Did Boalt Pass the Buck on Yoo?
The Daily Californian ran an article in yesterday's sports section entitled, Bear Naked: Getting to Known John Yoo.
The author of the piece, which surveys a two-hour International House chat with Yoo about his experience as a sports fan in Washington, begins by noting, "[I]t's entirely beyond my scope to discuss the moral and technical merits of the unitary executive theory. What I did learn, through a two-hour conversation at the I-House, is that Yoo is an interesting man and that, well, he's a man."
Both of those sentences make much-needed points: Con law is hard, and people are human. Those points are much-needed in the light of the fact that the most vigorous commentators on Yoo are also the people who know the least about the issues, and who neglect that Yoo is, after all, a human-decision maker. Just like the rest of us.
Having spent last spring in Yoo's class, having taken a personal interest in the issue, and having gained a few months of perspective, I would like to share one thought about Yoo, and our law school.
My thought is that Boalt dropped the ball. Think about it: John Yoo, a tenured professor at Berkeley Law, took a political bullet for the President because he was the President's lawyer. Talk about a teachable moment in legal professionalism! Academic freedom; service to country; legal ethics; politics; war; tenure -- all these issues were floating around our hallowed halls last spring, yet if you asked most of our professors whether Yoo made the correct ethical or moral decision, you would have had better luck listening for a pin drop than an answer. In substance, it matters little to me what Boalt professors and faculty think about Yoo or Bush or torture. But the fact that they bit their lips and held their tongues in front of 800 soon-to-be lawyers seems disappointing. What could have motivated that silence? Political nonchalance? Adademic courtesy? Decorum? What kind of message did Boalt send to a rising generation of America's attorneys? That niceties are more important in the law than frankness or moral compass?
Maybe I've been party to the wrong conversations; maybe I missed the big meeting. But I doubt it. This issue involved a Boalt professor's central role in international politics, made national headlines and kept pundits wringing their hands for weeks. Yet, as my learned brother Earl Warren once remarked in passing, all we got was a letter on a website and a few comment-threads on this blog.
In BERKELEY.
The author of the piece, which surveys a two-hour International House chat with Yoo about his experience as a sports fan in Washington, begins by noting, "[I]t's entirely beyond my scope to discuss the moral and technical merits of the unitary executive theory. What I did learn, through a two-hour conversation at the I-House, is that Yoo is an interesting man and that, well, he's a man."
Both of those sentences make much-needed points: Con law is hard, and people are human. Those points are much-needed in the light of the fact that the most vigorous commentators on Yoo are also the people who know the least about the issues, and who neglect that Yoo is, after all, a human-decision maker. Just like the rest of us.
Having spent last spring in Yoo's class, having taken a personal interest in the issue, and having gained a few months of perspective, I would like to share one thought about Yoo, and our law school.
My thought is that Boalt dropped the ball. Think about it: John Yoo, a tenured professor at Berkeley Law, took a political bullet for the President because he was the President's lawyer. Talk about a teachable moment in legal professionalism! Academic freedom; service to country; legal ethics; politics; war; tenure -- all these issues were floating around our hallowed halls last spring, yet if you asked most of our professors whether Yoo made the correct ethical or moral decision, you would have had better luck listening for a pin drop than an answer. In substance, it matters little to me what Boalt professors and faculty think about Yoo or Bush or torture. But the fact that they bit their lips and held their tongues in front of 800 soon-to-be lawyers seems disappointing. What could have motivated that silence? Political nonchalance? Adademic courtesy? Decorum? What kind of message did Boalt send to a rising generation of America's attorneys? That niceties are more important in the law than frankness or moral compass?
Maybe I've been party to the wrong conversations; maybe I missed the big meeting. But I doubt it. This issue involved a Boalt professor's central role in international politics, made national headlines and kept pundits wringing their hands for weeks. Yet, as my learned brother Earl Warren once remarked in passing, all we got was a letter on a website and a few comment-threads on this blog.
In BERKELEY.
Labels: Academia, Law School, Yoo-Hoo
posted by Patrick Bageant at 6:45 AM
14 Comments:
Patrick, can you give an example of a single thing the Boalt administration could have done? All the ideas I can come up with seem like they would have quickly devolved into a public forum for Boalt students (and possibly faculty) to condemn Yoo.
We discussed Yoo's memos in Guzman's International Law class. Students (and Guzman to some extent) criticized the legal reasoning but not Yoo himself. Seems appropriate.
Criticizing the legal reasoning is not what Patrick suggests above. He views the Yoo memos and subsequent backlash as a springboard for discussions about legal ethics, service to country, etc. It is easy to critique someone's reasoning without attacking the individual. It is not so easy to criticize someone's ethical and political choices without villifying the person.
10:23 here--I understand what you're saying 11:12. I was just saying that there were some conversations going on, even if not in the manner Patrick would like. Personally, in the classroom context, I might prefer an academic conversation, though Patrick's point is well taken.
I would be amazed if John Steele (does he still teach there?) did not raise the ethics issues in his professional responsibility lectures.
As far as silence from the rest of the faculty members: The ones I spoke with privately told me they detested what Yoo had done (both as a substantive legal matter, and as a professional/ethical matter) but pointed out that they were still forced to share the same building with him for the rest of their academic careers.
^^ Oh, and adding to the above: Some faculty members told me they sought to avoid making Yoo into a martyr.
[T]he most vigorous commentators on Yoo are also the people who know the least about the issues, and who neglect that Yoo is, after all, a human-decision maker. Just like the rest of us.
Patrick, you're painting with too broad a brush here.
I agree that the 60-year-olds protesting in front of Boalt in orange jumpsuits are not con law experts or masters of nuanced arguments. But they are hardly Yoo's only critics or most "vigorous commentators."
All the world's major human rights organizations have condemned the torture memos, including Amnesty, ACLU, Human Rights Watch, and the Center for Constitutional Rights. And as I'm sure you know, preeminent con law scholars--Bruce Ackerman (Yale), David Cole (Georgetown), plenty of others--have also denounced the memos.
These are hardly "the people who know the least about the issues."
@3:41--the "martyr" thing is the same excuse I've heard for why it might be good that Bin Laden hasn't been caught (yes, I'm comparing Yoo to Bin Laden. OMFG!) In any context, I find that argument to be a rationalization for inaction.
First, a trivial distinction. Ethics addresses norms and standards. Morality addresses right and wrong. That's why I think it is possible to discuss a person's ethical choices without vilifying the person. Morality, well, that's a little tougher.
What could the Boalt admin have done? They could have used the moment to teach us about the norm for attorneys who are asked to provide legal advice supporting controversial policies? They could have compared that to the standard. (My guess is they're different.) They could have aired the issue out at a town hall or lunch meeting (seems a tad bigger than, say, whether the stinky trees are going to leave the courtyard, doesn't it?) instead of letting it fester and go unspoken.
What's weird is that some Boalt faculty are snickering around to students about detesting, and being disgusted. Those who read the Esquire article know that someone at Boalt apparently refuses to attend faculty meetings with him. This all strikes me as kind of catty and trivial response -- has anyone at Boalt actually taken that big Principled Stand with which everyone seems to tacitly agree?
It is at least possible to come to the conclusion that, as a matter of integrity, Yoo handled last spring with much more grace than some of his colleagues. I never got the sense that he dodged the issue, or the bad press, or lied, or even backpedaled on his position (which must have been very tempting come late April).
None of this goes to the merits of torture/US policy/svc to country/attorney morals issues. It's just something I noticed last spring, and it made me feel uncomfortable. For such a world-class, high-powered institution (90k for our new name, right?) one might have thought the opportunity get these things into law students' heads would have been seized. At any rate, I would have thought so.
4:18: I take it back. I guess by vigorous I probably meant "most annoying." You're absolutely right about all of those authorities.
4:23 - I agree. I didn't mean to condone the positions expressed to me by faculty, just passing them along.
- 3:41
there was a pretty long lecture in ethics class about the torture memos.
@3:41--understood. I ain't mad at ya.
--4:23
If we're going to have moral-cum-ethical critiques, then this should be a regular institutionalized practice in regard to all profs and their personal/extracurricular activities--not the kind of precedent one would like in an academic environment. Apart from that minor issue, Yoo (whether you agree or disagree with his analysis) unquestionably sought to serve his country at a time of great challenge when quick answers were needed to guide attempts to avert another catastrophe. People tend to forget the context . . .
Some honest questions:
what are Boalt's students/alumni/faculty doing about Yoo? I graduated from Boalt a long time ago, but would like to know what's been tried.
Is a tenured professor who is charged with war crimes (speaking hypothetically) removable by the University?
Is "academic freedom" a real defense to Yoo's stance (I have heard that Dean Edley defends Yoo on that basis) given that he wrote the torture memos on government time, and not in his role as a Boalt professor?
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