Thursday, August 20, 2009

The Dean to the Left is the One in the Right

Via email to the good people at "Boalt Hall":
To Boalt Hall students, staff and faculty:

Associate Dean Bob Berring has already written to you concerning the disruptions on the first day of classes, Monday August 17th, by a group of approximately 70 people protesting the presence of Professor John Yoo on our faculty. In all likelihood, there will further protests with the purpose of disrupting Professor Yoo’s class, and spillover effects interfering with other classes and activities. Professor Berring will keep you apprised of our efforts to balance our respect for freedom of speech with our insistence that our teaching and other functions go on.

I write separately, however, to address the substance of the protests and to update my Spring 2008 comments on the controversy surrounding Professor Yoo's work in the Bush Administration concerning presidential power, torture, and measures combating the threat of terrorism.

Also, if you don’t want the entire exegesis below, I was interviewed about the protests for three or four minutes on KQED radio: [here]
.
The dean has, of course, gotten it right and I point with pride to his leadership. No doubt, commentators on this thread will disagree with me or with the dean or with both, but what can I say? Those commentators are ignorant, or mistaken, or proceed upon a normative view that departs radically from principles upon which the success of our society depends. Or all three.

You can find DE's statement posed in the comments. Apologies in advance for the piecemeal fashion in which it comes, but %$@-ing Google Blogger only allows 4,000 characters per comment.

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24 Comments:

Blogger Patrick said...


The Torture Memos, Professor Yoo, and Academic Freedom
Statement of Dean Edley
August 20, 2009

While on leave of absence from Berkeley, serving as a Deputy Assistant Attorney General in the Bush Administration, Professor Yoo wrote and contributed to memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our nation’s efforts to combat terrorism. The controversial reasoning and conclusions in these documents have been widely criticized in the academic literature, the media and in protests stretching over the past two years or more. Locally, I have received thousands of communications criticizing Professor’s Yoo’s continuing presence at Berkeley Law. In recent weeks protestors have frequently gone to Professor Yoo’s home and posted signs in his neighborhood. Now, protestors have intentionally disrupted our classes and threatened to continue—not just assembling to voice their views, but attempting to prevent Professor Yoo from teaching, to the detriment of students who have chosen to enroll in his course. Other classrooms are also affected.

As dean I feel obliged to comment. Nonetheless, I speak only for myself in the following remarks, with no expectation that I will completely satisfy anyone.


[continued below]

8/20/2009 1:35 PM  
Blogger Patrick said...

[continued from above]

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while away from the University somehow place him beyond the pale of academic freedom today, when he is back on campus? If this were some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that a still easier case.


[continued below]

8/20/2009 1:36 PM  
Blogger Patrick said...

[continued from above]

Or consider the more contemporary possibility of a pro-choice professor, who wielded power while on leave serving in government, or gained notoriety leading weekend rallies. The professor is attacked at his college, a socially conservative place where the prevailing view is that abortion is murder and active defenders of a woman’s right to choose are complicit in infanticide. In Professor Yoo’s case, additional things are obviously in play. Gravely so, because some of the views he authored while a professor were merely controversial back then; while in government those same views became consequential.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses; this includes most though perhaps not all of his Berkeley Law colleagues. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda—about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law that he finds bothersome or interfering. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn a challenging or even abhorrent idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, or a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda declared available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. The law does not criminalize very immoral act, however, and there is a strong argument that these more direct actors get a “pass” because they relied on the DOJ memoranda. (Even if Rumsfeld though his actions were legal, that didn’t make his choices moral.) Lawyers, on the other hand, should not have blanket immunity for all their advice and actions, no matter what. But it does matter to me that Yoo was an adviser, while President Bush and his national security appointees were the deciders.


[continued below]

8/20/2009 1:39 PM  
Blogger Patrick said...

[continued from above]


What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demanded greater, not reduced, vigilance for constitutional rights and safeguards.

What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach or even a war crime? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here at the University of California is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate. But I will put aside that shield and 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 performance now? Did writing the memoranda, and any related acts, 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.

When the Attorney General releases the results of DOJ’s internal ethics investigation, I and many others will review it carefully and consider whether there are implications for this campus. In all candor, I doubt that there will be. Non-clinical faculty need not be a member of a bar, and Professor Yoo does not teach our courses on Professional Responsibility.


[continued below]

8/20/2009 1:40 PM  
Blogger Patrick said...

[continued from above]

On the other hand, prosecution, followed by conviction and unsuccessful appeal, would be a very different matter. As a board member of the Obama Presidential Transition, I argued that fidelity to the Rule of Law requires investigation of possible criminality by officials in the previous administration, despite the political cost of being attacked for conducting a “witch hunt”. My belief then, and now, is that only in a court of law can we have definitive findings of fact and conclusions of law. We need both. My friend Eric Holder, Attorney General of the United States, should either pursue the matter, or tell us that he believes there was no criminality. We need to know what happened, and not just from journalists. We need to know where the boundaries of lawful conduct are in combating national security threats. We need to know when legal advice and advocacy become criminal.

University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core.

August 19, 2009

8/20/2009 1:40 PM  
Anonymous Anonymous said...

"My friend Eric Holder, Attorney General of the United States, should either pursue the matter, or tell us that he believes there was no criminality. We need to know what happened, and not just from journalists. We need to know where the boundaries of lawful conduct are in combating national security threats. We need to know when legal advice and advocacy become criminal.

University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core."

YEAH!!!! INVESTIGATE! Good comment. Overall, I think this is good for highlighting that the Obama administration bears responsibility in this situation as well.

8/20/2009 1:45 PM  
Anonymous Anonymous said...

This was overdue, but it makes me proud to be a Boaltie. Well written, DE.

8/20/2009 2:00 PM  
Blogger Dan said...

"As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. The law does not criminalize very immoral act, however, and there is a strong argument that these more direct actors get a “pass” because they relied on the DOJ memoranda. (Even if Rumsfeld though his actions were legal, that didn’t make his choices moral.) Lawyers, on the other hand, should not have blanket immunity for all their advice and actions, no matter what. But it does matter to me that Yoo was an adviser, while President Bush and his national security appointees were the deciders."

This is exactly how I feel. I kind of want to hug DE.

8/20/2009 2:16 PM  
Anonymous Anonymous said...

"Non-clinical faculty need not be a member of a bar, and Professor Yoo does not teach our courses on Professional Responsibility."

The implication is that the imposition of professional discipline would not be a sufficient basis for the university to attempt to revoke Yoo's tenure.

8/20/2009 2:17 PM  
Anonymous Anonymous said...

Huge shout out to Patrick for the Johnny Cash reference in the title! This is good gesture by Dean Edley, but not likely to have much effect. Few of the anti-Yoo people care to engage with the issues.

8/20/2009 2:21 PM  
Blogger Dan said...

Have you considered the protesters' argument, shouted angrily at me as I entered a classroom to learn about the very rights they espouse: "This is not business as usual!"

My God, I've been so blind!

8/20/2009 3:02 PM  
Anonymous Anonymous said...

"Overall, I think this is good for highlighting that the Obama administration bears responsibility in this situation as well."

I agree with 1:45.

If the protesters were really concerned with results or solutions, they would be in Washington demanding that the White House take action and investigate. That is where real solutions will come from. Boalt is not the proper place if real change and real accountability is sought.

8/20/2009 6:46 PM  
Anonymous Anonymous said...

Holding 10; Dictum 3.

8/20/2009 7:44 PM  
Anonymous Anonymous said...

The protesters are idiots and likely to turn people away from their side. That said, I'm having a hard time understanding how anyone could be proud of this message from DE. John Yoo is a war criminal. The political system in this country is too sclerotic to try him, but that doesn't make what he did any less of a war crime. He is a blight on our school, he doesn't deserve the First Amendment and Due Process protections that are currently saving his job, and it would be better for us all if he left.

From reading between the lines of DE's message, I think he agrees with most of this. The counterargument seems to be that he's not empowered or competent to make employment decisions based on these premises. I can respect that DE's in a hard place and that this counterargument would be persuasive in ordinary cases.

But this is not an ordinary case. I'm not sure I agree that DE's hands are tied in being able to dismiss Yoo. After all, the preamble to the code says that "faculty may be subjected to disciplinary action under this Code for any type of conduct
which, although not specifically enumerated herein, meets the standard for unacceptable
faculty behavior set forth above." Even so, there are measures short of firing that DE can take to make it clear that Yoo is not welcome here, regardless of whether he is legally entitled to keep his job. DE's message gives Yoo too much legitimacy in claiming that Yoo's criminality is an issue for debate. It too flippantly diminishes the significance of this criminality in claiming that he "does not teach our courses on Professional Responsibility." And it doesn't address an important question- why the hell is John Yoo teaching this class (or any other one) at all?

I don't agree with the protesters (or the Australian videographers) disrupting classes that Yoo is teaching. I also don't agree with him teaching them in the first place. If he is going to keep his job, he should be denounced, shunned, and asked (repeatedly and officially) to leave. Anything less is failing to appreciate the gravity of what he has done (and how much we are all stained by it).

8/20/2009 11:08 PM  
Anonymous Anonymous said...

This question is probably easily answered, but I'll ask it anyway. If Professor Yoo's legal reasoning was wrong, why was it wrong?

8/20/2009 11:24 PM  
Blogger Patrick said...

. . . he doesn't deserve the First Amendment and Due Process protections that are currently saving his job . . . "

Arguably the most revolting thing I have read all year.

8/20/2009 11:30 PM  
Anonymous Anonymous said...

11:24-

In my opinion, I think there have been three main criticisms of the memos:

1) While the memos were ostensibly objective (or should have been), they failed to include the weight of authority against finding the proposed techniques were legal. Many, and quite possibly most, legal authorities would find the techniques to be illegal, but the memos often failed to acknowledge these, instead adopting fairly narrow definitions of what constitutes torture.

2) The memos failed to acknowledge that certain techniques, if done repeatedly, might constitute torture. For example, waterboarding was considered and found to be legal because, the memos reasoned, subjecting a person to waterboarding for a short time would not cause "prolonged mental harm" per the statutory definition. However, it seems fairly obvious that subjecting a person to waterboarding three times a day for a months does, in fact, lead to prolonged mental harm (big surprise... they did this to Abu Zubadaya, and by most accounts he is now a nutcase). There are numerous other examples like this and the contention is that the memos served as fig-leaf authorization for conduct that is almost universally agreed not legal.

3) There was a claim in the memos that the anti-torture statute might be an unconstitutional limitation on the executive's war powers. Non-justiciable, and thus probably open to debate, but I think many would agree that is a radical claim.

The OLC is ostensibly supposed to give objective advice on the legality of certain acts to the executive branch. The argument is that Yoo and Bybee failed in that duty and made slick lawyerly arguments as to why certain conduct was not illegal. The Administration then went hog-wild with the memos. In my opinion, Abu Graib was just the tip of the iceberg.

That being said, I think DE responded exactly as he should have. Academic freedom is an important principle, and the UC administration should not be in the business of punishing behavior the law will not. I also think the protestors have every right to stick it in Berkeley's craw. As students, I suggest you relish the fact that you are witnessing democracy in action from a unique vantage point and quit whining about the noise... the construction is certainly louder. In the meantime, take a class with Yoo and take a critical perspective on his views. And consider the protestors viewpoint as well. Let both of these make you a stronger, more reasoned person, and then go out there and do good.

8/21/2009 12:55 AM  
Anonymous Anonymous said...

12:55, thanks for the well written synopsis. I do disagree with your suggestion to take a class with him. I do not think poorly of my fellow classmates who are taking a class with him. But I would not feel ok taking a class with him. Just like I have friends who hunt. I can celebrate their freedom without wanting to partake in it myself.

I think Yoo is a disgusting excuse of humankind, like so many neocons, and though I realize I'm paying for him whether I take a class with him or not, I do not want to "complete" that relationship by sitting and being taught by him.

Unless he's found guilty of a crime, I think academic freedom must prevail. I also welcome the protesters to campus (but not the room in which he teaches). I do think they are shortsighted because I do not see how UC firing Yoo will accomplish a single worthy goal. He will still not be held legally accountable. And he'll just go get a job at a conservaTTTlawschool.

8/21/2009 7:52 AM  
Anonymous Anonymous said...

Arguably the most revolting thing I have read all year.

I'm not sure why the notion that Yoo doesn't deserve to be protected by First Amendment and Due Process rights is revolting. I'm not saying he shouldn't be protected by these rights; rights work regardless of whether you deserve them. And Yoo has done more than almost anyone I know of to undermine our commitment to rights in this country.

8/21/2009 8:13 AM  
Blogger Patrick said...

12:55 gives a good starting point and captures most of the issues. I would phrase it this way:

1) Defining torture too narrowly: in defining torture, the memos relied too heavily on United States statutes and overlooked (negligently or intentionally) other bodies of law. That oversight created a narrow definition of torture (e.g., organ failure or death) that excluded techniques generally regarded to be torturous (e.g., water-boarding, cold cell, or walling). To the extent the oversight was negligent, it was malpractice. It was criminal to the extent it was intentional.

2) Defining the executive's powers too broadly: in determining how much latitude the President has during emergencies, the memos relied too heavily on a formal view of the constitution, and too heavily on controversial theories of executive power. The memos did not properly treat certain Supreme Court decisions which disfavored a broad view of executive power (e.g., Youngstown v. Sawyer). Again, that treatment was malpractice if negligent and criminal if intentional.

3) Departure from moral and social norms: setting aside arguments from statutory construction and stare decisis, the worldview espoused in the memorandums departs so radically from accepted norms of conduct as to threaten the rule of law. This argument points out that cruelty, as well as unbridled executive discretion (which is also called tyranny), are so corrosive to our legal system that they are impermissible in their own right. While it is neither malpractice nor criminal to gloss over this type of observation, it does seem irresponsible.

4) Abdication of the OLC's duty as advice-giver: The memos (as 12:55 so very correctly observed) impermissibly cross the line from neutral advice to implicit advocacy of a very controversial position. By treating the topic in a manner favorable to the Executive, without addressing the counter-arguments above, the OLC failed its own mission, which is to give neutral and objective advice. Like (3) above, this may not be criminal, but it surely is a tragic and disappointing period in the history of a noble institution.

5) Failure to qualify fringe advice: As 12:55 pointed out, the memos take positions that (regardless of their viability) are surely controversial, fringe, or extreme. They contain a vision of government and executive power that is at best a minority view and at worst extremist. Even assuming that it is in fact the correct view (hey, judicial review was novel at one point in history) the memos should have done better job of acknowledging that they were out on a ledge.

Lastly, it is very important to keep in mind that the memos were written on short notice in response to September 11th, and that many people at the OLC (Yoo included) felt they were doing their duty to the country and genuinely believed in the legal positions they took. I believe history has shown they were mistaken in grave respects, and it is a relief to me that their position has been repudiated. But as a survey of the history of our country shows, the Bush Administration's OLC hardly broke new ground in terms of shitty conduct by our government. Take that FWIW.

8/21/2009 8:25 AM  
Anonymous Anonymous said...

"DE's message gives Yoo too much legitimacy in claiming that Yoo's criminality is an issue for debate."

This is an odd thing to say, 11:08. One of the bedrock principles we learn in our first-year crim law courses is that criminality is not to be ascribed lightly. DE's point is not that "Yoo's criminality is an issue for debate," but that calling him a criminal requires more than a flat assertion. It requires a process that the university is simply not equipped to manage.

For my money, Yoo has committed wrongs for which he should be held legally accountable. But I would be horrified to check my email and find a message from DE stating that Yoo's criminality is beyond question and that the law school would be punishing him by asking him to leave.

8/21/2009 8:30 AM  
Anonymous Anonymous said...

DE's memo sure has quite a few typos.

8/21/2009 8:37 AM  
Blogger Kathleen said...

I don't think taking a class with him is a good idea if you're opposed to his teaching. The more students take his class, the more he'll be asked to teach. The only way to drive him out is for his classes to be so unpopular they are canceled (like NYU and Dr. Thio).

As much as I agree with DE's sentiments, I'm starting to not care about upholding the principle of academic freedom. Firing John Yoo will not destroy the idea of academic freedom, and not firing him will not keep the far right from targeting progressive professors in the future, just like they have in the past. I think unacceptable human behavior is enough for me to meet the standard of "unacceptable faculty behavior." He should be fired, disbarred, and imprisoned along with the rest of the crew, and neither DE nor EH should be waiting for someone else to make the first move.

8/21/2009 11:55 PM  
Anonymous Anonymous said...

What qualifies as "unacceptable human behavior?"

I, for one, am willing to stick with the legal system that is intended to be applied evenly.

Moral standards like "unacceptable human behavior" are not universal and vary from person to person. What is unacceptable to you may be acceptable to me. So whose standard do we use?

Why is that you are willing to impose your notions of morality on Yoo and the rest of the law school?

It is one thing to exercise your moral standards by opting not to take is class, but it is something completely different to ask the school to fire him because you personally take moral issue with that he has done.

If you are that adamant about being at a school where John Yoo isn't on the faculty, you can always transfer.

But please don't impose your morality on others.

8/22/2009 10:50 AM  

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