Friday, April 11, 2008

Academic Freedom, Horrible, Horrible, Freedom

Predictably, there's some discussion going around in the moonbeam circles about firing Prof. Yoo. Prof. Leiter's reaction is exactly where mine is. Prof. Lederman is a bit more reserved, but offers a great perspective as a former OLC lawyer and current academic (and prolific and insightful blogger). You can also read Dean Edley's memo on the matter at Prof. Lederman's post.

I've said it before, and I'll say it again: I love being a liberal, but I hate liberals. If you're for freedom and justice, then that includes academic freedom where the exchange of ideas, even ones you disagree with, is a virtue. That Dean Edley had to articulate the basis for protecting tenure is a tragedy in and of itself. If you don't think that the United States should be torturing anyone, vote, donate, do something in November. If you think we should be torturing, stay home. But attacking one of the most sacred rights makes you look foolish and makes the job of those who agree with your views all that harder.



Blogger tj said...

From the Chron:

"Yes, it does matter that Y00 was an adviser, but President Bush and his national security appointees were the deciders," Edl*y wrote.

"Assuming one believes as I do that Professor Y00 offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry," he said.

The full text of DE's response is located here.

4/11/2008 12:03 PM  
Blogger Patrick said...

Q: What is Chancellor Birgeneau's position?

4/11/2008 12:08 PM  
Anonymous Anonymous said...

A commission for progress on diversity, equity, and inclusion campus-wide should be conducted to determine the core values and strategic nature of Professor Yoo's position here at Berkeley- we must ascertain through this strategic planning phase a specific set of goals, objectives and resources.

4/11/2008 12:53 PM  
Anonymous Anonymous said...

Another question: Why the sudden statement on this? Did some recent something provoke more attention toward this issue?

4/11/2008 1:34 PM  
Blogger Armen said...

Leiter's post has the answer. See link above.

4/11/2008 1:35 PM  
Anonymous Anonymous said...

I'm not a big fan of Yoo, but I completely agree w/ Edley on why it would be foolish to consider firing him. Edley has done a great job conveying a very difficult message that was both honest and convincing. This is coming from one of those "liberals" who despises Yoo's policies and up until recently, would have happily seen him go. I do think that gut emotional (and ethical) responses have their place in the law. However, I concede that such a response caused me to lose sight of the overarching implications that firing Yoo would have on Boalt and our commitment to freedom of expression--however immoral that expression may be. There is a slippery slope argument inherent in this reasoning, but in this situation, it fits.

4/11/2008 2:01 PM  
Anonymous Anonymous said...

I am for the firing of John Y00 by whatever means, whether or not it requires a contract-breaching executive decision by Dean E. and a subsequent lawsuit. At this point, we will be paying the price for Professor Y00's tenure whether or not he is teaching. It would be dishonorable and unethical of the administration and the students to stand for his conduct for that reason.

Dean E. mischaracterizes the issue at hand when he argues that a lawyer cannot be held responsible for the actions of his client when those actions were based upon only questionable, but not strictly unlawful, legal interpretation. The executive of the United States of America is not an ordinary client. Those who disagree might point to the ostensible seperation of powers set forth by our Constitution, which states that the Executive, like every other citizen, is required to follow the laws established by the Legislature. This idealistic perspective is simply untenable: the executive is in reality a quasi-law making body and can quash power-balancing inquiries into its own actions in the great majority of cases. Some pigs, quoth Orwell, are indeed more equal than others.

When advising clients who MAKE the law without appropriate checks and balances, a higher professional standard of care should be necessary. Y00 clearly breached this standard of care.

Thus, given that the modern executive branch is all too often above the law, should the relationship between council and the executive body be understood as "normal"? Absolutely not. Unfortunately, The Law does not make this distinction clear (for a rational reason: marketably unethical politics). Thus, I question whether or not The Law is an appropriate benchmark for such questions of executive council ethics. It is not, but our hearts and minds are.

Most agree: Y00's advice was unethical to say the least and, I assume, most would want to prevent such advice from being given to another executive in the future. I ask: what is the alternative to preventing these ideas from negatively effecting our world again? The marketplace?

Sure, John Y00 will likely not find a position in the government again. Is that enough? To decide, perhaps J. Hand would ask if the foreseeable (small, but existent) risk that his teachings will influence future students to make similarly unethical choices is outweighed by the benefits to our institution that come attendant with the ability to advocate such ideas without censure. I would say no. I honestly don't feel that the undoubtedly chilling effect that censure would have is negative if it chills academics and professionals from pursuing such basely unethical ideas as state-sponsored torture. Will it "chill" any other ideas? Hard to say. Dean E. seems to think that it would. Are the "benefits" of such abnormally dangerous ideas worth the risk of some, mostly ethics based, self-censure? No.

4/11/2008 2:57 PM  
Anonymous Anonymous said...

I agree with Armen's post, and seeing those words I just typed blows my mind. However, while Yoo's tenure does cause Boalt to have certain obligations to him, it does not mean that the administration is tied up, blindfolded and forced to undergo a simulated drowning. To wit, the school is not required to allow him to continue teaching Constitutional Law courses that purport to include instruction on the separation of powers. It's pretty unfunny to pretend that he's an expert on that subject.

--Maxwell Demon

4/11/2008 3:36 PM  
Anonymous Anonymous said...


Why don't you make that comment after taking his con law class. That is, try making an argument with foundation. I am sure about 99% of students of any of John Yoo's class will say that 1) he is a balanced Professors; and 2) UNLIKE many tenured professors at UC Berkeley, he spends time with students, reviews their writing, serves as a mentor, and is a great lecturer.

4/11/2008 4:05 PM  
Anonymous Anonymous said...

As Dilan said over at Balkinization:

"One observation I would make is that Dean Edley is relying on a technicality, i.e., that Yoo was already tenured, took a leave of absence (in which he committed war crimes), and then returned to Boalt Hall.

In other words, Edley is treating this as if Yoo already had tenure, and the standard is that someone has to prosecute and convict him for war crimes before he can be fired.

But is that really the way to look at it? Didn't Yoo essentially take another job? Whether or not he actually resigned his post at Boalt, how long do "leaves of absence" last there? 4 years? 8 years? 16 years through a McCain Administration?

If the facts were that Yoo had a job at Boalt, then quit, went to the Bush Administration and committed war crimes, and came back and was given another tenured professorship before the school found out about the criminal conduct, would Edley claim that this conduct is protected by the "no firing except in the event of criminal conviction" provision? Doesn't that apply only to crimes committed WHILE the person is on the faculty?

I think he's just ducking the real issue here. They hired a guy out of the Bush Administration whom they later found out was a war criminal. That's just not the same as hiring a person and then determining whether an off-campus crime committed by a sitting faculty member justifies termination."

Couldn't agree more.

4/11/2008 4:19 PM  
Blogger Armen said...

Uh so when Edley returned to Harvard after the Clinton administration he was "rehired?" That post makes no sense. But then again, people will grasp at anything to come to the conclusion that suits their beliefs. See original post above.

I will also echo 4:05. It's not that he merely knows his stuff, but Prof. Yoo does probably the best job at Boalt of presenting conflicting sides of issues.

4/11/2008 4:29 PM  
Blogger Patrick said...

2:57: I appreciate and sympathize with your point of view, but respectfully disagree for two reasons.

First, the weighing of benefits you suggest necessarily turns on questions of value that are not easily resolved. Or at any rate, they are not resolved both easily and honestly. As your observations make clear, it is difficult to squarely face this issue without considering complex ethical questions, including but not limited to those described by your suggestions about the professional standard for the counsel to quasi-lawmaking bodies like the Executive. I'm not sure there is enough consensus here to justify the dismissal of a tenured professor.

Secondly, while I trust the hearts and minds of people like you and me (I can tell by your sentiments!), I do not trust the hearts and minds of people in general. The suggestion to open the door to what you called contract breaching executive decision to dismiss tenured faculty, is a dangerous one. In this case, as I understand the facts now, such a decision would be based on what is essentially moral outrage over JY's political history, mixed with a dose of political concern over how JY our school's image. From that point of view, it is hard for me to imagine a conceptual distinction between dismissing JY over this issue, and dismissing, say, Bertrand Russell for his dissenting views on WWII.

That's why I think the wise decision is to wait for an inditement, or a conviction, or some other "objective" measure of his conduct. I see this situation as a test of our integrity and commitment to our values: by resisting the temptation to dismiss Yoo, we are not endorsing or condoning his conduct (whatever it actually was). We are standing for the very same principles that motivate our outrage in the first place.

I understand that there are different points of view, but there is mine. At least at this time.

4/11/2008 4:33 PM  
Anonymous Anonymous said...

Firing him would just make him a martyr for the radical right.

Far better to hope the next administration has the political courage to indict him.

4/11/2008 4:33 PM  
Blogger Patrick said...

"Firing him would just make him a martyr for the radical right. "

As it is now, the issue makes a pretty sweet campaign note for the left. Too bad, in a way, the memo wasn't declassified in September.

4/11/2008 4:36 PM  
Anonymous Anonymous said...

I honestly don't feel that the undoubtedly chilling effect that censure would have is negative if it chills academics and professionals from pursuing such basely unethical ideas as [Fill In The Blank]. ~ 2:57.

I thought the whole advantage of the free exchange of ideas was that the exchange was, you know, free. I really can't see how suppression points of view is somehow improving the academic experience. Don't you think that you're enlightened by all perspectives, even (or especially) those you disagree with?

Personally, I will always think that the suppression of "dangerous ideas" is a bigger threat than any idea can be.

It's pretty unfunny to pretend that he's an expert on that subject. ~ Maxwell.

He is an expert on that subject. (Westlaw lists over 70 law review articles on constitutional law.) Just because he has a radical view on the subject doesn't mean that he doesn't understand the issue inside and out.

["]I think he's just ducking the real issue here. They hired a guy out of the Bush Administration whom they later found out was a war criminal. That's just not the same as hiring a person and then determining whether an off-campus crime committed by a sitting faculty member justifies termination." ~4:19.

We're a little quick to throw around the title "war criminal," aren't we? Who gets to decide who that applies to? Can I call John Paul Stevens a war criminal for his vote in Medellin?

On an second point, I don't really buy the idea that professors "renounce" tenure by serving in government. Academic freedom must surely include the freedom to participate temporarily in "public service."

4/11/2008 4:39 PM  
Anonymous Anonymous said...

Armen etc: I think you guys are missing the point.

Yoo played an active role in enabling the Administration to TORTURE people, with full knowledge of what he was being asked to do - he isn't a fool. At least some of his victims were innocent, and some of them died as a result.

I understand why Edley can't fire him. What I can't understand is how my fellow students are comfortable being in the same room with him.

4/11/2008 4:43 PM  
Anonymous Anonymous said...

"contract-breaching executive decision by Dean E. and a subsequent lawsuit"

So, we'd send a message about the importance of abiding by the rule of law . . . by flouting the law?

Anyway, employment law isn't like the law of commericial contracts. You can't fire people unlawfully and say "sue me if you can for what I admit is a breach." The employee is overstated over your wish.

4/11/2008 4:47 PM  
Anonymous Anonymous said...

The good news is that there is an internal DOJ probe going on. Who knows what other memos Yoo wrote? He might yet be, quite literally, hoist by his own petard - especially if the probe concludes after the election.

Who wants to bet the Bush Administration is pressuring the DOJ to wrap up things quickly and exculpate Yoo?

Finally I don't buy Yoo's "I didn't know what the big bad Bush Administration would do with my disinterested advice" line that he's trying to peddle in his most recent interview. C'mon, if you want to torture people, don't go all namby-pamby when you realize there might actually be consequences!

4/11/2008 4:54 PM  
Anonymous Anonymous said...

Who wants to bet the Bush Administration is pressuring the DOJ to wrap up things quickly and exculpate Yoo? ~ 4:54.

I can't think of a single instance where the Bush Administration has made any effort to defend or exculpate John Yoo. Can you?

Finally I don't buy Yoo's "I didn't know what the big bad Bush Administration would do with my disinterested advice" line that he's trying to peddle in his most recent interview.

I thought John Y*o's main distinction is that none of his memos ought to have been applied to Iraqi prisoners (who were clearly entitled to GC protection).

4/11/2008 4:59 PM  
Anonymous Anonymous said...

4:59: Hmm, I think that Yoo wrote the memo *at the behest* of White House Counsel Alberto Gonzales and Cheney's Chief of Staff David Addington, and also that the advice in it *was subsequently followed* are relevant facts.

At the very least, the fact that the Administration implemented a systematic regime of torturing detainees, based on the memo, commits them to defending it - and by extension, defending Yoo.

4/11/2008 5:11 PM  
Blogger Varty said...

It is nothing short of appalling that at an institution that is so proud of its Freedom of Speech roots (here and here) there are so many people adamant to fire a professor for his work and theories. This is turning into another fine example of free speech for me but not for thee.

I applaud Edl*y for taking the moral high ground and defending Y00's first amendment rights regardless of the fact that he adamantly disagrees with him.

4/11/2008 5:45 PM  
Anonymous Anonymous said...

Patrick: I'm a fan, by the way. You have a great way with words. That said, I respectfully disagree with most of what you argue.

1. First of all, you are right: what everyone thinks about the possible firing of JY is an important issue. Thanks for the forum! Anything is better than the input that we have right now, which is zero. Make no mistake: the decision is being made for us.

Alas, even if we had a proper "town hall" on this, I feel that the argument of Dean E. supporters is likely to be engendered as the grossly overstated "threat to the right to and propriety of academic freedom of speech writ large" that Dean E., and many here, pretends that it is. Indeed, especially without effort by those who reject such hyperbole, *nothing* is likely to come of putting this question to the students. Regardless of the vicissitudes of the democratic process (which we are likely to continue to be denied in any case), the issue at hand is not whether a similar decision is to be applied to any other professor with unpopular ideas, just those unpopular ideas that are tantamount to monstrosity. Hey, don't like the Rule Against Perpetuities? Not a monster. Want to integrate Battered Women's Syndrome in crim law? Not a monster. Believe that emotional damages are a crock? Not a monster. Advocate and thereby cause torture to maintain social control? Monster. Dean E. can spin anything; surely he can make sure that everyone knows that this decision poses no threat to people who are not torture advocates or thereabouts on the ethics scale. Does it pose a threat to people who *are* this way, as such is defined by a representative majority of reasonable people on a extremely rarefied case-by-case basis? Yes, monsters are bad and we should not employ them to teach us.

Indeed, to avoid too great of over-deterrence (the chill everyone is talking about), in this case we should not change the rules to how the Dean can make a decision about canceling tenure; rather, here we should break these rules, noting this case as an outlier, and accept the "negative" impact of less torture advocacy at Boalt, not to mention the substantial financial consequences of breaking a contract. This we should do as a responsible, ethical, and just realization of our shared obligation to humanity. Sometimes you've got to break the rules to do whats right. This is a valuation of justice above the goose-step adherence to legal process.

Perhaps for some of the above factors, as well as the simple cost of the debate, you talk of the process of making such a decision as a community "difficult", "complex" and "not easy". Indeed, this is the case here. I suppose that one might ask: what else could we be doing with our time? Is spending our time in CARC, ELQ, juvenile law, etc. more effective at improving society than getting rid of JY? Perhaps. Perhaps. However, are these activities all that we do? Don't we waste time on television, ATL, drudge, youtube, and (dare I it?) this blog? Yes, it would be an investment of time. To say that it is too complex is to concede the point but not the price. I hereby challenge that price: how much is the unjust suffering of one more person worth?

Second: you say that you trust your cohorts more than "the people" and yet in your next sentence you rely upon the national "democratic" process to give you the easy answer that you yourself are unwilling to work towards. I agree with your distrust of the horde (especially if it lives in a nation calling itself democratic but only giving nominal voter choice); it is for this very reason that I would like this decision to be made as a community here at Boalt, as I trust this horde slightly more than I trust the national horde. You know it: waiting for a conviction for war crimes is unwise ethically, as that conviction will more than likely not come.

As for the double standard argument that you raise by implication: you argue that to not wait for a conviction to censure JY would be to reject that same respect for justice that substantiate my belief that torture is ethically wrong. The comparison is way overstated. I think that I can simultaneously revere the basic principals of justice as they are systematized by our legal system and still reject torture advocacy as a extreme moral outlier deserving swift and uncompromising economic penalty. Especially in this case where the evidence is clear, I see little harm in denying JY the right to due process.


4/11/2008 5:57 PM  
Anonymous Anonymous said...


Did you read the messages? EVERYONE - with only a single exception - agreed with Edley.

I wonder what it would actually take to get the Boalt community to disagree. So torture doesn't do it - how about rape? Concentration camps? At what point does the 1st Amendment right not trump the morally repellent nature of the advocacy?

4/11/2008 5:58 PM  
Blogger Varty said...

5:58, I did. But I also read this which seems to have at least in part sparked the Edl*y memo to the Boalt community.

And as to when the 1st amendment right stops trumping: quite frankly, as far as I'm concerned, never. Regardless of how much something makes my blood boil and outright disgusts me, I can never advocate censorship (example, i could never support or advocate something like this).

Instead of firing Y*o why not encourage other professors who are clearly well-versed in the subject matter to write rebuttals and publicize them? Vote, publish, enlighten, debate - but never censor. You'll never change minds with censorship.

4/11/2008 6:15 PM  
Anonymous Anonymous said...

5:58 here: I agree with you. I also don't believe in censorship. What I disagreed with was your assertion that the Boalt community is not solidly behind Edley (if, thankfully, not Yoo).

I think Yoo's words speak for themselves. He enabled innocent people to be tortured by the U.S. government, in the real world outside of academia. With any luck, his actions will have appropriate personal consequences without Boalt having to get involved.

It is, however, a sad world where Matthew Diaz can lose his law license, be thrown out of the Navy, and end up bankrupt after 6 months in prison - all for standing up for the rule of law - and John Yoo gets to play the martyred "lonely conservative voice on the faculty" in interviews with the Chron.

4/11/2008 6:30 PM  
Anonymous Anonymous said...

I laughed out loud in reading the last comment's reference to the "real world outside academia" -- but I doubt that was the commenter's intention. In the REAL WORLD, torture deeply divides the American people; everyone agrees it's wrong, but most people think it's sometimes justified in rare circumstances. (See, e.g.,

Maybe in the sanctity of Simon Hall or the backyards of lovely apartments in North Berkeley, it's "obvious" that John Yoo is, to sample the comments, a monster, war criminal, Hitler-like, etc. But I doubt most Americans share that belief.

However much his memos evinced shoddy logic, dubious ethics, and sloppy lawyering (and I think they did) -- and however much the consequences of them were to make America less safe, less respected, more isolated, and more shamed (which I also think they did) -- you can't dance away from the fact that he was trying to give U.S. military and intelligence officers the freedom they thought they needed to save American lives. That might not matter to you. But it matters to me and, I'm reasonably sure, most of America. To then proceed equate that effort with being a "monster" is to display a moral and intellectual apparatus that probably stopped developing sometime around your 7th birthday.

4/11/2008 7:12 PM  
Blogger Patrick said...


". . . you talk of the process of making such a decision as a community 'difficult', 'complex' and 'not easy' . . . "

How on EARTH did you manage to avoid the temptation to use the word "tortured" in that sentence?


There are a handful of things on which we completely agree: the decision is being made for us, nothing is likely to come by putting the decision to students, the political/legal process cuts against any realistic expectation of social justice, and there is often quite a gulf between the act of following the rules and the act of doing the right thing.

The point I would like to get across is related to your proposal to consciously break the rules and note this case as an outlier, presumably because of the monstrosity involved. I just don't see any clear, workable standards for 'outliers,' or 'monstrosity,' and I don't trust the gut reactions of people when it comes to making the right call. (I like your use of the word "horde.") We are not going to have any such clear standards until we have a conversation about the values we are going (as a community) to treat as assumed and and not longer subject to revision. And we are not going to have that conversation because, frankly, as a culture we just aren't interested in committing to building a political process on a moral foundation.

(I am so going to get flamed for this comment, I just can tell.)

At any rate, although I still don't agree (particularly with the suggestion that there would be no harm in denying JY due process -- though the irony would be something to behold) I do think there is something to what you say. Interestingly (to me), one model proposed by the "pro torture" camp goes something like this: we should set clear rules and standards AGAINST any kind of torture, and we should enforce them. This will cause military commanders to break the rules only when absolutely necessary, and only when they honestly believe the benefits outweigh the costs. Unless I am mistaken (which tends to happen) that's not unlike the 'sometimes you have got to break the rules to do what's right' argument you make with respect to dismissing JY.

Most of the time I agree with that position. I seem to have little respect for the rules, especially if they exist only for their own sake. In my pre-law school line of employment, for example, it seemed like there were LOTS of rules to follow, and all the damn time, no less! The rules often got in the way of our ability to do our job properly, safely, and efficiently. So, like any rational actors, we broke them. Extending that reasoning to an academic setting, a person might argue that the rules and traditions of tenure are getting in the way of the implicit ethical duty that a public university owes to society. So we should break them.

But that conclusion is hard to back up until we know what the goals are. The difference between our political process and the nature of my previous job was that we KNEW what the objectives were, and we were all on the bus, so to speak. That meant that we could compare the outcome of rule-guided behavior with the outcome we all desired, and reject the rule-based behavior when it didn't fit. We just don't have that kind of clarity or consensus in our political processes, especially with respect to ethics and values. And without some kind of agreed upon standard by which to measure behavior as "monstrous" or an "outlier," there is no alternative but to turn to the the gut reaction of the horde, or the staunchy, confined, conservative system of formal legal rules.

Btw, which of us is the greater pessimist?

4/11/2008 7:41 PM  
Anonymous Anonymous said...

Tenure would not mean much if the standards of whether or not it was breached was whether you were condemned by people on the Internet. That's why an objective standard like conviction of a crime is good.

Also, advocating the termination of Yoo even though one knows it would be illegal brings you down to his blatant Constitution violating level.

4/12/2008 2:39 AM  
Anonymous Anonymous said...

Dear everyone who stepped to me:

1) I *did* take Yoo's Con Law class. Not impressed with his teaching ability--he seemed to draw heavily from the Emmanuel's outline--but that was a long time ago and he may have improved.

2) I questioned his expertise when teaching the separation of powers specifically, not the Constitution in general. He his made it abundantly clear that he considers this concept an inconvenient obstacle to executive supremacy. His many publications confirm this.

3) Despite his swell demeanor and his admirable sartorial style, I think it's impossible to ignore that his classroom embrace of conflicting viewpoints is massively hypocritical. Students aren't going to be able to believe him if he says "well, I proposed this radically counterintuitive viewpoint when lives were at stake, but here's what I'm *really* quite open-minded."

4) Have you read the memo? For such a ginormous intellect, that there's some sub-P reasoning.

5) I have *never* compared him to Hitler except physically. Torture is more of a Stalinist institution.

--Maxwell Demon

4/12/2008 11:56 AM  
Anonymous Anonymous said...

P.S.--3) should end, "'but I'm *really* quite open-minded.'" My bad.

--M. Demon

4/12/2008 11:59 AM  
Anonymous Anonymous said...

Some of these points were made already, but I'd like to add my voice to the chorus condemning the those who wish to fire Yoo:

(1) War criminal? What war crime has been committed? I doubt that anyone can identify a specific, legitimate crime by Yoo.

(2) 2:57--"standard of care"? Can you actually identify some "standard of care" that wasn't followed. No you can't because those are just empty words.

(3) If you think that Yoo is horribly wrong, don't you get that bringing his ideas to the fore is the best way of proving them wrong? I don't think anyone has improved upon Mill's argument in "On Liberty" that even bad ideas are worthwhile because they lead to "the clearer perception and livelier impression of truth, produced by its collision with error."

(4) Monstrosity? The debate over torture isn't over yet. There is no clear consensus that torture is wrong in any circumstances. Heck, if you accept the premise that there is a sociopath intent on killing hundreds or thousands of civilians, with the means to do so and through torture this destruction could feasibly be prevented, it would be indefensibe not to practice torture. I'm furious over the conduct of the Bush administration, but that doesn't mean that a viewpoint that recommends torture is monstrous.

(5) Yoo wasn't making policy, he was providing legal advice. Scapegoating Yoo is an easy way of failing to take responsible for the fact that it was the American public who re-elected this Bush administration, it was Congress that authorized the invasion of Iraq and has failed to hold the Bush administration accountable. Those who blame Yoo are mistaken in thinking that this one man is the cause of our policy. They do not want to admit the uneasy truth that our democracy has chosen this course of action.

4/12/2008 12:28 PM  
Anonymous 2:57 said...

Patrick and others: thanks for responding so passionately.

This issue is interesting (to me) because it necessitates hypocrisies on either side of the debate. My standpoint is that I would, in the eyes of some unjustly, restrict the rights to justice of a torture-causer in order to uphold the rights to justice of each innocent tortured by the torture-causer's acts. Terribly hypocritical of me, I'll admit.

Those who wish to protect JY do so in defense of his rights to freedom of expression. You are willing do so by sacrificing those who suffer unjustly due in part to his actions (which, mind you, include all of us, if you consider the right to a tri-partate, balanced government one of our inalienable rights).

Yes, its all very ironic. So what? That certain intellectual dissonance, unavoidable by either side in this case, does not escape the issue at hand: should we condemn someone for an idea that has proximately caused the unjust persecution of innocents? On balance, I believe that the break with justice that I advocate is much less than the break with justice advocated by those who would protect JY.

Patrick argues that we have no social definition for "monstrosity" so firing JY would not be an objective. An all consuming, eternal definition of monstrosity is not intellectually necessary here (nor a realistic necessity for any political action at all, as no definition is constant). The only definition that I am willing to make *right now* is "JY = monstrosity". The line that I draw encircles JY, and JY alone. If another tenured professor here similarly eviscerates our Lady Justice, that case should be decided on its merits alone. One good test that I can think of: If a person's acts raises majority community ire enough to cause outcast, they are rightly labeled monstrous, as they are like monsters.

From what I gather from this board, this will not happen here. I guarantee however, that each person here can imagine a situation in which they and those they love are so personally affected by a professor's actions, despite their "legality" as defined by our messed up national political process, that they would want to put the cause of their suffering out on the street. If I am right about this, then you have conceded my point, and we are haggling about the price. Specifically, we are arguing about the price of justice, and how that price is defined exclusively by our selfishness, our ineffectuality, and our overwhelming fear of putting our own comfort at risk to advocate justice for those whom we will never meet. You make your arguments with whimpers, not bangs. Our end draws ever closer. But a new and improved definition of justice is offered on discount until then.

About my use of the word monster: whether or not there are life-saving benefits to torture, would you deny that the unjust persecution of an innocent person (more likely to occur due to JY's acts) by your own government, elected with the voice of the majority, is a monstrosity? If not, I challenge you to come up with another, better word for it. A fair deal? How would you feel if it was them torturing us, or you, or your brother? We kill innocents in Iraq. I doubt very much that you would not call similar torture against our soldiers or civilians on the part of Iraqi freedom-fighters, were it to mean saving innocent Iraqi lives, monstrous. Indeed, the prevention of torture was one of the reasons why we went to Iraq in the first place. I believe that the moral underpinning for a belief that torture on the part of the American government is an acceptable price of war only extends as far as our national borders, a convenient, if unconvincing, attempt at self-justification.

JY followed to the tee the standard of care that lawyers are expected to uphold in dealing with normal clients. However, the executive is not a normal client but rather is empowered to harm society (the prevention of which the standard of care attempts to achieve) in a different and more terrifying way than a normal unethical client. Therefore, JY should be held to a higher standard of care, one that is based on a level of respect for universal justice somewhere above that propounded by an advocacy for torture. He violated such a standard of care; he should be punished.

Lastly, I am for the free flow of debate within society, especially if it regards new ideas. Mill's thesis is great in that it offers rational support for the idea that the discussion of new ideas is a benefit to society (Copernicus, Newton, Plato, Aristotle, Butler, etc.). JY's ideas are not new and their discussion is not beneficial to our society because the default position of common people is the truth of an inherent respect for justice. This truth is already well defined as it collides with the "error" of tyrannies caused us by our fellow man frequently enough in our everyday lives. The marginal increment of definition our "respect" for justice has achieved from this discourse is not worth the justice that was avoidably lost to bring it about. To argue that your mental development is worth the unjust suffering of others is, I think, not what Mills had in mind. New ideas: good. Old ideas rehashed to further the ends of a corrupt and unjust regime through human suffering? Real bad.

In our system, given our inherent respect for fair treatment, the only thing that JY's idea adds to the discourse is that they increase the (albeit small, but existent) propensity that others will act as he did, which was, as many here agree, morally reprehensible, and therefore harmful.


4/12/2008 1:53 PM  
Anonymous Anonymous said...

Cool, even Chancellor Birgeneau comments here! (you can't trick me "2:57"!)

4/12/2008 2:40 PM  
Blogger Patrick said...

Answer established: I am the greater pessimist.

You are correct to point out that there is plenty of hypocrisy to go around. For my part, I'm not ashamed of mine -- I generally believe that when procedure gets in the way of the proper outcome, procedure should be ditched. I also categorically reject as unjust almost every single thing this administration has done, and after reading around (see OP's links, above) about the quality of the memos on their legal merits. And yet in this case, I feel JY deserves process.

I am willing to accept that piece of "intellectual dissonance" because I am more comfortable with that dissonance than I am with the standard you propose for monstrosity. I think the standard you propose (majority community ire + outcast = monstrosity) poses an unacceptable risk to our country's political values. Think Galileo Galilei, Bertrand Russell, and (more recently) Armen Adzhemy*n. These people all meet your standard for monstrosity, yet are not morally reprehensible (well, the jury may be out on one . . . )

If we are going to avoid the tyranny of an emotional majority (I'm looking at the 17th Catholic Church here, but we needn't stop there) what we need is some form of considered standards by which to make these decisions. Not just majority ire, or the gut reaction of the horde. I see two ways to do that. First, we could sit down as a republic and have a genuine conversation about the moral values we want our political entities and processes to embody. Because that's just not going to happen in America, we are forced to the second alternative, which is to accept on faith that the laws and customs of our country represent the closest thing we have to the kind of conversation I just described. Standing by procedures like due process, even when they seem totally unnecessary, is the only way we have to protect us from future situations in which we may be equally certain but erroneous. Or, wrong, in both senses of the word.

I understand that some of my observations conflict. But without some degree of reliance on our political institutions (including tenure), the future starts to look pretty hopeless. That reliance seems like it can only come from sticking by those institutions, even when the issue seems too clear-cut to need them.

Q1: What do you think of Dostoyevsky‘s baby? (In case you are not familiar, link here. The question is essentially: would you torture a baby for eternity if doing so would bring peace to humankind?)

Q2: Who is a greater threat to the integrity of the UC system, attitudes like JY's, or attitudes like Chancellor Birgeneau's?

4/12/2008 2:43 PM  
Anonymous Anonymous said...

I don't think 2:57 is a law student.


(1) A tri-partate balanced government is not a "right," and if it were, it would not be inalienable. It would be alienable.

(2) Allowing Yoo to continue at the university does not cause anyone's suffering. It's not like if Yoo is fired, then government policy will magically change.

(3) 2:57 doesn't seem to understand the difference between condemning someone and seeking the abrogation of their right to tenure. I condemn Yoo for his actions at Justice, but I support his right to tenure.

(4) How can Yoo hold to some universal standard of justice that prohibits torture at any place or in any time, when it is not universally accepted that torture is categorically unacceptable? 2:57's standard of care argument is nonsense.

(5) Mill didn't only value new ideas. He valued even completely wrong ideas because they lead to "the clearer perception and livelier impression of truth, produced by its collision with error."

(6) The guy doesn't know shit about the meaning of "justice." Someone call Socrates.

I liked these guys better when they were just hanging around in orange jumpsuits and not posting on our blog. Look, 2:57, if you're unhappy with the government's policies, head to Washington. It's not like that stuff is decided in Berkeley and even if you get what you want and Yoo is fired, government policy will continue on as before.

Yours truly,

4/12/2008 3:33 PM  
Anonymous Anonymous said...

2:57, is your problem with Yoo's position on torture, or the fact that Yoo's position was used to justify torture of innocent people? You need to separate the two. His position that ill treatment was legal when applied to enemy combatants doesn't necessarily make him a monster (using your test) because a lot of Americans would agree with that position. And, unless he stated that torturing innocent people was OK, it isn't quite fair to label him a "monster" for the use of those interrogation techniques on people who happened to be innocent any more than it would be OK to label every legislator a monster for voting to enact a criminal law that later happened to be mistakenly applied to an innocent person. After all, only an incredibly naive legislator would feel certain that every criminal law passed would be applied with 100% accuracy.

4/12/2008 4:08 PM  
Anonymous - 2:57 said...

I think that Dostoevsky's baby is an interesting thought experiment, but a patently impossible hypothetical. Thus, its lessons are thoroughly inapplicable to the situation at hand. Indeed, due to its sheer impossibility, it is inapplicable to EVERY situation that real life presents us.

The questions presented by a strong faith in justice are tricky and not to be solved in one fell swoop. As I have tried to state many times during this discussion, JYs firing would not unalterably change forever the moral compass by which we and this institution operate, it would simply be the act most appropriate right here, right now, by the persons most effected by making it: us, the most-invested owners of our community.

Do you think that it is fair to compare the persecution by death of Galileo to the potential firing of JY? What, then, about the long imprisonment of Russell with JY's resultant early and fully-subsidized retirement and the many days of golfing that it would bring? How about your implicit comparison of these three men's crimes against the majority? Galileo's acts were pacifistic, as were Russells. The same cannot be said about YP. Further, are the ideas that I advocate honestly comparable to those of the 14th Century Catholic Church; to wit: is a breach of an employment contract honestly a persecution on scale with the slaughter of many thousands of innocent peoples? A vicious attack, sir. I'll thank you to give me back my dignity, and in return I'll give you back yours.

As I stated before, I too fear the tyranny of large groups of my fellows, and I like rules because in general they seem to help to protect me against persecution. I like the rules of our nation, in general, and I like the rules of our school. However, should we reasonably break those rules if justice would be prevented by their blind following? Yes. Your suggestion for a forum by which to make this rule-breaking decision is an appropriate measure to do so; however, it does not need to be made as a nation, we have an auditorium well suited to the purpose to make this decision as a smaller community of the most-effected.

You want process? Lets get it. There are mechanisms by which we can reach or refute such a rule-breaking decision without allowing an emotional majority to recreate an Inquisition or the McCarthy trials. The debate should be long, and preferably catered. No action should be imposed without absolute certainty that those who wished to speak have gotten their chance to do so, YP himself included. The reason: the more intelligence that imbues the process of decision making, the more likely we are to reach an acceptable verdict. Indeed, my faith that our laws provide for justice is based upon the idea that the national legislature, in its drawn-out process of review, gets further and further away from emotional and more and more towards intelligent and representative decision making.

However, we can *here in this community* improve upon the process of the national legislature and judicial system so long as we allow the full debate to occur. To wait for our country to provide a decision for us, while knowing that to do so is to risk greater injustice than we as a community could prevent through proper procedural measures, is a reasoning to be highly favored by those who would cause "lawful" tyranny in the future through political trickery.

As for the Chancellor's impact upon our University, as compared to JYs? I don't know much about the many activities of that office, but I find the comparison is once again odious. Were the tyranny imposed by long, drawn-out debate using many a frilly word a moral crime tantamount to JY's, you and I would be as guilty as the Chancellor. I am not the Chancellor. I walk the halls with you; this is my community as it is yours. I would shake your hand, but you'll excuse me that I see little benefit to be had in removing my precious cloak of anonymity.

Also: I HAVE to study now, and I see little further benefit to continuing this debate, as honestly awesome as it has been to meet you all on the field of intellectual battle. Also, I know that I sound like a prick in using such flowery words. But I use them here to convey the uncynical and honest respect that this type of language once symbolized. In short, I beg your pardon for my employing the syntax of a modern douchebag.

In the end, Patrick is correct in his pessimism. We will not be offered the choice to decide for ourselves the moral character of the world in which we live. I join you there, not without hope that I (or perhaps Patrick) may at some point be powerful enough myself to realistically, but none-the-less cynically, sometimes disregard the forum to make unilateral decisions that I believe to be right, as a benevolent dictator. Thanks for the lesson, Dean E.


4/12/2008 4:08 PM  
Anonymous 2:57 said...

Um, also: I don't know why I referred to JY as YP in that last post. Pardon me. If you are not studying, get out and enjoy the great weather (except 12:28, who should read over my posts, realize that he mischaracterizes my arguments, and then go and enjoy the good weather!)


4/12/2008 4:39 PM  
Anonymous Anonymous said...

I don't mean to let facts get in the way of an ideological debate but I thought I'd mention that Yoo can't be indicted because the Detainee Treatment Act of 2006 specifically granted immunity from prosecution to all of the architects of any torture policy. Therefore, he can't be convicted and there is literally no way Edley can satisfy his literal reading of the limitation on firing someone for criminal conduct. Of course there is an argument for making an exception for Yoo since it is likely that no one thought of the scenario of there being be a war criminal on the faculty who would be immunized from prosecution by an act of Congress. It seems the spirit of the provision Edley cites is that "a tenured professor can be fired for criminal acts but the standard is very high." Yoo's conduct may meet a high standard even if he can't be convicted.

4/13/2008 6:24 PM  
Anonymous Anonymous said...

What Edley needs is a justification for circumventing the intention of the rules and exceeding his power as an executive. But who could provide such a justification? Who has that kind of experience?

--Maxwell Demon

4/13/2008 7:47 PM  
Anonymous Anonymous said...


4/13/2008 8:13 PM  
Anonymous Anonymous said...

I read Dean Edley's letter as an invitation to give him the type of evidence that would justify removing Yoo from the faculty. He does us a favor by framing where the argument needs to go next (at least those of us who think he shouldn't be on the faculty because there are lots of qualified constitutional scholars who haven't authored bad legal analysis that resulted in a serious undermining of the progress of civilization that came with the Geneva Convention).

4/22/2008 7:45 PM  

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