Sunday, April 13, 2008

Academic Freedom for Yoo and Me

Responding to calls for UC Berkeley to fire John Yoo, Boalt Dean Chris Edley (who taught me administrative law 20 years ago) has a nice defense of academic freedom here. Edley repeats the standard (and well-founded) criticisms of Yoo's performance as a lawyer for the Office of Legal Counsel but concludes that under the relevant university statutes, this isn't a close case. Yoo has tenure and, Edley suggests, tenure's protection for someone like Yoo is not merely an example of a rule that is justified in the aggregate leading to bad results in a particular case; rather, protecting someone like Yoo, Edley argues, is the very point of tenure.

I should say for the record that I agree with Edley's bottom line. However, I actually am not a big believer in tenure as an institution peculiar to universities: Yes, having tenure makes faculty free to speak their minds, but habits of mind are formed when junior faculty are trying to get tenure, and thus encouraged to be inoffensive in their work. And to the extent that tenure does protect free speech, I see no reason why it, or something like it, should not be available in other lines of work. So starting from scratch, I could favor tenure as a form of protection against all but for-cause dismissal available to university faculty and other types of workers. Even then, it's not obvious that the free speech benefits outweigh the shirking costs.

But I do believe in academic freedom and currently the way we protect academic freedom is through tenure. Unfortunately, the most vociferous calls for denials or stripping of tenure in recent years have, as Dean Edley suggests, come pretty close to the core. There are, in addition to Yoo's case, the cases of Nadia Abu El-Haj (discussed in last week's New Yorker, available only as an abstract here), and the food fight between Alan Dershowitz and Norman Finkelstein about the latter's tenure (just google it to find a few thousand accounts).

What these cases show, I think, is that outside efforts to deny or strip tenure usually backfire. It's much easier to deny tenure to a marginal candidate if the decision can't be portrayed as bowing to outside pressure than if it can be so portrayed. (Note that Dershowitz says he did not independently seek to get involved in the Finkelstein case but was asked for his opinion. Perhaps so, but once he publicly campaigned against Finkelstein, he set the backlash dynamic in motion.) Even if there are legitimate academic grounds to deny tenure, public campaigns invariably arise because of the political, not scholarly, dimensions of the work.

And that will almost certainly be the case with John Yoo. Edley has predictably rallied to Yoo's cause, as he should---for now. Edley concludes thus:
I will . . . state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.
Activists have sought a war crimes prosecution against Yoo in Germany, and he has been sued in federal district court by Jose Padilla. If one of these or some other case actually finds Yoo culpable, will Dean Edley change his view? Should he?

Posted by Mike Dorf


Jason Wojciechowski said...

I don't like the part of your quote from Edley where he asks if there was misconduct "material to Professor Yoo's academic position". Shouldn't Edley's inquiry stop at asking whether there was misconduct, period? Could we imagine any misconduct on Yoo's part that would not be material to his academic position? For instance, if he intentionally misconstrued the law, doesn't that automatically speak to his qualifications to teach the law, without further inquiry?

Patrick S. O'Donnell said...

Short of war crimes prosecution is the question of Yoo's professional legal competency acting for the Office of Legal Counsel and advising the Attorney General as revealed in the infamous torture memo. This question is, I think, well addressed by Brad Wendel at the Legal Ethics Forum (with yours truly offering support):

Setting aside its call for Boalt Hall to fire Yoo and ignoring for the moment its belief that Yoo's "complicity," in Marjorie Cohn's words, "in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," the underlying argument (or a premise in its argumet) of the National Lawyers Guild appears to be the same insofar as it's making the claim that Yoo was guilty of professional legal incompetence:

'According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

The federal maiming statute, for example, makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result; Yoo's definition contravenes the definition in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution's Supremacy Clause. Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances, even in wartime. This memo and another Yoo wrote with Jay Bybee in August 2002 provided the basis for the Administration's torture of prisoners.'

Patrick S. O'Donnell said...

I might have said that the NLG should consult with Francisco Forrest Martin, who reminds us in a comment over at Balkinization that 'No such crime [i.e., complicity in committing a war crime] exists in international law (see Hamdan), and the Military Commissions Act of 2006--which does include conspiracy--does not apply to U.S. citizens. The appropriate charge would be "joint criminal enterprise."' The latter is extremely difficult to prove in international criminal law, as Larry May makes plain in his chapter, "Prosecuting Military Leaders for War Crimes," in his War Crimes and Just War (2007): 256-278. May clarifies the nature of a joint criminal enterprise:

'One way to understand a joint criminal enterprises is as large-scale instances of precommitment. People in joint enterprises commit themselves to the goals of the enterprise by making the collective goals of the enterprise their own personal goals. This means that they precommit to do what it takes to achieve the goals of the group enterprise.'

For a fuller legal discussion in the context of international criminal law, please see 15.3 "Joint Criminal Enterprise," in Robert Cryer, et al., An Introduction to International Criminal Law and Procedure (2007): 304-309.

Quim said...

It sounds terrible (especially to me), but I'm on Yoo's side on this one. Until there's a firm criminal ruling against Yoo, I don't think a disciplinary measure is warranted, not from his employer nor from the relevant bar association. The general rule is clear here, and no matter how heinous his acts where, they don't deserve an exception under the laws in force.

However, pending such criminal conviction (which, let's face it, is extremely unlikely to occur within the US, for strictly political reasons), the evidence indicating that he actively participated in war crimes is so abundant and so detailed that I believe that fair-minded jurists of any political or doctrinal leaning could (should, actually, as a matter of basic moral hygiene) unite in a boycott against this guy and his fellow enablers (Bybee, Ashcroft, Gonzales, Addington, Haynes, et al.). What these guys facilitated isn't a particular vision of the law. It's the anti-law. For that, they deserve the loathing of everyone in the profession that works every day to uphold a set of basic rules that allow us to live in a democratic (alas imperfect) society.

Unknown said...

I guess the point of the tenure review process is to ensure that once tenure has been granted, a faculty member won't relax the quality of their research and argumentation. Is there any indication that despite the review process, tenured faculty tend to let things slide? I like the idea of tenure as a protection against backlash to offensive or unpopular positions and arguments, but it seems like the backlash against Yoo isn't just that his ideas are immoral, but that they're shoddily reasoned and supported. Is there ever an argument to be made that someone with tenure is so abusing their station through intellectual laziness that it should be waived?

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