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In the Matter of Berkeley Law School Professor John Yoo...

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Grasping Reality with Both Hands The Semi-Daily Journal of Economist Brad DeLong: A Fair, Balanced, Reality-Based, and More than Two-Handed Look at the World J. Bradford DeLong, Department of Economics, U.C. Berkeley #3880, Berkeley, CA 94720-3880; 925 708 0467; delong@econ.berkeley.edu. Weblog Home Page Weblog Archives Econ 115: 20th Century Economic History Econ 211: Economic History Seminar Economics Should-Reads Political Economy Should-Reads Politics and Elections Should-Reads Hot on Google Blogsearch Hot on Google Brad DeLong's Egregious Moderation August 23, 2009

In the Matter of Berkeley Law School Professor John Yoo... Berkeley Law School Dean Chris Edley asks: Berkeley Law School Dean Chris Edley: [T]he crucial questions... 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?... Dean Edley believes that this is a complicated question, to which we must never know the answer: the situation, he believes does "not warrant [Yoo's] dismissal or even a potentially chilling inquiry." The harm that would be done to academic freedom, Edley believes, is such that we must never take any steps to find out what the answer to Edley's question is. I, by contrast, believe that we have already found out the answer to Edley's question. I believe that this is a simple question. A believe that this question has a very simple answer. I believe that the answer is "yes." In 2000, John Yoo published an article, "The Imperial Presidency Abroad" http://www.cato.org/events/000712con.html, in which he argued that President William Jefferson Clinton had unconstitutionally exceeded the bounds of his Commander-in-Chief powers: accelerat[ing] disturbing trends in foreign policy that undermine democratic accountability and respect for the rule of law... by placing: American troops... under... non-American... commanders, such as British General Michael Jackson.... [This] threatens that basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, nor do they take an oath to uphold the Constitution...

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In the Matter of Berkeley Law School Professor John Yoo...

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uphold the Constitution... Note that this is a very strange thing to write. In the customary laws of war, the decision whether or not to place soldiers under the tactical, operational, or strategic command of allies is within the appropriate commander's[1] discretion whenever joint operations are underway. Thus the Duke of Wellington as theater commander placed British troops under Dutch command in the person of the Prince of Orange in the Waterloo Campaign. Thus did George Washington as commander-in-chief of the Continental Army place American troops under French command in the persons of the Marquis de Lafayette and the omte de Rochambeau during the Revolutionary War, thus did John Pershing as American field commander place American troops under French command in the person of Marshall Foch during World War I, and thus did Dwight Eisenhower as AEF commander place American troops under British command in the person of Field Marshall Montgomery during World War II. And nobody said "boo." In striking contrast to what he had written thirty months before, on March 14, 2003 John Yoo wrote: in the customary laws of war, the treatment of unlawful belligerents is left to the sovereign's discretion.... [T]he sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these [congressional] statutes to regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign... So we see, on the one hand, that when the President is William Jefferson Clinton, his Commanderin-Chief powers are so crabbed and restricted that Democratic President Clinton exceeded them by instructing American soldiers to obey the orders of the NATO theater commander. And we see, on the other hand, when the President is George W. Bush, his Commander-in-Chief powers are so extensive and unconstrained that Congress's explicit authority to "make rules for the government and regulation of the land and naval forces" can place no restrictions at all on what lawful orders Republican President George W. Bush can give to mistreat, abuse, and torture persons held by the U.S. armed forces. These two Commander-in-Chief powers are very different indeed. To advance as your basic principle of Constitional construction "don't worry: it's OK if you are a Republican" is a breach of professional ethics serious enough to more than pass the bar set by Dean Edley--unless, of course, all legal reasoning is just a crock of manure to mask partisan maneuvering. Now it is plain that John Yoo does not believe both of his 2000 and 2003 statements of the legal extent of the Commander-in-Chief power. Indeed, he believes neither: if he believed the 2000 statement, he would never in his life have written what he wrote in 2003; if he believed the 2003 statement, he would never in his life have put forward what he wrote in 2000. This has a bearing on the duty of the university to ensure and promote academic freedom. As medieval history professor Ernst Kantorowicz said, upon his resignation from the university rather than bow to the Regents' demand that he swear that he would not advocate communism: [I] wish to emphasize the true and fundamental issue at stake: professional and human dignity. http://delong.typepad.com/sdj/2009/08/in-the-matter-of-berkeley-law-school-professor-john-yoo.html

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In the Matter of Berkeley Law School Professor John Yoo...

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There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and to his God. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this University have dared to bully the bearer of this gown into a situation in which--under the pressure of a bewildering economic coercion-‑he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and his responsible sovereignty as a scholar. Academic freedom--like all freedoms--is thus not free: liberty is always paired with responsibility. A professor is freed from coercion by others to shape or constrain or limit what he or she decides to say. In return, a professor takes on a twofold "responsibility to his conscience and to his god": an obligation (a) to think as hard as he or she can, and (b) to then tell the world what he or she thinks. A university in which professors are freed from external constraint and pressure and in turn obey the internal constraint that is their reponsibility to think hard and tell what they believe to be the truth is one in which there is academic freedom. What does a university's obligation to nurture and guard academic freedom entail? Clearly it means that a university has to protect its members by coercion from outsiders. And clearly it means that a university has to protect its members from coercion by insiders--those other professors who do not like where professors' responsibilities to their consciences and gods lead them. But what are a university's obligations with respect to a professor who wants the freedom from coercion but does not accept the responsibility to think hard and to say what those thoughts are? What if a professor uses freedom from coercion and constraint not to tell the world what he thinks, but rather to say at one moment that there is one set of constitutional rules for Democratic Presidents and at another moment that there is a very different set of constitutional rules for Republican Presidents? Is academic freedom vindicated by claiming that the university has no responsibility to censure, no responsibility to correct, no responsibility to discipline, no responsibility to dismiss someone who so violates his direct responsibility to his conscience and to his god? I leave this issue as an exercise for the dean. [1] Note the difference between "commander" on the one hand and "sovereign" on the other. The American President's powers are of the "Chief Executive" class, inherited from the powers of the British King as chief executive of the United Kingdom as its constitution stood in 1776. The British King in 1775 was not the "sovereign" but rather the commander of the army: ever since 1689, sovereignty in the United Kingdom was held by the King-in-Parliament, a very different entity than the King. rated 4.7 by you and 74 others [?] You loved this post (

), you might also like:

john Yoo: as Bad as We All Knew (this site) Thoreau on Marc Ambinder and Company (this site)

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In the Matter of Berkeley Law School Professor John Yoo...

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2 more recommended posts Âť Brad DeLong on August 23, 2009 at 12:43 PM in Berkeley: Teaching, Berkeley: the University, Moral Responsibility, Philosophy: Moral, Politics: Bushisms, Strategy: Grand Strategy, Utter Stupidity | Permalink TrackBack TrackBack URL for this entry: http://www.typepad.com/services/trackback/6a00e551f0800388340120a50e4605970b Listed below are links to weblogs that reference In the Matter of Berkeley Law School Professor John Yoo...:

Comments You can follow this conversation by subscribing to the comment feed for this post. There are discussions of this letter at Balkinization: http://balkin.blogspot.com/2009/08/dean-edley-onprofessor-yoo.html and at Volokh: http://www.volokh.com/posts/1250890333.shtml I've posted comments in both threads, so won't repeat them here. Posted by: Mark Field | August 23, 2009 at 02:33 PM Though I've heard from third party sources that there were rumblings of discontent in U.C. Berkeley over John Yoo's joining its ranks this is the first definite evidence the assertions are correct and certain faculty members are now publicly voicing their displeasure. It's most reassuring that such capable individuals as University Dean Chris Edley counts himself among them. Posted by: Scott Busfield | August 23, 2009 at 02:50 PM I think there does exist a kind of consistency to Yoo's views however. To see it as Yoo, and millions of Republicans do, first you have to make the arrogant assumption that America alone has been selected by god to show the world the way. Then since the Democrats only half heartedly subscribe to this worldview -they are not to be trusted. And of course foreign commanders even les so, they have no right to command god's soldiers. Finally, since our forces are doing god's work, and the opponents are working against god's plan, they cannot by definition do any wrong. Logic alone cannot defeat this viewpoint. Giving up the cherished strong sense of American exceptionalism is a precondition for seeing the light. Posted by: Omega Centauri | August 23, 2009 at 06:59 PM Given that a law school is a professional school with particular standards, it's quite clear Yoo shouldn't have a position there. Unfortunately, my knowledge of academic procedure indicates that the people who should start the procedure to kick him out are the legitimate professors at the *law school*. He's clearly guilty of misfeasance and malfeasance, so he should be kicked out, but the prosecution should be from his department. Posted by: Nathanael Nerode | August 23, 2009 at 07:22 PM Brad, you're making a mistake if you're trying to approach Yoo's case from a scholarly perspective. If Yoo had simply offered these opinions in the academic marketplace of ideas or even the public marketplace of opinions he would have my full backing, no matter how incoherent, inconsistent, or biased they might be. Yoo's transgression stems from the fact that he knowingly and willingly entered a situation in which he had to be isolated from any legal scrutiny of his opinions (including by his direct superior) because he and his principals understood that the opinion his principals asked him to write would never pass muster in any intellectual marketplace, and any opinion that would pass legal muster would never allow his principals to act in the way they had set out to in the first place. As J. Pierpont Morgan put it (according to Robert Heilbroner): "I don't know as I want a lawyer to tell me what I cannot http://delong.typepad.com/sdj/2009/08/in-the-matter-of-berkeley-law-school-professor-john-yoo.html

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Pierpont Morgan put it (according to Robert Heilbroner): "I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do." The fact that Yoo did not stand up to his principals and told them that this he cannot do without compromising his professional ethics is what constitutes Yoo's transgression for which he should lose his tenured position at Boalt Hall. Posted by: ogmb | August 24, 2009 at 03:46 AM "George Washington as commander-in-chief of the Continental Army place American troops under French command in the persons of the Marquis de Lafayette and the Comte de Rochambeau" Lafayette, though, was an American general--he was a mere captain in the armies of France. [Lafayette had not sworn any form of allegiance to the United States of America. He was thus very much in the position of General Michael Jackson--a foreign national bearing allegiance to a foreign prince inserted into the American command structure. And don't get me started on Baron von Steuben...] Posted by: rea | August 24, 2009 at 04:20 AM I've long disagreed with Brad's arguments for stripping John Yoo of tenure, largely because I believe that Yoo's crimes and professional misconduct are irrelevant to his scholarship. That he should be disbarred and hanged does not mean that he should be fired. However, I think Brad finally came up with a good prosecutor's brief. I'm not sure I buy it, because you can seldom prove lack of integrity with a single instance. (And in any case, Brad's two excerpts do not quite contradict each other.) But I have no normative problem with firing academics who mask hackery as scholarship. Posted by: Joe S. | August 24, 2009 at 06:45 AM "Indeed, he believes neither: if he believed the 2000 statement, he would never in his life have written what he wrote in 2003; if he believed the 2003 statement, he would never in his life have put forward what he wrote in 2000." The logic here fails. He can still believe either one of these, though not both. Since the argument requires only that he have put partisan hackery ahead of scholarship, it is not necessary that he believe neither. Since the claim that he necessarily believed neither can be attacked and so detract from the overall argument, the claim should not be made. Posted by: kharris | August 24, 2009 at 07:20 AM Sherman: Did anyone here say that Yoo should be fired without academic due process? Joe S.: Granting tenure doesn't mean the grantee never has and never will offer hackery as scholarship. It means that the grantee's accepted contributions to scholarship have been judged as valuable enough to make any past and future instances of hackery irrelevant. That's where Brad's argument fails, because establishing shoddy scholarship is not, should not, and will not be accepted by the Berkeley Academic Senate as sufficient grounds to revoke tenure. The difference between Yoo's case and the numerous cases where tenured professors have spouted off unqualified opinions in public is that Yoo did not offer his comments in public, where the academic community could correct his mistakes. He did it covertly, and he did it knowingly to facilitate a criminal act. Posted by: ogmb | August 24, 2009 at 08:30 AM 1. Did Yoo engage in professional misconduct? 2. Who makes the determination? (e.g. an outside professional body like the Bar Association; the Courts?; Does the University itself have this discretion?) 3. Is the firing standard located at "illegal" conduct or "unethical" conduct? I'm not familiar with UC Berkeley's employment contracts so I don't even know what kind of discretion the University has. What I do know is that, if Yoo is fired, it is likely that he will find work at Fox News. They don't seem to have any qualms about hiring people with a history of illegal and unethical misconduct (e.g. Oliver North, Karl Rove, Dick Morris, Newt Gingrich, etc, etc, etc).

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Posted by: JP | August 24, 2009 at 09:04 AM OGMB: I don't think that Brad is accusing Yoo of "spouting off unqualified opinions in public." I agree with you that this behavior, although tacky, does not justify revoking tenure. Professors are citizens, and enjoy generic First Amendment rights, including the right to be silly. Brad is accusing Yoo of disguising political hackery as scholarship. Tenure is seldom revoked for this, for several reasons: -Hackery is often presented in non-scholarly venues, such as op-ed pages. I wonder if the academic should identify his professional position, but otherwise this is clearly exercise of a First Amentment right. -Hackery is awfully hard to prove, if you are affording any kind of due process. It is a question of determining a mental state that is difficult to ascertain from overt behavior. Hacks contradict themselves, but so do principled people. Didn't Keynes say something like: "When the facts change, my opinions change. What is your approach, sir?" Hacks present shoddy arguments, but with the possible exception of J. Willard Gibbs, every smart person has gotten shoddy in places. Hacks are allied with political factions, but so are principled people. -Worse yet, hackery alone is probably insufficient; it must be egregious hackery. Everybody is a bit intellectually easier on those with whom they politically agree. It's called "being human." -And of course, academics are no more likely to revoke tenure than lawyers or doctors are likely to revoke licenses. Again, its being human. Posted by: Joe S. | August 24, 2009 at 09:07 AM Does a law school Dean believe that the law is not routinely influenced and manipulated by a "reign of politics?" Wow. And speaking of politics, what is up with the new White House interrogation office, and what lawyer came up with that dandy idea? Posted by: save_the_rustbelt | August 24, 2009 at 09:17 AM Yoo is simply one of the higher profile hacks and scoundrels, but we've come to live in a world of hacks and scoundrels. I'm squinting at 60 and I can't remember when our public intellectual life has been so pernicious. For the life of me I can't understand what's going on. Does Yoo in the privacy of his own mind find comfort in his ideas? Is he proud of the work he advanced? Possibly he sees his work as akin to the work of a public defender appointed to do a death penalty case -- he is merely the mouthpiece of a dangerous man because the our system of justic demands that all men, even the dangerous, should have representation. All presidents crave cover therefore he provided cover. The work, as an intellectual structure, wasn't meant to have a life further than the moment of political expediency. Etc. That is, of course, the definition of a hack and the justification of a scoundrel, but maybe Yoo has other justifications. Posted by: Jeffrey Davis | August 24, 2009 at 10:16 AM JP, you can find the Berkeley Faculty Code of Conduct here: http://www.ucop.edu/acadadv/acadpers/apm/apm015.pdf The short answer to your second question appears to be "Berkeley". The Code provides that "Part II of this Code elaborates standards of professional conduct, derived from general professional consensus about the existence of certain precepts as basic to acceptable faculty behavior. Conduct which departs from these precepts is viewed by faculty as unacceptable because it is inconsistent with the mission of the University. The articulation of types of unacceptable faculty conduct is appropriate both to verify that a consensus about minimally acceptable standards in fact does exist and to give fair notice to all that departures from these minimal standards may give rise to disciplinary proceedings." I take this to mean that the University considers violations of the Code to constitute a harm to the University notwithstanding the fact that it may also violate other codes. That being the case, it has an independent obligation to investigate.

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Posted by: Mark Field | August 24, 2009 at 10:20 AM I'm with ogmb: there may well be an example of gross professional failure in Yoo's writings, and they are relevant to his appointment at Berkeley because he teaches at the law school, a professional school, making professional conduct relevant. But you've misidentified the behavior that would justify an investigation and, possibly, a loss of position. First of all, you don't give a citation for the second quotation from Yoo, though I assume it comes from the 'torture memos' he wrote in official capacity (this matters) while working for the Federal government. But the contradiction between that memo and the cato.org quotation is not academically actionable, I think, because the publication at Cato is not by most standards a scholarly publication. The Cato Institute is a political advocacy group, and its publications therefore are political advocacy. What Yoo says via the Cato Institute is therefore under no circumstances applicable to his tenure at Berkeley, unless it reaches some 'shock-the-conscience' level, which it doesn't However, his writings as an employee of the Federal government are professional behavior, and relevant to his appointment at a professional school. It's not the inconsistency with his other writings that justifies further investigation, moreover, but their basic incompetence as legal writing in the American tradition. I'm not competent to judge this, but I have seen reports that Yoo failed to mention obviously relevant and well-known court decisions that did not support his views, for example. For a lawyer counseling the president--and counseling him specifically on questions of constitutional law--failing to cite the obvious precedents for obviously political reasons can be described as unethical professional misconduct, possibly justifying firing because the Berkeley law school should not have lawyers who are (a) incompetent, or (b) willing to act as though they were incompetent for political reasons in an unethical way. This is a less moral argument than yours, and less abstract, but I think it is more appropriate. It also means that were Yoo a professor of political science, say, he could not be investigated for these statements at all. The price of academic freedom, which you actually describe quite eloquently by evoking the Kantorowicz case, is that the begowned professor is indeed answerable only to her conscience on matters of academic reasoning. We put up with the Ward Churchills and the John Yoos in universities, once they are appointed, because failing to do so opens the door to dismissing others with far less manifestly objectionable views for political reasons. Berkeley's mistake may well have been appointing Prof Yoo in the first place, if his ethical pliability and professional incompetence could have been known. Indeed, it seems rather unlikely that Yoo gained his position at Berkeley merely because of his scholarly competence (when was he appointed?). And in general, scholarly qualifications, such a published writings, are a much smaller part of a law professor's appointment than they are for, say, a political science professor, exactly because a political science professor is thereafter able to say, as a scholar, 'most anything s/he wants. When appointing law professors, in contrast, experience in practicing and writing _as a lawyer_ are important criteria (clerking, court experience, etc.), and such experience (one hopes) is scrutinzed as carefully as the scholarly writings of an Arts and Sciences professor before appointment. Posted by: PQuincy | August 24, 2009 at 10:16 PM Joe S. If Yoo's actions don't qualify as egregious hackery then what would? If unethical or unprofessional conduct is enough to revoke tenure, then Yoo qualifies. If it takes illegal conduct to revoke tenure then the call may be ambiguous, but only because our legal system is less than perfect. Clearly it would be good for UC Berkely to fire the stinking bastard. Clearly it would be good for the country if we locked up the whole cobble, W. and all his enablers. Trials exposing all the dirty details would be cathartic. Justice executed on these misguided and corrupt elite would reestablish our moral standing. Posted by: mike | August 24, 2009 at 10:24 PM

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Since Democrats never really hold power in US legitimately, any military personnel can refuse orders coming from the chain of command when the Democratic president is elected. It is not real Presidency anyways. Posted by: kwork | August 25, 2009 at 12:01 AM "unless it reaches some 'shock-the-conscience' level, which it doesn't" What else would? a ransom demand? Posted by: Jeffrey Davis | August 25, 2009 at 06:00 AM What about the fact that Professor Yoo has blood on this hands? Yoo, the enabler, was the principal conduit for torture and death; as was recently revealed in the new DOJ torture report. I don't see this as an academic issue, this is a crime against humanity and should be prosecuted as such. Posted by: OrganicGeorge | August 25, 2009 at 06:19 AM Brad, I agree that Yoo should be stripped of tenure. But like OMB and PQuincy I think you have over-rationalized the grounds for dismissal. Intellectual inconsistency and bad faith are not the issues. As a Justice Department lawyer, Yoo was in the chain of command that sanctioned the illegal torture of prisoners. His opinion was essential to the commission of a crime. If he had been outside the line of authority, advocating or condoning torture would not have been subject to academic discipline. The intended results of his actions -- and not merely "opinions" -- ought to cause him to lose his position (as well as his law license). Posted by: jcb | August 25, 2009 at 06:38 AM Per Mark Field's first comment, I provided extended remarks on the Edley letter (and his defenders) at Balkinization, and won't repeat them here. There are various ways to attack this issue & I appreciate Brad's take. I surely wouldn't rest on it alone, it is part of the case not the whole, but it underlines that "academic freedom" means something. Dean Edley et. al. provide empty words that in the end demean it, even if in the end you oppose stripping Yoo of tenure. Posted by: Joe | August 25, 2009 at 06:45 AM I like the essay, Brad, and I'm proud of you for writing it. But I think your brief may be too narrow. Is it the case that the law school, or berkeley as a whole, has only the right to look at intellectual crimes commmitted in office in determining whether a professor is guilty of some kind of moral turpitude? Its hard to believe that in a world where "informed consent" and Human Subjects Review boards are necessary for the smallest social science experiment that a professor or authority figure can get away with proposing, fomenting, or excusing behavior in his students or his superiors and co-workers that is so grossly inhumane and immoral. At the very least there should be a full airing of the charges and Yoo should be forced to defend his stances publicly. Still, I like your restrained "gotcha." Partisan hackery like Yoo's may be considered de rigeur in the Republican Party but it should be considered utterly antithetical to the proper running of an academic institution. aimai Posted by: aimai | August 25, 2009 at 06:53 AM I like the idea of IOKIYAR as a breach of professional ethics. One question: If President Obama were still a professional of Constitutional law, would his vote in favor of FISA also have been a breach of professional ethics? Or it it your view that granting retroactive immunity to the telcos for multiple felonies committed during the warrantless surveillance program is within Constitutional bounds? Posted by: lambert strether | August 25, 2009 at 07:22 AM "...a breach of professional ethics serious enough to more than pass the bar set by Dean Edley--unless, of course, all legal reasoning is just a crock of manure to mask partisan maneuvering." http://delong.typepad.com/sdj/2009/08/in-the-matter-of-berkeley-law-school-professor-john-yoo.html

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legal reasoning is just a crock of manure to mask partisan maneuvering." While SOME legal reasoning attempts to apply principles to attain results which meet the "categorical imperative" standard of justice, I now believe that your harsh characterization of "legal reasoning" is predominantly correct. If further examples are desired beyond the opinions of Mr. Yoo, look at the Supreme Court's selection of his boss. Posted by: mistah charley, ph.d. | August 25, 2009 at 08:03 AM Mike, You and I and Brad all believe that John Yoo is an unprincipled hack. That does not mean that we can prove it using legal process. States of mind (and hackery is nothing but a state of mind) can be very difficult to prove in court. Inconsistencies are not enough--anybody who writes or speaks to a public for a while is guaranteed to be inconsistent upon occasion (except J. Willard Gibbs.) Ditto for intellectual slovenliness or bias. And you cannot name a position so crazy that somebody will not believe it in good faith. Posted by: Joe S. | August 25, 2009 at 08:19 AM So, what is John Yoo's teaching schedule? Is he teaching any course required for graduation where he is the only instructor (at least within one graduating class cycle)? If so, what happens to students who refuse to take classes from a torturer? Do they fail to graduate? Cranky Posted by: Cranky Observer | August 25, 2009 at 08:49 AM As all reasonable persons who have become informed on the torture regime in the last administration know, Yoo should be jailed for war crimes--his legal rationalizations for highly illegal behavior in the CIA as directed by the OVP in full knowledge of the the NSC principals (P, VP, SecDef, AG) are clear acts of consipiracy to torture. But given that the wheels of justice are proving to be gummed up beyond reason, UCBerkeley should in the meantime banish him from the university, and his law colleagues should banish him from the bar forthwith. He is a cancer that will spread if not excised, and will irreparably damage the university and the legal profession. How? is a question of tactics. May I suggest that UCBerkeley alumni simply stop contributing money to the university until he is dismissed? Organizing such a boycott should be straightforward enough. If such a movement is already afoot (and I'm unaware of it, not being a UCBerkeley alumnus), perhaps a reader can post info here to give it a boost from alumni readers of Professor DeLong's blog (for which we are all indebted). Posted by: Robert Ash | August 25, 2009 at 08:56 AM Mark, thanks for reference. Based on my reading, the Code of Conduct only seems to touch tangentially on Yoo's situation. Most of the Code of Conduct relates to professional obligations during tenure at UC Berkeley -- it is largely silent on actions engaged in before hiring. Page 9 states that "commission of a criminal act" and "conviction in a court of law" can serve as grounds for firing. Maybe that will come into play eventually and make this whole discussion moot (doubtful, but possible). Part II, I don't think would have application because of the "fair notice" provision (i.e. the statement says effectively: "you will be warned in advance of actions that could result in suspension, or termination -- if you continue to engage in those actions you risk suspension or termination"). Given that Yoo's actions proceeded his hiring at Berkeley, "fair notice" wouldn't seem to come into play. The contract itself is what is likely to matter the most. I'm not familiar with employment law in CA; however, minimally I'd expect that Berkeley falls into either an "at-will" status or "for-cause" in retention. I would guess that the university can only remove a tenure track professor "for-cause" -- although the range of options could vary dramatically. If the standard is: "you can only be fired only if you're convicted in a court of law; or if you violate university 'community standards' after receiving 'fair notice'" then I don't see how Yoo's actions can result in his removal. However, I would be surprised if the University doesn't have additional authority with respect to these issues. Personally, I think Yoo should be canned based on his professional misconduct while a member of the Bush http://delong.typepad.com/sdj/2009/08/in-the-matter-of-berkeley-law-school-professor-john-yoo.html

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In the Matter of Berkeley Law School Professor John Yoo...

8/28/09 6:06 PM

Personally, I think Yoo should be canned based on his professional misconduct while a member of the Bush administration (his reading of the law wasn't even in the neighborhood of "good faith" interpretation). Of course, those personal views are secondary to what the law requires. Posted by: JP | August 25, 2009 at 11:52 AM A couple of points, JP. I agree that there's a preliminary question whether the Faculty Code applies to Yoo's conduct while at OLC. Dean Edley assumes that it does, hence the irrelevant paean to academic freedom with which he begins his letter -- as if anyone were calling for Yoo's termination for merely expressing thoughts. I am inclined to think some parts do (don't commit crimes) and some don't (academic freedom doesn't apply to a lawyer). Assuming the principles of academic freedom did apply in full, the Code requires "intellectual honesty" as a necessary part of "academic freedom". Over the last few years, a number of respected professors of Constitutional law have stated on various blogs that they consider Yoo's memos intellectually dishonest. That's the same conclusion I'd draw from my experience as a practicing lawyer writing memos for clients. This is an issue Berkeley is clearly competent to judge, precisely because it would be based on expert testimony and decided by experts. The considerable public evidence on this count, combined with Berkeley's indisputable competence to judge this issue and the language I quoted above regarding independent harm to the university, makes Dean Edley's refusal even to investigate seem disingenuous. And "investigate" is, IMO, what's at issue here. It's possible there are facts, unknown to date, which might exonerate Yoo. For example, someone else might have edited his memo after he finished it and changed it beyond his original (legitimate) wording. That's why an *investigation* is warranted -- Yoo deserves the opportunity to explain the facts, and the university needs to know them before proceeding further. As for "fair notice", your chronology is incorrect. According to Dean Edley's letter, Yoo was originally hired at Berkeley in 1993, received tenure in 1999, and took a leave of absence sometime thereafter to work in the Bush Administration. Thus, he had full notice of the Faculty Code at all relevant times. CA law is generally an "at will" state, but university professors are protected by tenure and therefore limited to termination "for cause". However, "cause" is NOT limited to conviction of a crime, despite Dean Edley's attempt to make it appear so in his letter. I explained this in more detail in my comment at Balkinization (linked in my original post in this thread and Prof. DeLong was kind enough to reprint it with a link on the right hand side of his main page). Posted by: Mark Field | August 25, 2009 at 01:06 PM Surely John Yoo doesn't have tenure? Posted by: Scott Busfield | August 25, 2009 at 01:53 PM Mark, Thanks for the additional references and reasoning. Like many, I'm curious to see how this one goes. We'll see . . . Posted by: JP | August 25, 2009 at 05:56 PM Brad et al., You may find the following posting by Marcy Wheeler at Emptywheel of interest in the context of Professor Yoo. http://emptywheel.firedoglake.com/2009/08/25/was-john-yoo-free-lancing-when-he-approved-the-legalprinciples/ How UCBerkeley can still have him on staff puzzles me. Unless the university has some indispensable Republican benefactors. Which I guess answers it. Posted by: Robert Ash | August 25, 2009 at 09:30 PM couldn't the regents propose a similar oath like the communist oath, where the law facutly swear that treason is and has been illegal. http://delong.typepad.com/sdj/2009/08/in-the-matter-of-berkeley-law-school-professor-john-yoo.html

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In the Matter of Berkeley Law School Professor John Yoo...

8/28/09 6:06 PM

where the law facutly swear that treason is and has been illegal. maybe Yoo would resign in protest. Posted by: jpd | August 26, 2009 at 09:13 AM

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In the Matter of Berkeley Law School Professor John Yoo...  

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