Academic Freedom: Some Propositions

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

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

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

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

That should be “I think your argument…”

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

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

Hey this is great!

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

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

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

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

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

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

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

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

@bruce baugh:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Actually, I should have said it seems absurd…

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

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

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

Briar patch anyone?

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

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

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

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

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

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

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

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

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

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

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

(and is preview ever coming back?)

academics protect their own

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

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

Oops, missed this bit:

political activities outside the workplace

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Michael Bérubé ·

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

katherine-

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

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

In short, the procedural issue trumps the moral one.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Engels, Henry and Sebastian

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

katherine writes @119:

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

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

michael berube @107 writes:

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

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

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

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

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

You are remarkably optimistic about the state of the world.

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

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

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

PS: Sorry for the various typos, its late.

And sorry too for being tardy for the party.

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

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

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

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

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

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

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

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

Bruce,

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

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

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

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

seth (@147),

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

Bruce-

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

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

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

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

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

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

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

=======

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

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

When will it be reasonable to dismiss for misconduct?

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

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

What if an employee is charged with a criminal offence?

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

Out of office misconduct

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

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

Будете ли вы, действительно? Я хотел этого

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

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

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

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

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

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

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

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

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

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

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

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

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

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

l.p.,

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

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

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

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

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

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

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

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

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

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

seems to me patently absurd.

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

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

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

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

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

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

Engels

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

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

Henry-

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

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

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

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

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

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

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

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

Henry,

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

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

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

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