob Andrews.

As bab says, where’s the outrage?


bad Jim 04.05.08 at 9:45 am

This isn’t the Berkeley I remember from my college days. I saw a car from the Atomic Energy Commission haplessly parked on Bancroft on the day of a big demonstration overturned and set on fire, people fleeing from a helicopter spewing tear gas, cops from various jurisdictions beating students at random, and so forth. It’s scarcely credible that Yoo’s colleagues and students would treat him with respect, but I haven’t heard otherwise.

It’s been asserted elsewhere that Yoo’s misconduct wouldn’t necessarily lead to his disbarment, and it isn’t clear that commission of war crimes is grounds for revocation of tenure. Nevertheless, there is every reason for Berkeley’s Academic Senate to discuss the case and, one would hope, advocate his expulsion from their midst. I would also hope that Boalt’s faculty ought to be able to agree that he has no business teaching constitutional law.


abb1 04.05.08 at 11:13 am

What Laleh said.
Yoo accepts the unitary executive approach and then follows the logic of it wherever it takes him. That – misguided as it may be – is not illogical. Dershowitz, OTOH, is simply a tribal savage.


Matt Weiner 04.05.08 at 1:16 pm

I looked at the Berkeley faculty code of conduct and I don’t see any grounds on which they can fire Yoo. There’s a clause about “intellectual honesty” which refers to plagiarism and the like. As far as the community goes, it says that the faculty member must be convicted of a crime. So Yoo is probably off the hook there.

There is a clause about “forcible detention” of another University community member so if anyone involved in Berkeley was detained on Yoo’s advice, they might be able to nail him on that. There’s also a clause about “serious violation of University policies governing the professional conduct of faculty”; does UC Berkeley have a “no war crimes” policy? Probably not explicitly.

I think that the appropriate forum for action may be that Yoo should be disbarred for violating legal ethics; I imagine he could then be fired. (The appropriate forum is really that he should be tried for war crimes, and he could be fired upon conviction, but I doubt that will happen.) And of course he should be shunned in every way possible, and probably censured, and kept away from students as much as possible.


engels 04.05.08 at 2:31 pm

I’m surprised how many people here dismiss the possibility of Yoo facing trial out of hand. If he is unwilling to give up travel outside of the US then the possibility of legal proceedings being initiated against him at some point in the future under the Convention Against Torture and the Geneva Conventions, for ‘complicity’ with torture, is a very real one. The US Military Commissions Act means that he will not face prosecution in the US, but for that very reason foreign courts may decide to intervene, on the grounds that he will not face justice within the US.

Phillipe Sands’ article referred to be Anderson above should certainly be read by anyone who does not believe that this is a very real possibility.

Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”


nick s 04.05.08 at 5:38 pm

If students carry out a silent sit-down protest outside his office every day until he can’t take it anymore and leaves Berkeley, that’s fine with me.

If students carry squirt guns into class, or outside his office, and spray him in the face repeatedly, that’s fine with me.

It’s fucking Berkeley. The student body has a reputation to maintain, and driving Yoo out of town with squirt guns is an entirely acceptable outcome.

If the university authorities were to declare that students using squirt guns on Yoo would be subject to disciplinary procedures on the same basis Yoo stipulated for interrogators to be subject to prosecution, I think we’d have something to work with.


geo 04.05.08 at 6:49 pm

Thomas (#61): No, you don’t see my conclusion; I didn’t state one. I merely pointed out the argument underlying the thread, which you professed to find lacking: viz, a faculty member who, in the judgment of his peers, has behaved in a professional capacity with grave dereliction (eg, by supplying a high executive officer of the government with a transparently false legal justification for a serious violation of constitutionally protected rights) may properly be deemed unworthy of holding a senior academic appointment, with, as they say, “all the rights and responsibilities appertaining thereunto.”

That’s an argument. Not a conclusion. The conclusion would be the judgment of his peers that he has indeed behaved thus and therefore has forfeited his right to his academic office.


JRosen 04.05.08 at 7:20 pm

I am not a lawyer but it seems to me that there is this difference between the situation of Dershowitz and Yoo:

Dershowitz, as law professors do all the time, spins out a hypothetical and thereby initiates discussion, and as I remember Alan (who I would occasionally drink with in the Harvest in Harvard Square) he was by nature an intellectual provocateur. (I disagree with his argument BTW.The scenario is extreme and highly improbable, and if it were to come about the interrogator would certainly not take the time to consult the prevailing legal theory. Justification or not would have to come later.)

Yoo, on the other hand, was (despite his lame discalimer) writing for a law review article or offering a seminar topic, but working at the highest levels of government where law is not only made, but implemented. And if he is as bright as he is reputed to be, he cannot have been unaware of the realities behind his euphemisms (so to speak) nor that those for whom he wrote were not in a position to make his hypothicals into realities. This fact imposed on him a certain moral responsibility, which he clearly abdicated; therefore I think grounds for his removal on the matter of “moral turpitude” fits the case best.

It is not a matter of academic freedom (as is is with Dershowitz). Yoo’s words enabled sociopathy at the highest levels of the most powerful government on earth (with the paradoxical but just result that that power has as a consequence been notable diminished). Does this make him an accomplice or a co-conspirator?

Everyone should look at “Judgment at Nuremburg” again.


JRosen 04.05.08 at 7:22 pm

Correction: In the 2nd sentence, third paragraph, strike the word “not”.


engels 04.05.08 at 7:39 pm

Everyone should look at “Judgment at Nuremburg” again.



Thomas 04.05.08 at 7:59 pm

geo, where to begin? The proffered “principle” is obviously ad hoc; it’s obvious you’ve started with the conclusion and worked backward. But leave that and consider your latest. You aren’t one of Yoo’s peers. Henry isn’t. DeLong isn’t. You aren’t even familiar enough with the law to accurately state the issue (it doesn’t have anything to do with “serious violation[s] of constitutionally protected rights”). The bit about “dereliction” is just another way of assuming the conclusion. You should have taken your own advice.


John Emerson 04.05.08 at 8:21 pm

A dilute ammonia solution in squirt guns makes them more effective.


sara 04.05.08 at 8:50 pm

Keep Yoo on the faculty and have him teach real estate law.

Given the ongoing national scandal over subprime mortgages, this isn’t a great idea. I expect that most of the loan sharking will appear to be perfectly legal.

Have him teach some form of law which affects nobody — the punishment of an obscure backwater. Or have him teach Roman or canon law; his views are suited to the Inquisition.


geo 04.05.08 at 9:09 pm

Thomas (#76): You might begin by distinguishing a premise from a conclusion and a principle from a consequence. You claimed that no principled argument underlay people’s suggestion that Yoo be fired. I offered a principled argument — which I may or may not agree with, or even think is relevant in this case — simply to clear up your confusion. Vain hope.

Of course Henry, DeLong, and I are not law faculty at Berkeley. We’re aware of that. We’re merely suggesting that the law school faculty and administration, who have jurisdiction, look into the matter.

A prisoner’s right to humane treatment is constitutionally protected; Yoo was reportedly proposing a factitious legal strategy for disregarding this important constitutional protection (rather than upholding and defending it, as his employer was explicitly sworn to do). This seems to me a reasonably accurate statement of the issue. If you don’t think so, would you care to correct it?


Markup 04.05.08 at 10:06 pm

US Constitution; Article VI, Clause 2

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Aside from protections afforded directly in the Constitution which are shrouded by our extra-territorial wonderment called Gitmo, we have signed a treaty or two which are more direct in regards to non citizens. The extraordinary lengths gone to in attempt to tap dance around the Laws of our land have done naught to help defend or protect, or spread Democracy.

If you go see Shine A Light listen carefully for, I can’t gitmo, satisfaction, but I tried…


Barry 04.06.08 at 1:12 am

jrosen – in short, Dershowitz has *said* thing which, if he helped to implement them, would put him in serious deserving [deservation?] of a short, um, ‘suspended’ sentence on a gallows[1]. Yoo has *done* things which do so.

That’s the argument which many people have been making, (‘done’ vs merely advocated); by now those who don’t seem to grasp that distinction have marked themselves as having deficiencies in some intellectual department.

[1] Given Dershowitz’s connections to the state of Israel, support for it’s policies, willingness to abandon previously advocated principle for it, and endorsement of war crimes, I personally believe that he has *done* things worthy of the death penalty. However, there has been nothing showing – so until then…


Ralph 04.06.08 at 3:13 am

I’m a humble street lawyer in Tennessee. I claim no scholarly credentials beyond my JD from the University of Texas, long, long ago.

Soon after the Bush-Cheney Crime Family leaves office in January, 2009 (we hope), there will no doubt be requests for the extradition to various foreign jurisdictions of various members of the Bush-Cheney gang — for war crimes prosecutions.

I doubt that the next Administration will have the courage to honor those requests for extradition. Political firestorms and all that.

But some constitution-minded Americans could get their hands on Yoo — and some other prominent Bushies — and “extraordinarily rendition” them to The Hague for trial — or better yet, to Baghdad.

If Shin Bet could kidnap Adolf Eichmann and bring him to justice — and this old Southern Baptist approved wholeheartedly of that action — then groups of patriotic, constitutionalist Americans should take the initiative to round up the known suspects and forcibly and surreptitiously deliver them to appropriate international authorities, with all the decorum and respect to their rights that they exhibited toward the victims of their policies. Turnabout is fair play.

As for Boalt Hall, I cannot fathom their poor judgment in allowing Yoo to return, or of the callow law students who do not spend their every waking minute making Yoo’s job and life miserable.

There are ways to deal with rogue professors, if only pour encourager les autres.

Remember Walt Rostow? Harvard wouldn’t take LBJ’s henchman back, so he came to the University of Texas and stunk up the place for 30 years. He was loathed in Austin, and we made sure he knew it.

We need to deal harshly with people like Yoo, the kind of criminal who abuses authority at the highest levels, and with the gravest of consequences.

Call it rough justice. It’s better than no justice at all.


Beryl 04.06.08 at 4:19 am

…”tribal savage” ?? (#68) Which “tribe”?


Dave 04.06.08 at 11:59 am

All this talk of hanging people is very liberal, I must say… And since it is just misdirected venting, likely does little more than raise the poster’s own blood-pressure. It seems to me to be a bad thing, all round.


a different chris 04.06.08 at 12:19 pm

Hmm, mostly this confirms my opinion that the whole concept of tenure is a worrisome thing.

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

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

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

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

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


Nell 04.06.08 at 5:07 pm

And maybe AEI or Heritage can beam him up if he gets bored.

AEI has long since beamed him up.


Other Ezra 04.06.08 at 10:14 pm

Whether to fire Yoo is an interesting quandary and I’m not sure what the right answer is.

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

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


engels 04.07.08 at 1:51 am

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. …

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

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


JimJohnson 04.07.08 at 3:58 am

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

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


JimJohnson 04.07.08 at 4:16 am

Some thoughts:

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

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

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

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

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

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

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


ajay 04.07.08 at 10:20 am

In ‘93 were not all state employees required to sign California’s loyalty oath? I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution…

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


not even an MBA 04.07.08 at 1:48 pm

I imagine that a single student could get rid of Yoo by:
1. submitting the shoddiest work possible during the course, essentially trying to fail and then
2. contesting his failing grade in court – and using the the torture memo as a basis to show that the crappiest stuff he can come up with is still up to Berkeley’s standards.
That would make for some interesting newscasts.


Markup 04.07.08 at 2:23 pm

Isn’t that a bit tricky for non-US citizens?

What isn’t now a days? ;)

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


ajay 04.07.08 at 4:17 pm

93: Well, in the armed services defending the US constitution is sort of your actual job, which it isn’t for academics.

Re legal arguments:

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

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


Markup 04.07.08 at 5:50 pm

Re legal arguments:

1. Work out some reason why the First Amendment doesn’t apply to the University.

I guess you don’t see a problem there…

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

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


LC 04.07.08 at 7:32 pm

#94: “UCB is under the state govt, and the 1st Amendment only limits the federal govt”

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


not even an MBA 04.08.08 at 1:21 pm

Perhaps a four day old post is the wrong place to be making any comments, but I think that Scott Horton’s No Comment piece here: http://harpers.org/archive/2008/04/hbc-90002819
is relevant to this discussion.

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