DE Stands Up For Academic Freedom
In today's Contra Costa Times, DE responded to an article which inferred that the University may discipline Y*o for his opinions during work for the Bush administration. Click on the title of this post for a link.
Please note that I do not include an opinion here as to torture memo's, or any other work by Professor Y*o. While I know that there are people who have strong opinions on both sides, MY belief is that this country, and even moreso this university, should be a place where people may express their views freely, honestly, and constructively. Professor Y*o did work in the service of this country, even if you disagree that it was the correct path for the country to go. He was doing what he thought was right, even though it may turn out that he was wrong.
Remember that a University is not a court of law, and is not a judge on whether academic views are correct, legal, or just. As DE discusses in the article, it would be a step back for academic freedom to punish someone for expressing views that foster academic debate. If Professor Y*o did something illegal, it is for prosecutors and courts to decide---not Berkeley.
I commend DE for standing up for one of our Professors. Even if you disagree with Professor Y*o (and many at Boalt do), we should all be glad that McCarthy-esque witch-hunts will not be tolerated by the leaders of our school.
Thank you Boalt, and thank you, DE.
Please note that I do not include an opinion here as to torture memo's, or any other work by Professor Y*o. While I know that there are people who have strong opinions on both sides, MY belief is that this country, and even moreso this university, should be a place where people may express their views freely, honestly, and constructively. Professor Y*o did work in the service of this country, even if you disagree that it was the correct path for the country to go. He was doing what he thought was right, even though it may turn out that he was wrong.
Remember that a University is not a court of law, and is not a judge on whether academic views are correct, legal, or just. As DE discusses in the article, it would be a step back for academic freedom to punish someone for expressing views that foster academic debate. If Professor Y*o did something illegal, it is for prosecutors and courts to decide---not Berkeley.
I commend DE for standing up for one of our Professors. Even if you disagree with Professor Y*o (and many at Boalt do), we should all be glad that McCarthy-esque witch-hunts will not be tolerated by the leaders of our school.
Thank you Boalt, and thank you, DE.
Labels: DE, Honor Code, Rabid Liberals, Yoo-Hoo
posted by McWho at 10:43 AM
29 Comments:
Why are you editing out Yoo's name? Seriously, he's not a public figure yet?
Much as I respect the blogger, I have to take serious issue with this post. Anyone familiar with the DOJ's most recent - damning - report will conclude that Yoo-hoo breached several ethical duties in authoring the torture memos - including and especially the duty to exercise independent judgment. (For example, a corporation cannot "instruct" its lawyers that it wants to conduct certain operations and to write opinions justifying the legality of these operations - the lawyer must INDEPENDENTLY assess the legality of the corporation's activities. Similarly, gov't lawyers have an EVEN HIGHER duty of independence b/c they work not just for their employer, but also for the America public at large). If the DOJ report is correct (and lawyers who wrote it are careerists who began the investigation long before Obama took office), then it's pretty clear Yoo-hoo acted unethically in a manner that could get him sanction by the bar (though likely he's let his membership lapse for this reason) and very probably illegally. While Boalt doesn't possess the ability to conduct fact-finding about what occurred at the DOJ, I believe the report as written gives DE room to fire him pursuant to Boalt's code of conduct. Insiders (on the faculty) have in fact said that DE has the discretion to do whatever he wants (this was BEFORE the report came out) and that he is essentially trying to avoid a political hot potato. But I don't think violating ethical prohibitions or acting illegally counts as "free speech." This is also very different from McCarthy-ism because there the LAWS THEMSELVES were wrong. Thus, lawbreakers acted in accord with their beliefs (and ultimately accorded with what society came to believe was just). And members of the communist party openly flouted the law - no one tried to say that the law *as it was currently incarnated* supported their position when it blatantly did not. I have great respect for DE and for academic freedom, but this is clearly NOT protected speech in any way, shape, or form - free speech would never be a defense against malpractice and that is what happened here.
I'm sorry, but I stopped reading when you said "Yoo-hoo" - are you serious?
To clarify: Yoo-hoo is how J. Y*o is referred to in links on this blog. (I think it's supposed to be funny but I take no position on the matter).
Secondarily, during the Communist Era people argued that the laws themselves were unconstitutional - but no one would argue that DOJ's ethics code or Boalt's code of conduct are unconstitutional.
One last point: The difference between a brief and a memo. A brief can argue for how the law OUGHT to be - and can stretch and bend precedent to support its point.
A memo is supposed to objectively describe the state of the law as it is. Failing to mention the Steel Seizure cases - arguably THE most important cases about executive power - when you are writing about what the executive can or cannot do (esp. when other branches like congress have ratified treaties that form the backdrop against which you act and have passed implementing legislation in the form of the UCMJ) is blatantly unethical.
Again, given heightened ethical duties for gov't lawyers and THE OCL IN PARTICULAR (the GENERAL COUNSEL of the DOJ) this is egregious misbehavior - so bad that even if it were a brief as opposed to a memo it could get you sanctioned.
OCL = OLC
Okay, fine. Having not made the labels, I didn't realize that was what we called him around here. That or Y*o. That makes it slightly more acceptable, I guess. You can keep saying Yoo-hoo, if I can call this whole controversy the Yoo-brouhaha
Anon,
Here is the issue I see with your argument. Y*o claims that his memo represents the correct view of the law. In order to contradict this we need to show either
(1) That he acted with some kind of intent
OR
(2) That a reasonable person would consider his position completely unreasonable
The issue with (1) is that we would really need a criminal trial to establish that.
The issue with (2) is that academic freedom requires that we allow Y*o to claim whatever he wants, however repugnant.
I'm not saying that something can't be done. And I don't agree with anything Y*o said, but I do think that its important that DE and the university not discipline Y*o if the government and the bar association won't.
The Unversity of Colorado recently provided a nice case study for argument (2).
The problem is that the bar association CAN'T. Why? Likely b/c he lapsed in payments and so he's not an active member.
And whether or not the gov't can sanction him once he's left (aside from criminal prosecution) is something I'd have to look into.
Anyways, you don't necessarily need to take either route. You could (3) show a clear breach of ethical duty that might not rise to the level of criminal conduct (or even malpractice, though I certainly think if you read the memos he is objectively guilty of that).
Under (3) you would need evidence of intent, but with the DOJ findings that won't be hard. They have some "smoking gun" email exchanges - it is pretty bad.
Once the fact finding has been conducted, as a university I think we have an obligation to make our own conclusions. What happens, say, if there were a person who had openly violated the law (such as many dictators in foreign countries) but the gov'ts were too lame to prosecute them? You really think it violates "academic freedom
" to say we won't hire you - you're a war criminal? I am not say Yoo is a war criminal (though he may be) but similarly I think that failure to prosecute should not excuse our turning a blind eye when the evidence is staring us in the face.
I also think that if the current DOJ could legally sanction him, it likely would.
7:25,
The issue is a bit more complicated compared to someone who has clearly violated the law. The problem is that the violation we are alleging is intertwined with his claimed view of executive authority and the acceptability of torture. In such a case I think that it is better for the University to allow a body better suited to determinations of culpability to deal with the issue.
I reitterate my arguments made almost a year ago from this date, on 4/11/2008. The collective community here at Boalt should take steps to censure Y*o, whether such steps would be legal or not. Here is my first argument; a conversation with detractors (mostly made up of the moderators of this site) can be found here: http://boaltalk.blogspot.com/2008/04/academic-freedom-horrible-horrible.html#comments
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.
10:59: What of making him a martyr, though? Do something unjust for a good reason, and people may forget that reason and only see your behavior.
10:59,
And when you prove this breach in court I am sure DE will be happy to oblige.
Until then you are censoring Y*o for a position you do not agree with and find abhorrent. But I would rather protect Y*o's academic freedom, the academic freedom of holocaust deniers and 9/11 deniers than give people like you the power to decide what is acceptable in a University setting. At the end of the day, who gets to decide what ideas and advocacy is just too dangerous or too unethical.
However, if you can prove that Y*o INTENTIONALLY misrepresented the Law, that would be a different story. If you want to prove something like that, go to court.
11:11: A few points
My argument does not consider censuring JY within the legal system. Rather, I think it most appropriate for our community to, independent of a court of law, break contract with JY and, if a court of law subsequently rules that we are at fault for breach, take responsibility for "suffering" the non-loss consequences of having to pay for his early retirement. I don't have enough faith in our criminal judicial system to be interested in the question of whether JY broke criminal law; therefore I am more than willing to act on a question of equity rather than law.
To clarify my reasons for why I believe that JY should be fired: I think what he did was wrong and that it is our responsibility to do something about it, this responsibility established by both social and selfish interests.
To be clear, I agree that Berkeley Law should extend to JY the same academic freedoms as would be extended to Holocaust or 9/11 deniers. However, the act of denying the Holocaust is just not comparable to the act of enabling our government to commit acts of torture without appropriate review, the consequence of such advocacy being real physical suffering of innocent persons. The comparison you make simply does not stand to reason: although denial of the Holocaust may cause emotional suffering on persons who believe differently, torture of persons not only causes a more severe degree of emotional distress, but also hurts them physically and denies the basic right to not be tortured. Further, it denies us the basic right to live in a world where torture is unacceptable. Yup, those are basic rights. And yes, you agree with me, especially if we were talking about torture inflicted upon your family or self. Because these rights are established by our very human nature, rather than governments, we should feel less bad about acting upon them without needing government intervention.
In what is becoming clear, JY violated these rights through proximately causing torture of innocent person. In violating these rights, JY acted over the line to be drawn for academic freedom. To cut off academic freedoms directly before justifying the acts of JY, then the test which possibly would be established by this precedent becomes simple and clear: do not act precisely in this manner and you won't for these reasons be fired from your job as a highly influential teacher of future generations of law makers in similar positions as that of JY when he advocated torture.
My message is simple: the academic freedoms granted by contract from Berkeley Law, and arguably by the Constitution, should not extend to persons who advocate for torture and who are in a realistic position to turn that advocacy into actual torturous acts, where this advocacy cannot be judged by a court of law. However, even if these academic freedoms do extend by either the Constitution or by contract, we should be willing to act outside of the law in order to cast JY out of our community (as I noted, WITHOUT actual suffering to JY) because he violated a moral standard that we should hold ourselves to: don't advocate for torture while in a position to implement such advocacy unless there is review of such advocacy in a court of law. Although reasonable positions have established that Y*o possibly violated both ethical standards of conduct and his contract with UC Berkeley, and on these counts a court might find Y*o in breach before we fire him, I am just not interested in establishing a legal justification for eliminating him from our community without causing him economic or physical loss. Rather than a court of law, this decision can and should be made by US, we who are relatively more responsible for his acts than average citizens and certainly we who will be impacted by his misconduct if his ideas and method of their advocacy continue to thrive in the new generation.
To all the anons:
My stance was merely that we should not censure until it is proven that he acted illegally. It hasn't, so we shouldn't. As DE points out in his article, the University is clearly unsuited to a guilt/innocence determination on this point. The DOJ and court system is much more appropriate.
The reason this would be McCarthy-esque is because of exactly what you want,5:31/12:03 etc., condemnation before conviction.
Yoo Yoo Yoo. Say it with me. Yoo.
There is no "condemnation before conviction" here. You make it sound as if "lord help us, there's no proof."
The situation is actually pretty clear cut. (1) (A) There's smoking gun evidence of intent - equivalent to BART videos of the shooting. When I say "smoking gun" I mean email exchanges were gov't attorneys are instructed to justify certain specific torture techniques already being used abroad (and then imported to Gitmo); the gov't lawyers complied with this request. It doesn't get much clearer than that.
(1)(B) Also, the law on torture is unambigious. This is not Yoo being "creative" about his interpretations of executive power - the man FAILED TO MENTION THE STEEL SEIZURE CASES in a MEMO written by the OLC - which as the general counsel of the DOJ is the Gold Standard for objectivity. I can't see how anyone could argue he was advancing an arguable interpretation of the law. His acts are basically tantamount to saying "murder is legal" or something else that's a blatant falsehood. And even if that's an exaggeration, gov't lawyers (as has been mentioned many times) are supposed to act objectively, not as advocates. There is NO way to argue that Yoo's interpretations of the law were "objective."
(2)Even if there's no crime, there is still enough evidence to show PROFESSIONAL MISCONDUCT.
(3) Evidence of professional misconduct should be enough to support firing. I don't think it's unreasonable that we ask that people on our staff acted ethically
(4) Lack of criminal or other prosecution is not a good standard when other actors (a) cannot prosecute or (b) wrongfully choose not to. Again, what about the known war criminal scenario.
It frustrates me because I feel like the same taglines about academic freedom are getting thrown around without any nuanced discussion of these ethical breaches.
Also, what if Yoo is civilly liable in that NDCA case? What then? Why should criminal law be the standard? (Esp. when that's NOT clear from the code of conduct.)
Sorry 12:03, still don't buy your argument. Consider a different situation: a law professor in an anti-abortion state who writes a memo (while employed by the state AG) arguing that abortion is and should be legal. Should that professor's university censure and dismiss him? I say no. The same academic freedom that protects the pro-choice professor protects John Y*o.
Your populist rhetoric is dangerous, and is exactly the reason we need academic freedom. We already have criminal courts that exist to make these kinds of decisions. Courts unlike Universities have adequate due process protections and hopefully prevent the whims of the mob from dictating individual guilt.
That's not analogous.
First, abortion is legal federally so to the AG's position is in no way a misrepresentation of the law as it exists. If the AG were to argue abortion WERE illegal, and then fail to mention Roe v. Wade, that might be analogous and I would not support retaining that individual on the faculty - esp. if there is evidence the person's work product was written for gain and at the instruction of higher ups. This is NOT a controversial argument - it's supported by the Model Rules of Professional Conduct as well as DOJ's internal rules (that sadly look like they cannot be enforced after a lawyer doesn't work there, which is why the DOJ urges bar associations to take action. Unfortunately they can't b/c Yoo hasn't paid dues).
(2) If the lawyer acknowledges that abortion IS legal, and then argues that it SHOULD NOT BE that's an entirely different question and IS PROTECTED SPEECH. If Yoo had said "I think the law on torture is wrong and we should change it to allow torture" that WOULD NOT be professional misconduct, though it might be repugnant. But that's not what he did - instead he said TORTURE IS LEGAL.
This is a key difference and it's what makes it ok for Boalt to fire him.
9:12,
You said: "It frustrates me because I feel like the same taglines about academic freedom are getting thrown around without any nuanced discussion of these ethical breaches."
I don't want my University having a nuanced discussion of ethical breaches. Instead, I want a simple bright-line test where the University only dismisses a professor for misconduct in two scenarios
(1) A court of law/professional association determines that the professor has violated a serious law or
(2) The professor has committed misconduct directly towards the University in its role as an employer (sexual harassment against University employees, embezzlement, etc).
A University misconduct board is not the right forum to get into a nuanced discussion of a professor's ethical breaches.
You may not agree with that, and might instead feel that we should do whatever the hell we like. Thankfully, you don't run this University or the Law School.
9:26,
There was a time before Roe v. Wade where abortion was not protected in some states. Think about my question in that context. If a lawyer in one of those states had stated in a Memo that abortion WAS LEGAL, should he have been dismissed. What if he based his argument on some "radical" right to privacy in the U.S. Constitution? Would that lawyer be a visionary or a criminal? For a University to make that determination necessarily infringes on that individuals academic freedom.
You want the University to decide whether a position is tenable or not. It simply is not the right forum to do that in. DE clearly agrees.
Look, the other abortion scenario isn't analogous. Why? The law at the time was unclear. Yes, abortion may have been illegal in the AG's state, in which case s/he could have said (a) it's illegal in my state and (b) I believe there may be a federally protected constitutional right here (and I think abortion should be legal). This is not what Yoo did. He didn't say that (a) law as it stands prohibits torture and (b) he thinks that there is some sort of constitutional right to torture.
More importantly, the law on torture is WAY more clear cut than the law on abortion. Yoo wasn't charged with writing the best argument for abrogating treaties/congressional statutes, he was tasked with objectively surveying the law as it is. He didn't do that.
No, I don't want the University to conclude there is professional misconduct. But, I do think that once the DOJ has ALREADY CONCLUDED (via its report) than professional misconduct occurred, that should be enough for DE.
How likely are the odds that Yoo will be prosecuted? When was the last time you heard of a DOJ lawyer being CRIMINALLY prosecuted for professional misconduct? I don't know of any instances and I think that's for a reason: it's very difficult for the gov't to go after it's own (they may be willing to investigate, but that's where the buck stops). Similarly, it's been shown that he can't be sanctioned by the PA bar. So practically speaking, it ALL of the factual allegations are true, but we can't get a prosecution or other action taken due to the cowardice of other political actors, that means Boalt has to let him stay? I don't think that's a good standard, and I also don't think there is a slippery slope here given the report. I also think that if a civil court finds him liable for proximately causing Jose Padilla's torture, that should be enough.
I continue to be astonished at the lack of any substantive discussion and analysis of Y*o's legal work. The type of conclusory label-appending denunciation that is so routinely employed is an embarrassment to Bolt. Y*o articulated a rationale that is hardly frivolous--and the "steel case" (albeit it did touch and concern Truman's exercise of unitary power) was a very different context than the issues that Y*o deal with. Just for grins, perhaps his detractors can address why the constitutional powers of the commander in chief / executive can be circumscribed by legislation without creating a "separation of powers" encroachment that would distress them in other contexts. And perhaps they could address the legal issue of what "constitutes" legal "torture" under the applicable US statutes, as opposed to an "I know it when I see it" standard. Interestingly, despite many opportunities to do so, Congress has declined to proscribe "waterboarding," notwithstanding its awareness of the controversy. Perhaps a little less intellectual laziness would be in order . . .
the link doesn't work for me
can you repost it?
It was moved, new link is http://www.contracostatimes.com/search/ci_12057646?nclick_check=1.
John Yoo ---Soulja Boy Conspiracy!!!!
Yoo heard it here first!!!
In 2007, beleaguered OLC officials decided that memos were the worst way to persuade US officials & the general public that waterboarding and other enhanced interrogation techniques were a necessary component of our national security interest. Desperate, they turn to a then-unknown Louisiana teen with a Faustian bargain: produce a pop-rap single that endorses our interrogation agenda, and we'll make you a star, kid. The teen accepts, and spends the next week holed up in his bedroom with only a laptop and a bottle of liquid eraser. When he brings the demo to a secret meeting of top administration attorneys, the result is spectacular: Gonzales weeps, Delahunty beams with pride, and David Addington erupts into an awkward dance that, whenlater adapted by the young artist, would become a national sensation. Not only was the damn thing impossible to get out of one's head, but it tackled all the themes the OLC wanted and then some:
1. The young rapper fashioned himself as "Soulja Boy," ensuring that low-rank servicemen would apply the song's message to themselves
2. The song advocates such tactics as the "Super Soak" (read: waterboarding) "Superman" (read: suspension, posture torture) and other torture techniques yet to be declassified and decoded.
3. Finally, as the grand coup, the song features Yoo's name as a central melodic feature of the chorus, going so far as to browbeat the listener with 2-bar chants of his last name. Cleary a devious means to desensitize the average American to his policies.
BELIEVE IT PEOPLE! FIGHT BACK BEFORE YOOOOOOO END UP SUPER SOAKED TOO!!!!
9:26 I really hope you are being sarcastic. There are entire books and law reviews on this topic. I won't bother to summarize because anyone who has done their homework should be familiar with the arguments. An easy read is Kathleen's Clarks "Ethical Issues Raised by the OLC Torture Memorandum."
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