Strange Indeed

Commenting on John Yoo's tenure at Berkeley, Mark Kleiman remarks: "So, strange as it seems, I’m inclined to think that John Yoo belongs in prison (along with his client) but not to think that in the absence of a conviction he ought to be stripped of tenure."

That strikes me as a little too strange. Either Yoo's legal advice to President George W. Bush -- i.e. that he has under the constitution an unlimited right to, for example, order his subordinates to "crush the testicles of a child" -- falls in that category of things reasonable people can agree to disagree about, or else it amounts to participating in the war crimes of the Bush administration. If the former, then he clearly doesn't belong in prison. But if the latter, then how can he teach law students? The proposition, after all, isn't that Yoo is a guy who knows something about the law and then also commits serious crimes. Rather, the proposition at hand is that what Yoo purports to have been legal advice was, as such, a crime. This seems about on a par with keeping Jack the Ripper on your medical faculty teaching people surgical techniques.

Comments

I suppose it has something to do with "academic freedom." If John Yoo were, for example, a mathematics professor who published secret memos asserting that 1+1=3, apparently the rules are such that those memos shouldn't be allowed to affect his continued status as a professor.

Human rights are one thing; gross intellectual incompetence in an academic setting appears to be quite another.

Posted by James Gary | April 15, 2008 8:41 AM

We tend to look only at the ghastly opinions Yoo wrote without looking at the technical problems with how this opinion was written. Berkely may hide behind academic freedom, but they shouldn't hide from questions about the technical quality of the memo.

http://firedoglake.com/2008/04/03/the-yoo-memo-time-to-stop-crying-and-get-to-work/

Posted by Fr33d0m | April 15, 2008 8:45 AM

You'll find it near impossible to find academics who think stripping tenure is a good idea. Mostly understandable and largely if not completely defensible.

Posted by Tiny Tim | April 15, 2008 8:48 AM

This seems about on a par with keeping Jack the Ripper on your medical faculty teaching people surgical techniques.

Actually, Professor Ripper probably has a stronger case for keeping his post than Professor Yoo. Going around the East End killing women certainly betrays a not-insignificant amount of moral turpitude, but he wasn't doing it ex officio as a medical practicioner, he was doing it in his free time, and it's a bit much for your employer to terminate your tenure because they disapprove of what you do in your own time. (Assuming for the sake of argument that Professor Ripper was at an American university and that no extradition treaty with the UK existed - otherwise he'd presumably be in prison.) If he'd been offering anatomy lectures to aspiring murderers in order to make them more efficient at murdering, then that's closer to the Yoo case.

Posted by ajay | April 15, 2008 8:54 AM

Tenure is an horrific contrivance. What it chiefly produces is the infantilization of academics. "A master is not a man," said Kipling. And that may be largely because of Tenure.

Posted by Jeffrey Davis | April 15, 2008 8:59 AM

If he'd been offering anatomy lectures to aspiring murderers in order to make them more efficient at murdering, then that's closer to the Yoo case.

A better analogy would be a business professor writing papers asserting that any market regulation was bad and insider trading was A-OK. I suspect there are actual tenured libertarian economists who do publish material along these lines.

Posted by James Gary | April 15, 2008 9:00 AM

The whole issue of this administration sanctioning torture was the big issue last week, and the media totally overlooked it in its feeding frenzy on Obama's line about people being frustrated and bitter.

That is one more reason why people are indeed bitter: the Bush administration has consistently flouted law and the Constitution, and the media just plays dead.

If our media were anywhere near being substantive and searching for truth, this whole torture scandal would be a huge story. As it is, the media treats it with a yawn.

So one big takeaway from all of this: we have a severely dysfunctional media in this country. And in a democracy, which depends on people getting good information to make decisions, that is a real problem.

Posted by cm | April 15, 2008 9:04 AM

I don't see much difference between Yoo and Jeffrey Dahmer, the exception being Dahmer got his own hands dirty putting his felonious fantasies into practice. Yoo, like Dahmer, should suffer the same wallop to the head with a barbell and death by intra-cranial bleeding. Likely a similar fate befell many at U.S. torture sites.

Posted by steve duncan | April 15, 2008 9:04 AM

Actually, Professor Ripper probably has a stronger case for keeping his post than Professor Yoo.

Indeed. In fact, in terms of mere competence, Professor Ripper seemed to understand his subject and could therefore impart useful techniques to his students. On the other hand, you don't have to be a Constitutional scholar to appreciate that Yoo is clueless as to the legal principles under which the US government functions. Yoos memo is not merely expressing a legitimate legal opinion, but makes a thoroughly and patently absurd legal argument that would be laughable if we hadn't become accustomed to a government that is in fact not functioning under the legal principles so clearly articulated in the US Constitution.
____________________________________________

Posted by Aris | April 15, 2008 9:04 AM

It seemed to me that the comment was referring to the fact that he beleives he should stand trail for war crimes but until he is convicted in a court of law he should not be stripped of tenure. I thought it was a simple defense of due process.

Posted by Ben | April 15, 2008 9:13 AM

Plus, Jack the Ripper never got caught.

Posted by El Cid | April 15, 2008 9:13 AM

It's hard to remove tenure for the act of providing low quality scholarship, even horrifically low quality scholarship. That may sound silly and unfair, but the process of acquiring tenure is somewhat silly and unfair in the other direction (plenty of very good and highly productive people who have worked hard for many years get the boot because they are perceived at the critical time as being not quite very-good-and-highly-productive enough.)

That is the environment of academics and that is Kleiman's perspective. Given all that, if the legal system decides it has no beef with Yoo, it's really hard for an academic administrator to assert they know better than the courts, and that Yoo really has committed a criminal act and should be dismissed.

What will likely come to pass is that Berkeley, large and highly reputed as it is, will notice the negative fallout of their continued association with Yoo, and will try as hard as they can to find some acceptable (to defenders of the tenure system) way to promote his departure. Money will be involved, and both parties will sign non-disclosure agreements.

Posted by Ben V-L | April 15, 2008 9:13 AM

Fr33d0m,

I was planning to write 'Thanks for that FDL' link, but as it turns out that post seems pretty misleading. The author asserts that Article 17 forbids a captor from asking PWs about anything other than name, rank, service number, and date of birth. It does no such thing. It merely says that that is the only information the PW is bound to give. 'Bound to give only' does not imply 'bound to ask only about'. If the FDL poster were correct, all PW interrogations by any country beyond the so-called 'Big Four' (i.e. those four items of information) would be illegal, and I've never seen that argued by anyone.

That's not to say that the poster's larger point -- i.e. Yoo's very sloppy legal reasoning and citation practices -- is incorrect. I have no doubt that it is correct. But the FDL poster unfortunately commits the same sin in this case.

Posted by Ryan | April 15, 2008 9:16 AM

Look, this is precisely the sort of case that tests an academic institution's commitment to tenure as the central mechanism for maintaining academic freedom.

The argument that Yoo should be stripped on tenure for breaking the law doesn't hold water. It's not like this never happens. It actually happens all the time that tenured academics break the law. Kiddie porn on university computers, killing their wives, you name it. And you know what happens? They get put on some sort of leave, but do not lose tenure. They don't keep tenure because universities love having evil felons on faculty, but because universities--like, I'd hope, other major institutions--are committed to the idea that no gets to decide who's a felon and who's not except a judge and/or jury in a court of law. When these clowns get convicted in courts of law, then they lose tenure.

Now what about Yoo? We all know that guy's never going to see a court room, even though we all think he should. Does that mean we should operate on a principle that says, "Innocent until proven guilty, except in cases where the guilt's really plainly obvious and, for political reasons, the perp's never going to see a trial"? And should we also operate on the principle that says "tenure's really important for academic freedom, shouldn't be stripped for much less than being convicted of a crime. Or, you know, not being convicted of a crime, in cases where it's still really obvious that the perp committed a crime, and we really, really hate the crime."?

No, these are not the principles we should be operating on. Nor are they principles that the best school in fact do operate on. Stripping Yoo of tenure prior to a conviction would be a serious breach of important institutional norms.

Besides, it's not like aren't plenty of other options here. Can Yoo be debarred? (I'm not a lawyer, so I'm only guessing that this might be possible.)

But more to the point, Yoo can just get taken out of the teaching rotation. He can be given shit work to do, until he leaves to take another job somewhere else (which is, of course, exactly what he'd do anyway if he lost tenure). The Berkeley law school would have waste the money to do that, but hey, they're ones who tenured the guy in the first place. They've made their bed, is this is how they should have to lie in it.

Tenure is important. Academic freedom's not a principle to fuck with, and this is a test case for liberals about how serious we are about not fucking with it. Fortunately, there are good options for what to do with Yoo that don't require us to fuck with tenure. He doesn't need to teach. He doesn't (I suspect) need to get a research budget, so if he wants peddle his ideas at various venues, he has to do it on his own dime. He can be made a pariah in his own law school. And all of this can happen without stripping his tenure.

Posted by Scott E. | April 15, 2008 9:31 AM

I hope that Mr. Yoo spends many years in prison, but this notion that he should be stripped of his tenure is odd. 1st, the world is full of right wingers who believe that anyone who supports - for example - Castro or the Sandanistas supports criminals and shouldn't be employed as professors. Consider the former Weathermen, lawyers for the Black Panthers, etc. (and that "etc." represents a huge group). Right wingers would like them all fired. 2nd, Mr. Yoo not only hasn't been convicted, he hasn't even been charged.

Be careful what you ask for.

Posted by ostap | April 15, 2008 9:34 AM

BTW I just noticed that the original FDL poster (linked by Fr33d0m above) acknowledged the problem I point out above, near the bottom of her comment thread (comment 156). The larger point remains solid, though.

Posted by Ryan | April 15, 2008 9:37 AM

I remember a senior (tenured) colleague in New Haven telling me that the only way for a tenured Professor to get fired is to screw Mrs. Giamatti in front of a thousand spectators in broad daylight.

Professor Yoo is quite safe.

Posted by gregor | April 15, 2008 9:50 AM

I don't think Berkeley should have Yoo teach first year courses (which are mandatory), and it would be nice if his electives were completely boycotted. Also, if he walked into a room everyone should leave. He can keep his job, fine, but shouldn't be part of the "academic community." Problem might work itself out if they shun him Amish-style.

Posted by David B. | April 15, 2008 10:26 AM

James Gary: There is a large and critical difference between an academic's publication of articles taking an idiosyncratic position and an academic who leaves the academy for a high-level position as a government lawyer and who, in that capacity, writes opinion letters that purport to legitimize criminal acts. The latter kind of writing -- sometimes called 'performative' writing -- is of a very different character because it has immediate, real-woprld consequences. All the more so in this case, ass Yoo worked for the OLC, which renders legal judgments for the Executive Branch, and is supposed to do so with a level of sruple above that of a private-sector hired gun. (That said, a private-sector hired gun who gives a deeply flawed opinion purporting to legitimize criminal acts is at considerable risk as well.) The other critical difference here is that a law school is a professional school not just an academic institution. Law schools have to be accredited, and the accreditation criteria bear on the fitness of the faculty members to teach law. All faculty members of a law schoo, for instance, must be licensed, and licensure carries with it a host of fairly specific ethical obligations as well as a "character and fitness" component.

All that said, the best argument for stripping Yoo of tenure (through, of course, the due process procedures established by Boalt Hall) is the following:

Yoo wrote opinion letters for the Executive Branch of the U.S. government that fail to meet basic professional standards of reasoning and use of authority. Those substandard opinion letters are particularly pernicious because they purport to authorize the government to commit war crimes (under U.S. and international law). Professional incompetence of this sort, where the stakes are extremely grave, makes one unfit to teach law to prospective lawyers, regardless of whether the writing of those opinion letters is iteself a crime.

Posted by Sebastian Dangerfiedl | April 15, 2008 10:29 AM

Every employee of the State of California is required to sign the following oath as a condition of employment:

I do solemnly swear (or affirm) that I will support and defendthe Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

John Yoo, as an employee of the State of California, must have affirmed this oath, in writing, when he was hired by the University. Civil libertarians naturally hate this oath, and it's almost never enforced. But there's a strong case that Yoo deliberately violated this oath in his work at DOJ. I don't think it would be worth it to try to get him fired for breaking the oath, but I wouldn't be surprised if someone starting arguing for this.

Posted by Pesto | April 15, 2008 10:38 AM

I dunno about framing this in terms of academic freedom. He isn't being criticized for holding controversial opinions or by being considered wrong by his peers. If it were simply that, sure it would be violating academic freedom to fire him.

But he was involved in a conspiracy to torture people.

Knowingly.

And in ways that violate ethical guidelines.

By advancing views that have no relationship to accepted norms in his field.

I'm a phd student, and value the prospect of tenure lying out there in the distant future. But tenure should not be an absolute bar for punishing people for gross ethical misconduct in the field in which they teach.

Yoo is not going to be subject to criminal prosecution, so Berkeley can't pass the buck. They either tacitly endorse his behavior by keeping him on their faculty, or they do something about it.

I'm not suggesting that they shouldn't have a formal inquiry that affords him more procedural rights than he did his victims. And sure, have a panel of his peers in the legal community come to the ultimate decision.

Posted by justaguy | April 15, 2008 10:40 AM

"I do solemnly swear (or affirm) that I will support and defendthe Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic"

I had to sign this when I got my gig as a TA. I asked if I would get paid time and a half if I had to defend the constitution of the United States from an enemy attack during the course of my teaching. It was the first in a long line of blank stares that I got from the school bureaucracy.

Posted by justaguy | April 15, 2008 10:51 AM

justaguy,

I signed it, too, for a couple of jobs at UC. There was a recent case in which a grad student instructor at Cal State East Bay (the former Cal State Hayward) was fired for writing the word "nonviolently" on her oath declaration (she's a Quaker). After a public uproar, she got her job back.

I'd personally prefer to see Boalt students harass the hell out of Yoo, to see him quit or lose his job over that, than to have UC itself wade through the bureaucratic process of firing him (at least before a conviction). In any case, I'm sure he's in line for a nice job at Pepperdine or the University of Chicago or any number of GOP think-tanks -- he won't suffer unless he's actually convicted.

Posted by Pesto | April 15, 2008 11:01 AM

Although Yoo is an execrable person, it is a little weird that the response to the President openly avowing that he approved of torture is to ask whether his advisor should still have tenure. Obviously, the congress long ago proved it had no stomach for impeachment, but I do wonder what a guy has to do to get impeached in D.C. anymore. Is the deal sealed so that Bush can now, say, do some hit n run driving for fun? Or is the fear that impeachment will bump up his sympathy totals by one percent, so that he gets a solid 30 percent approval rating in the polls?

There's an old cold war movie classic written by Rod Serling entitled Seven Days in May. It is about a military coup plotted against a liberal president. One of the striking things about it was that the president was so hated for a treaty he signed, the country was so on the verge of revolt, that his Gallup numbers plummeted to 29 percent.

I think Bush reached that level two years ago. The fearfulness of the Dems about this unpopular wreck of a man is indicative of what happens when one party basically concedes an area of governance to the other. The Dems, for many reasons, tacitly conceded foreign policy to the Republicans in the late eighties, probably on the strength of political consultant advice (people polled think that Dems are weak on defense!), and that concession has led to one disaster after the other - Clinton's refusal to change the double sanction policy in the Gulf, the refusal to honestly examine the insane Reagan era forging of terrorist networks in support of fighting the Russians in Afghanistan, the use of foreign policy to bludgeon other nations into following neo-liberal policies which always cycle into economic chaos, the refusal to re-activate old and solid Democratic support for foreign aid when it is most needed, as for instance in Mexico - which should have received a tenth of the money we wasted in Iraq, and will still have to if the U.S. seriously wants to address the immigration problem.

When the President admits to ordering torture, the congress should at the very least censure him. At the most, he should be hauled before the courts and charged with war crimes. And imprisoned.

Posted by roger | April 15, 2008 11:09 AM

A better analogy would be a business professor writing papers asserting that any market regulation was bad and insider trading was A-OK. I suspect there are actual tenured libertarian economists who do publish material along these lines.

No, a better analogy would be a business professor producing legal opinions to actively assist his corporate clients in committing and covering up insider trading in violation of the law. No business school would reasonably be expected to continue to offer tenure to a professor guilty of insider trading and other violations of the securities laws, so I fail to see how a law school is required to continue to offer tenure to a professor guilty of crimes against humanity.

Posted by Stefan | April 15, 2008 11:23 AM

The whole academic freedom defense is wildly beside the point. Yoo isn't really being criticized for what he thinks or teaches, for the quality of his thought. Rather, he is being criticized for his actions -- for knowingly colluding with a criminal conspiracy in a scheme to break the law. If Yoo had assisted Bush and Cheney in drawing up the plans to rob a bank, would we be saying "well, sure, but academic freedom, we can't fire him, he does have tenure...." Of course not. It's laughable. So why can't we fire him for assisting Bush and Cheney in drawing up the plans for the crime of torture?

Posted by Stefan | April 15, 2008 11:28 AM

1st, the world is full of right wingers who believe that anyone who supports - for example - Castro or the Sandanistas supports criminals and shouldn't be employed as professors. Consider the former Weathermen, lawyers for the Black Panthers, etc. (and that "etc." represents a huge group). Right wingers would like them all fired.

If those lawyers for the Black Panthers, etc., actively assisted their clients in committing crimes, say in kidnapping people, of course they should be fired.

We can distinguish between an attorney performing his authorized function as an officer of the court to zealously represent his clients' interests, and an attorney who oversteps the line to actively aid and abet his clients in the commission of their criminal activities.

Posted by Stefan | April 15, 2008 11:34 AM

Every employee of the State of California is required to sign the following oath as a condition of employment

OT, but when I was a TA at Rutgers, I had to sign a similar oath/affirmation. The way it was written you had to cross out "God" if you didn't feel right making it an oath. And I, for one, do not believe it is appropriate for a Jew, except one of the stature of Avraham Avinu (e.g., who did take oaths), to take an oath.

I refused to do so until I got a halachic ruling from my Rabbi as to the appropriateness of crossing out the reference to God (it's ok, she said, since it was in English and not Lashon HaKodesh).

I don't mind having government employees making affirmations to remind them, under penalty of false sworn statement, that they have certain obligations vis-a-vis the government and the people of whom, by whom and for whom is the government. OTOH, it seems rather against the spirit of our secular government to have an oath to God in this regard.

BTW -- how are non-disclosure agreements enforceable? If there is a law that allows for the enforcement of an agreement not to speak, isn't that tantamount to a restriction of free speech?

Posted by DAS | April 15, 2008 11:53 AM

Stefan,

A couple of points. First, trying to distinguish between what an academic thinks and what he does, where the action in question is writing an opinion about his area of expertise and giving it to some people, is not one that stands up. During the Cold War, when pacifist profs lost tenure for being pacifists, the McCarthyites made the exact same arguments: profs weren't being fired for having anti-American ideas, but for doing anti-American actions, e.g., writing or marching in support of disarmament.

And, no, the actions of Cold War pacifists weren't criminal (although that didn't stop people from claiming they were, in order to justify having them fired), so lets talk about the criminal aspect of Yoo.

You say, he is being criticized for his actions -- for knowingly colluding with a criminal conspiracy in a scheme to break the law.

Fine. But university provosts don't get to decide who's committed what crimes. That's what courts do. So when he's convicted of those crimes in a court of law, then it'd be appropriate to strip him of tenure. Until he's been convicted, you simply can't cite his criminal acts as a reason for stripping his tenure. You can do all kinds of other things that would have similar consequences, but you can't strip him of tenure.

Your example is a good test case. You say, No, a better analogy would be a business professor producing legal opinions to actively assist his corporate clients in committing and covering up insider trading in violation of the law. No business school would reasonably be expected to continue to offer tenure to a professor guilty of insider trading and other violations of the securities laws.

Good. Think of a b-school prof who writes some opinions that assist corporate clients commit come kind of fraud. Do we think that prof lose his tenure before a court establishes that his clients committed fraud and that his opinion constituted conspiracy to commit fraud (or whatever)?

I'd hope liberals would agree the answer is no. But regardless of what liberals think, the institutional norms of the better US universities is clear enough. The prof would be out on some kind of leave pending his trial, and if he was convicted, then he'd lose tenure.

Posted by Scott E. | April 15, 2008 12:00 PM

Got. To. Proof-read. Better. Ugh. Sorry.

Posted by Scott E. | April 15, 2008 12:05 PM

Well, I go to the U of MN, who "didn't know" that Robert Delahunty was a torture memo co-author when it hired him.

The law school slipped big this year in the rankings -- maybe hiring torturers wasn't such a good move? Or maybe just bad karma.

Posted by yep | April 15, 2008 12:15 PM

First, trying to distinguish between what an academic thinks and what he does, where the action in question is writing an opinion about his area of expertise and giving it to some people, is not one that stands up. During the Cold War, when pacifist profs lost tenure for being pacifists, the McCarthyites made the exact same arguments: profs weren't being fired for having anti-American ideas, but for doing anti-American actions, e.g., writing or marching in support of disarmament.

Two differences here: (i) Yoo's actions were not his actions, speech or theory as an academic, but his positive actions as a government attorney, and (ii) marching (as you acknowledge) is not in itself a crime, whereas Yoo's actions were by themselves criminal. His memos were positive enabling actions assisting war crimes, with a clear line of authority and a clear sequence of consequences. If during the Cold War a left-wing professor had actively assisted the Soviet Union in torturing prisoners in the Gulag, I think he should have lost his job for that as well.

But university provosts don't get to decide who's committed what crimes. That's what courts do. So when he's convicted of those crimes in a court of law, then it'd be appropriate to strip him of tenure. Until he's been convicted, you simply can't cite his criminal acts as a reason for stripping his tenure. You can do all kinds of other things that would have similar consequences, but you can't strip him of tenure.

Yes, you can. University provosts are not bound by the courts regarding this issue -- they have latitude to fire employees for a range of reasons, and do not have to wait until that person is convicted. There is no "guilty beyond a reasonable doubt" standard for continued employment at UC Berkeley.

Think of a b-school prof who writes some opinions that assist corporate clients commit come kind of fraud. Do we think that prof lose his tenure before a court establishes that his clients committed fraud and that his opinion constituted conspiracy to commit fraud (or whatever)?

Yes, quite possibly. Say we uncovered a memo from the professor advising his clients that said "here's how you can illegally trade on the basis of material non-public information so you don't get caught." He certainly wouldn't keep his job if that came to light, even in the absence of a conviction. How could any b-school reasonably expect him to teach business when it was clear that he was such a flagrant lawbreaker?

Again, employers are not bound to the same rigorous standards as courts are. A university has a different mission than a courtroom does, and hence is allowed to weigh factors -- including the damage to its reputation by continuing to employ an open and notorious war criminal -- that would be irrelevant in a criminal trial.

Posted by Stefan | April 15, 2008 12:37 PM

Pesto: University of Chicago would never hire him. The law school is not overbearingly conservative (ask Obama) -- and nor is the rest of the university except the Econ dept, and even then...

More apropos... I just saw John Yoo in a building on Berkeley campus a couple days ago, getting on an elevator with some weaselly and starstruck-looking Republicans. It took all of my self-control not to let fly every curse I could think of, and kick him in the balls. Really, I want to waterboard that asshole repeatedly. Feed him to dogs.

Posted by CG | April 15, 2008 1:01 PM

CG -- fair point on U of C Law. Although Richard Posner, who's written about supporting legalized torture, does still teach there, right?

On Yoo -- Boalt certainly doesn't need any more bad publicity, what with the rapist Dean they had to dump a few years ago. My guess is that nothing will happen until (a) a conviction, or (b) the students make Yoo's presence a big problem for the Dean, for the Chancellor, and for UC in general.

Posted by Pesto | April 15, 2008 1:08 PM

Stefan,

You say:

University provosts are not bound by the courts regarding this issue -- they have latitude to fire employees for a range of reasons, and do not have to wait until that person is convicted. There is no "guilty beyond a reasonable doubt" standard for continued employment at UC Berkeley.

There are two points here. Let me take the second one first. The argument under consideration--which I assume you endorse--is that Yoo can lose his tenure because he's committed a crime. Notice that this argument implicitly assumes that profs shouldn't lose their tenure just for advocating evil views or even doing evil things. Why? Well, the key to the argument seems to be that profs can lose their tenure only when they've actually committed crimes. (If you believed in the looser standards for when you can fire a tenured prof, why bother arguing that actual criminal action is important in the Yoo case?)

So, it seems to me, the argument you're suggesting actually does imply a "not committing crimes" standard for continued tenured employment at UC Berkeley. If that's not the implication of the argument, why bother making a big deal about the criminality of Yoo actions, as opposed to their manifest evilness?

But this brings us back to your first point--that "universities are not bound by the courts" on the issue of who they hire and fire. As a general point, that's certainly true.

However. Universities are bound by courts in precisely those cases where the reasons they cite as basis for firing profs are the profs' criminal actions. Not bad or evil actions, but criminal actions. Here's why universities are bound by the courts in those cases. Only the courts get to decide whose actions are criminal. Universities do not get to decide this.

The is the crux right here. The law is a civic institution that has, built right into it, a very specific account of who has what sorts of authority in connection with it. One of those authorities is the authority to determine who has and has not broken the law. It's built into the law that the courts, and only the courts, have that particular authority. It's built into the law that university provosts' offices don't have that authority. You might think this is pedantic, but it's really just a straightforward understanding of what the law is and a literal understanding of who has what authority in connection with it.

I suspect at this point, there's the temptation to fall back onto the idea that, as you say, "employers are not bound to the same rigorous standards as courts are." But pulling out this claim at this point in the argument is tantamount either to:

(1) Denying that the courts are--literally--the only authority that can decide who is and is not a criminal;

Or (2) giving up the original argument that the actual criminal activity should be the basis for stripping Yoo of tenure. It's tantamount to falling back to the looser position, according to which profs can lose tenure, not for being criminals, but for advocating evil views and doing evil things. But if that's what the argument is ultimately going to be, why bother talking about the criminal activity in the first place?

Posted by Scott E. | April 15, 2008 1:22 PM

Assuming you couldn't have both, would you rather live in a society where people were appalled by the idea of a professor losing his job for his ideas, or appalled by the idea that the government could torture people with impunity?

Posted by Jim Naureckas | April 15, 2008 1:42 PM

Yoo's -- and UC Berkeley School of Law's Dean Christopher Edley's -- position on Yoo's torture memorandums viz. his academic tenure and role as a teacher of law students, boils down to an assertion that Yoo's actions in providing an argument (that a basis for torture exists in American law) were simply that of an attorney providing legal analysis as a basis for action by a client, a common service performed by attorneys on a daily basis.

If Yoo had been providing a range of options in his analysis to the Bush administration, this notion might be true. It isn't. As Glenn Greewald noted,

Yoo's defense that he was merely offering legal opinions, not making any policy decisions, is absurd, since, as he surely knew at the time, the purpose of those opinions was to enable and legally authorize savage and illegal acts.

And this is precisely what Yoo, and even Dean Edley, ignores in claiming Yoo was simply 'doing his job' as an attorney, and that are the ethical and moral dimensions of Yoo's acts.

Yoo was 'following orders' -- which amounted to, Yeah; John-boy, we [primarily, the President and Vice President] don't care about that international law stuff; we want our boys to use 'extreme methods'. And we need some legal arguments that'll back us up -- at least force any legal objections to torture in front of the Supreme Court. We got it packed with enough of our own people to find in our favor.

German jurists who helped to shape the Nuremberg Laws may have been convinced that certain ideas about Jews, a Judeo-Bolshivek conspiracy to destroy the 'purity' of the Volk, and the German state, were facts. Their opinions made legal the disenfranchising, segregation and extortion of Germany's Jews -- and the attorneys who participated in writing them knew that their opinions would beome policy; that they would affect actual human beings.

The nazis believed their ideology regarding the Jews was based in absolute fact. The 1935 Nuremberg Laws were, then, logical and rational responses to what they believed was a factual threat -- just as Bush, Cheney, Rumsfeld, Rice, and others believed that Bush should, as part of his Executive Authority, be able to order torture as a response to the threat to the security of the United States and its interests.

Yoo saw the same perceived threat; he shares the same assumptions and ideology as his former bosses, and was happy to provide them what they asked for. From their perspective, his legal opinions were rational, logical, and factually-based.

Unfortunately, I agree that Yoo will probably remain at Boalt as long as he finds it agreeable -- and here I also stand with others who suggest: Send the Son Of A Bitch To Coventry.

Posted by Jemand von Niemand | April 15, 2008 1:48 PM

Jim N,

Well, we can have both, so why assume we can't?

Posted by Scott E. | April 15, 2008 1:52 PM

I meant "assuming for the sake of argument." You know, like the game Druthers.

Posted by Jim Naureckas | April 15, 2008 2:27 PM

Since I've got tenure at a public university myself, I'm an interested party. Bottom line: it's hard to fire someone with tenure and that's a good thing. I'm not eager to legitimize firings over what are arguably political differences--even though I agree with those who think John Yoo advocates criminal actions by the government!

Since it's hard to fire people with tenure, and since most assistant professors get tenure (the sweepstakes part is finding a tenure-track slot to begin with), what's really important is the hiring process. And I find it funny that no one (that I know of) has looked into the circumstances of Yoo's hiring (and winning tenure) at Boalt. How in the world could this shameless opportunist and intellectual mediocrity (at best) have been awarded such a coveted faculty slot? Do you realize how many people superior in every way would have given bodily organs for that job? Tells you a lot about US universities, doesn't it? Most likely, the terribly smart people at Boalt thought, at least in part, that hiring a presidency-worshipping right-wing Asian American was a clever way to score diversity points. Yoo was a twofer: a person of color and a rightist.

Footnote: I knew of Yoo slightly when he was an undergraduate at Harvard, and he was no more impressive (if less consequentially evil) then.

Doug

Posted by Doug | April 15, 2008 2:40 PM

Quoth Scott E.:

"Here's why universities are bound by the courts in those cases [i.e., cases in which universities cite criminal acts as reasons for termination]. Only the courts get to decide whose actions are criminal. Universities do not get to decide this."

Wrong. Only courts get to hand out criminal sanctions. Lots of different kinds of bodies are perfectly capable of determining whether one has committed a crime, for reasons other than imposing the sanctions that the government has prescribed for the commission of criminal acts.

As a pertinent ferinstance: State bar authorities can -- and do -- determine whether lawyers committed acts which are crimes (e.g., embezzling client funds, advising clients to commit crimes) as part of the disciplinary process. State bar authorities are not ousted of jurisdiction to decide whether a lawyer embezzled client funds simply because that conduct violates criminal laws as well as the regulations governing the legal profession. And, even if a lawyer is acquitted of the crime of embezzlement, nothing stops the bar authorities from finding that the lawyer did in fact embezzle client funds and disbarring the lawyer. That's because the attorney-discipline system is a separate system for dealing with the consequences of conduct that in some instances also could subject a lawyer to criminal sanction -- and it operates with a much more lax burden of proof.

This holds turue for employers as well. Berkeley has every right to institute whatever disciplinary proceedings it has to determine whether -- for its pruposes -- John Yoo committed criminal acts. I don't think that they need to show that he committed crimes in order to strip him of tenure, but the commission of war crimes certainly strikes me as a dandy reason to fire a law professor. the university is no more bound by the courts than a state licensing authority.

Posted by Sebastian Dangerfield | April 15, 2008 2:41 PM

Here's why universities are bound by the courts in those cases [i.e., cases in which universities cite criminal acts as reasons for termination]. Only the courts get to decide whose actions are criminal. Universities do not get to decide this.

To back up Sebastian above, the claim that "only the courts get to decide whose actions are criminal" is patently untrue. As he accurately points out, only courts can impose legal penalties, but anyone is otherwise free to decide, to make up their own mind, as to whether those actions are criminal. Universities similarly get to decide what actions are criminal in the context of their hiring and firing decisions. What they can't do is fine or jail someone, but no one is asking UC Berkeley to do that.

Take OJ Simpson -- can I not decide that his actions were criminal? If (use your imagination here) OJ Simpson had tenure at Berkeley, would we say "hey, the courts never judged him guilty, so we have to keep employing this obvious murderer"? Again, of course not.

Posted by Stefan | April 15, 2008 2:54 PM

Only courts get to hand out criminal sanctions.

Moreover, plenty of other bodies and self-regulatory organizations get to hand out sanctions -- fines, suspension, expulsion, loss of license, shunning, etc. -- that fall short of criminal sanctions.

Posted by Stefan | April 15, 2008 3:31 PM

If (use your imagination here) OJ Simpson had tenure at Berkeley...

While I agree with this fantasy-Simpson-as-tenured-professor argument, (that we can't say, " 'hey, the courts never judged him guilty, so we have to keep employing this obvious murderer' ") might apply to the fantasy-Simpson, but not with Yoo.

Yoo provided a legal opinion, as a backstop for the commission of specific acts by others (acts made illegal because of their particularly cruel effects; acts which in criminal law would be considered "special circumstances"), and which would allow them to claim the acts were legal because the Executive authority in government authorized them.

How Yoo came to do that, why he would offer up such ideas knowing they would be made policy and what the end results would be, when those opinions run counter to both international law and commonly-assumed moral behavior ... all this springs directly from Yoo's occupation as both an attorney, and applies directly to his role as a person hired to teach the law to others.

To question whether Yoo is fit to act as a teacher of law under those circumstances is correct -- because any crimes he may have committed were done while acting in his capacity as an attorney. That goes directly to fitness, to probity, and common-sense questions of his general morality.

My opinion: Yoo has displayed a moral ambiguity making him not fit to teach law to others, and borders on degeneracy. The Chancellors of the UC system should ask him to resign voluntarily.

Posted by Jemand von Niemand | April 15, 2008 3:44 PM

Sebastian,

Good. We're agreed on what the crux of the issue is.

Now, since I'm not a lawyer, I'm only guessing here, but it seems important when you say:

State bar authorities are not ousted of jurisdiction to decide whether a lawyer embezzled client funds simply because that conduct violates criminal laws as well as the regulations governing the legal profession.

In other words, state bar authorities have the, uh, authority to decide when a lawyer's conduct violates regulations governing the legal profession. Bar authorities have their own set of rules. As you say, it's a separate system. And that's what gives them the authority to debar someone for breaking those rules. You want to be in their club? You have to follow their rules. Fair enough.

Now, just because a lot of those rules overlap with criminal law doesn't mean the professional associations rules are the law. The bar association's rules might even be stated by saying "You, lawyers, are bound by criminal law, and if we think you've broken that law, we'll debar you." But the point at issue is where the bar authority gets its authority. And it gets its authority from having it's own set of rules (including rules about determining who's in violation of the rules), which it can enforce as it sees fit.

(It's worth repeating at this point that I don't see why the best option isn't to debar Yoo--precisely because a bar association would have the authority to determine whether his actions constitute a debarring offense.)

But academia is not the legal profession. In fact, it's not even a profession in as robust a sense as the legal profession is. In particular, it doesn't really have any body with an authority analogous to a state bar authority. Once a prof has tenure, it's not, unlike having a license to practice law, contingent on adherence to any set of professional ethics or regulations. It's not contingent on any set of rules a university has the authority to determine. Those rules just don't exist for academics. That's why--and this happens all the time--criminal profs are put on leave (not stripped of tenure), until a court determines that they're criminals.

(Obviously, profs' jobs depend on them fulfilling their contracts. They can't just decide to blow off all their teaching because they feel like it. But that's a different issue.)

Where does this leave us? You say:

This holds true for employers as well. Berkeley has every right to institute whatever disciplinary proceedings it has to determine whether -- for its purposes -- John Yoo committed criminal acts.

I'm not sure if it does hold for other employers. The question is, in the absence of any set of professional regulations analogous to the ones lawyers (and doctors, and engineers, etc) have, does an employer have the right to fire an employee for criminal conduct--even if the employee is never convicted of a crime?

To be sure, an employer (within certain constraints) can determine whether or not I've committed a firing offense, and so they can fire me for whatever reason. And the firing offense can be something that looks awfully like a crime I could be convicted for, but that's neither here not there. My employer determines that I've committed a firing offense, not that I've broken the law.

Normally, that's exactly what happens. But we're arguing about stripping a prof's tenure, and the whole basis of the argument seems to be that it's justified only if the prof's committed a crime.

If you want to argue that schools should be able to strip a prof of tenure for activities that the provost thinks look awfully criminal, fine. But that's a different argument.

Posted by Scott E. | April 15, 2008 3:53 PM

The question is, in the absence of any set of professional regulations analogous to the ones lawyers (and doctors, and engineers, etc) have, does an employer have the right to fire an employee for criminal conduct--even if the employee is never convicted of a crime?

I am a lawyer, and the answer is a very simple one: yes. Barring an employment and/or union contract which may contain different terms, and subject to compliance with applicable federal and state anti-discrimination laws, most employees are at-will, which means their employer can fire them for any reason or for no reason.

I can, for example, fire anyone who works for me because I don't like the shirt they're wearing that day, so I can certainly fire them if I believe they've committed a crime without having to wait for a verdict.

Posted by Stefan | April 15, 2008 4:00 PM

But academia is not the legal profession. In fact, it's not even a profession in as robust a sense as the legal profession is.

So?

In particular, it doesn't really have any body with an authority analogous to a state bar authority.

Yes, there is an authority -- the university is its own authority. That is, the university is itself its own authority in deciding whom to hire or fire.

Once a prof has tenure, it's not, unlike having a license to practice law, contingent on adherence to any set of professional ethics or regulations. It's not contingent on any set of rules a university has the authority to determine.

Of course it is contingent. A university can decide on any set of rules it wishes, subject to adherence to applicable anti-discrimanation laws, regarding its employees, including professors. Universities frequently insert clauses into employment contracts with their employees, for example, providing for dismissal in the case of acts involving moral turpitude, or similar language.

Posted by Stefan | April 15, 2008 4:17 PM

To use a more homely example: If I'm a ttenured professor at Berkely, and I grope a student during a class, with ten witnesses seeing the incident and a cell-phone picutre of my hand on the student' crotch, U.C. Berkely can and should fire me on the basis of this evidence of misconduct -- which also happens to be criminal -- without waiting for an indictment (which might never come, since the power to indict is wholly discretionary) and a jury verdict. And the University would be well within its rights to say when doing so, "not only does this conduct violate our rules, but it also is criminal conduct." The fact that the University is not empowered to jail me does not mean that it cannot declare that I've committed a crime.

Posted by Sebastian Dangerfield | April 15, 2008 5:06 PM

And the firing offense can be something that looks awfully like a crime I could be convicted for, but that's neither here not there.

It is in fact here and there. It is manifestly relevant whether misconduct by a professor also amounts to a crime (as in my example immediately above). Criminalization is how a society brands certain conduct as particularly blameworthy. Thus, if a firing offense is also a crime, it is certainly worth pointing out, and that would go a long way toward explaining why stripping tenure (considered a drastic remedy) is an appropriate sanction, as opposed to some lesser discipline.

Posted by Sebastian Dangerfield | April 15, 2008 5:13 PM

Stefan,

Okay, now you've moved to a different argument. If a "university can decide on any set of rules it wishes, subject to adherence to applicable anti-discrimanation laws, regarding its employees, including professors", and can strip tenured profs for breaking those rules, we're not talking about the law any more. We're talking about whatever rules the school decides to set up.

To be sure, those rules can be, if the university likes, "the law, as far as we, the university decide to interpret and apply it." But "the law, as interpreted by some provost" isn't really the actual law, is it?

If you want to argue that Yoo should be stripped of tenure for doing something evil, fine. That's a serious argument. Then we'd be talking about the very function of tenure, and its limits.

But you can't pretend to side-step those (very hard) questions by pointing to criminal behavior as a reason for stripping a prof of tenure, and then turn around and say the prof's bosses--not courts--get to decide, for whatever reason they like, whether the prof's actions constitute criminal behavior.

Posted by Scott E. | April 15, 2008 5:19 PM

Okay, now you've moved to a different argument.

No, pretty much the same one.

If a "university can decide on any set of rules it wishes, subject to adherence to applicable anti-discrimanation laws, regarding its employees, including professors", and can strip tenured profs for breaking those rules, we're not talking about the law any more. We're talking about whatever rules the school decides to set up.

Yes, that's exactly what we've been talking about. We've partially been talking about the law, and partially about whatever rules the school decides to set up. They are separate but partially related matters.

To be sure, those rules can be, if the university likes, "the law, as far as we, the university decide to interpret and apply it." But "the law, as interpreted by some provost" isn't really the actual law, is it?

No, but again no one is saying it is. It doesn't have to be.

If you want to argue that Yoo should be stripped of tenure for doing something evil, fine. That's a serious argument. Then we'd be talking about the very function of tenure, and its limits.

Yes, that's exactly what I've been arguing, that Yoo should be dismissed for doing something evil, i.e. engaging in war crimes. This same evil behavior is also criminal behavior. The university is free to consider both the evil and the illegality in its decision.

But you can't pretend to side-step those (very hard) questions

They're really not that hard.

by pointing to criminal behavior as a reason for stripping a prof of tenure, and then turn around and say the prof's bosses--not courts--get to decide, for whatever reason they like, whether the prof's actions constitute criminal behavior.

Yes, I can. Why can't I, and why can't they? Why shouldn't they be allowed to factor in his criminal behavior in their decision? As Sebastian so ably noted above, "Criminalization is how a society brands certain conduct as particularly blameworthy."

Posted by Stefan | April 15, 2008 6:59 PM

Okay, now you've moved to a different argument.

No, pretty much the same one.

If a "university can decide on any set of rules it wishes, subject to adherence to applicable anti-discrimanation laws, regarding its employees, including professors", and can strip tenured profs for breaking those rules, we're not talking about the law any more. We're talking about whatever rules the school decides to set up.

Yes, that's exactly what we've been talking about. We've partially been talking about the law, and partially about whatever rules the school decides to set up. They are separate but partially related matters.

To be sure, those rules can be, if the university likes, "the law, as far as we, the university decide to interpret and apply it." But "the law, as interpreted by some provost" isn't really the actual law, is it?

No, but again no one is saying it is. It doesn't have to be.

If you want to argue that Yoo should be stripped of tenure for doing something evil, fine. That's a serious argument. Then we'd be talking about the very function of tenure, and its limits.

Yes, that's exactly what I've been arguing, that Yoo should be dismissed for doing something evil, i.e. engaging in war crimes. This same evil behavior is also criminal behavior. The university is free to consider both the evil and the illegality in its decision.

But you can't pretend to side-step those (very hard) questions

They're really not that hard.

by pointing to criminal behavior as a reason for stripping a prof of tenure, and then turn around and say the prof's bosses--not courts--get to decide, for whatever reason they like, whether the prof's actions constitute criminal behavior.

Yes, I can. Why can't I, and why can't they? Why shouldn't they be allowed to factor in his criminal behavior in their decision? As Sebastian so ably noted above, "Criminalization is how a society brands certain conduct as particularly blameworthy."

Posted by Stefan | April 15, 2008 7:00 PM

Here's the question: if John Yoo, in his capacity as a law professor, writes a law review article claiming that the president has the authority to crush a small child's testicles, I can protest that Berkeley should revoke his job on the basis that he's an evil, intellectually inadequate, degenerate pervert hack who is morally unfit to occupy his job (while accepting that he has the academic freedom to write such articles, freedom which will in the end trump my concerns and allow him to keep his job).

But if John Yoo, in his capacity as a US government employee, writes a memo for the purpose of knowingly aiding and abetting a criminal president in actually crushing a small child's testicles in contravention of established law, then somehow the fact that not only is he an evil, intellectually inadequate, degenerate pervert hack who is morally unfit to hold his job, but is also a criminal as well, shouldn't be a factor? Surely his offense is vastly greater in the second instance than in the first, and if so, why is it not a consideration?

Posted by Stefan | April 15, 2008 8:01 PM

Okay, I need to say a little more clearly what I think the focus on criminality and law is about in this argument.

We start with a problem. What to make of the tenure of a prof who advocates politically unpopular views, even politically very unpopular views? (I'll get to the law in a minute, so bear with me for just a second here.) On one hand, we want to create a space for academics where they can consider politically unpopular ideas--even downright evil ones!--without having to self-censor their work for fear of politically-motivated reprisal in their professional lives. But then, on the other hand, we are rightly repulsed by tenure being used to protect the job of a guy who you, me and lots of other people all think looks a lot like a war criminal. That makes us want to revoke his tenure. What to do? Grant that some people see this as a really hard problem.

Here's where the law comes in. You might think it gives a nice way to step around the hard problem. We could solve this problem without opening up the can of worms about what to do with a tenured prof who advocates politically noxious views.

How does the law help here? It gives us a framework for evaluating and determining the commission of bad actions, where that framework is itself insulated from the winds of political opinion. It's not just a framework that everyone in society is supposed to be committed to (although it is that). Crucially for the issue at hand, its application isn't supposed to be subject to the whims of current political opinion. (Obviously, the law is a thoroughly political institution, but the application of particular laws in particular instances is supposed to be free from the idiosyncratic political whims of the day.)

So the law looks like it might give us a way to have our cake and eat it too. It gives us a standard we can appeal to in order to strip Yoo's tenure. And it lets us do that without compromising our own commitment to the idea that academics should be able to advocate unpopular ideas without fear of politically motivated reprisals. I take it that this is the appeal of talking about the law in the Yoo case.

My point--my only real point in this discussion so far--is that if someone wants the law to function in this argument in the way I just described, then they've got go all in. If the point of the law (in this context, for present purposes) is to give us an agreed-upon framework that's free from (immediate, undue, shifting) political influence, then we have to respect the institutional mechanisms that give it that desired character. Institutions like trials, with judges and juries and defense attorneys.

Saying, in this case, that university provosts (or whoever) can decide whether a tenured prof has broken the law completely obviates the have-our-cake-and-eat-it-too feature of appealing to the law. Why? Because it puts the decision to punish or not punish an academic back in a sphere that's totally affected by shifting political winds. It creates a situation where academics are going to need to worry about reprisals for doing or saying the wrong thing.

Let me repeat, my arguments are only directed at someone who wants the law to function in the Yoo case in that have-our-cake-and-eat-it-too way. My point is, it can only have that function in virtue of its ability to shield tenured academics from political whim. But that means keeping the determination of who's a criminal and who's not in the courtroom and out of the provost's office.

Now, look, if you don't care about having your cake and eating it too--if you don't mind saying tenured profs should, at least in some cases, have to worry about the political reprisals for what they advocate, then none of what I'm saying applies to your argument.

Posted by Scott E. | April 15, 2008 8:40 PM

While arguing for tenure being something to retain, let's note how often it gets overthrown when some academic says something the specific college administration doesn't like.

Then the guy gets fired like a shot, tenure or not tenure.

So this argument is bullshit.

Not to mention all the times some academic can't even get on the squad in the first place, because some wealthy college donor or rabble rouser like Dershowitz weighs in and stops the guy from being hired.

It would have been better if Yoo had never been hired in the first place. Obviously Berkeley decided that it was better to hire somebody who was an official in the government, despite his odious associations, for their own money-grubbing reasons.

So fuck 'em when they cite tenure as a reason not to fire him. They're lying - just like Bush and the rest of the scum they're pandering to.

Posted by Richard Steven Hack | April 15, 2008 9:28 PM

What to make of the tenure of a prof who advocates politically unpopular views, even politically very unpopular views?

Ah, I see now why you keep completely missing the point. We're not talking about Yoo's politically unpopular views (well, the rest of us aren't. You may be, but you're having your own personal conversation). We're talking about Yoo's overt criminal actions. I don't care what his views are as a professor. I care about his actions , as a government employee, in subverting the law in order to aid and abet a criminal conspiracy.

To use an example, it's the difference between someone who says husbands should be able to rape their wives, and a husband who says that and then goes ahead and actually rapes his wife. The first, however odious, is protected speech, the second is simply a criminal act.

Now, look, if you don't care about having your cake and eating it too--if you don't mind saying tenured profs should, at least in some cases, have to worry about the political reprisals for what they advocate, then none of what I'm saying applies to your argument.

None of what you're saying applies to my argument, because I'm not talking about any reprisal for what Yoo advocates. I'm talking about reprisal for what Yoo has actually done as a member of a criminal conspiracy.

Here's another example: imagine that the Columbia School of Journalism hired and gave tenure to Prof. Josef Goebbels. Goebbels, of course, never killed anyone, never signed a death warrant. He just produced propaganda that was used by the actual murderers themselves to justify their actions. Would you say that firing Goebbels would send a bad message about tenured profs worrrying about political reprisals for what they advocate? Absurd, of course you wouldn't, nor would anyone else. Yoo, like Goebbels, is also a war criminal, and should be punished not simply for his views but for his membership in a criminal conspiracy.

Posted by Stefan | April 15, 2008 10:02 PM

Scott E writes: "...[academics who have committed crimes] don't keep tenure because universities love having evil felons on faculty, but because universities--like, I'd hope, other major institutions--are committed to the idea that no gets to decide who's a felon and who's not except a judge and/or jury in a court of law. When these clowns get convicted in courts of law, then they lose tenure."

And I agree with him - if tenure can only be revoked if the tenured professor commits a crime, then, in a state governed by the rule of law, revocation should only follow conviction in a criminal court.

But he then goes on to undermine his own argument:

"Now what about Yoo? We all know that guy's never going to see a court room, even though we all think he should. Does that mean we should operate on a principle that says, "Innocent until proven guilty, except in cases where the guilt's really plainly obvious and, for political reasons, the perp's never going to see a trial"?"

In other words, the US is no longer a state governed by the rule of law. Yoo is manifestly guilty, but he will never be convicted because he has powerful friends. In such a case, I think, the argument above no longer applies, and the university can do what it wants.

Posted by ajay | April 16, 2008 5:24 AM

"...[academics who have committed crimes] don't keep tenure because universities love having evil felons on faculty, but because universities--like, I'd hope, other major institutions--are committed to the idea that no gets to decide who's a felon and who's not except a judge and/or jury in a court of law. When these clowns get convicted in courts of law, then they lose tenure."

You keep missing the point. Of course only courts get to decide who's a felon and who's not when it comes to imposing criminal sanctions. No one is proposing that UC Berkeley be allowed to hang, jail or fine John Yoo for his war crimes. But when it comes to other than criminal sanctions, the latitude for deciding is much wider. UC Berkely certainly has the right to decide whether they consider what John Yoo did criminal, whether or not he is ever convicted for his foul crime, just as it could, as per my earlier example, decide that it doesn't want to hire the murderer OJ Simpson even though he's never been convicted.

Now what about Yoo? We all know that guy's never going to see a court room, even though we all think he should. Does that mean we should operate on a principle that says, "Innocent until proven guilty, except in cases where the guilt's really plainly obvious and, for political reasons, the perp's never going to see a trial"?"

Yes, because (and I know this has been hard for you to understand) (i) we're not a court, and are therefore not capable of imposing criminal sanctions and so are not bound by the "innocent until proven guilty" rule and (ii) if, for political reasons, Yoo will never see trial then the rule of law has broken down and we must search for alternative methods to express our disapproval. If I want to fire someone because to me their guilt is plainly obvious, then that's my right as an employer.

Posted by Stefan | April 16, 2008 10:03 AM

I'll offer the further observations below -- in more or less random order -- in an effort to help us stop talking past each other.

(1) A criminal conviction in a court of law (particularly for offenses that are relevant to one's academic duties and general fitness to teach a professional subject), certainly is a valid basis for revoking tenure. Because a criminal conviction involves the application fo a stringent burden of proof not to mention a host of procedural evidentiary rules that are designed to protect the defendant and to prevent false positives (at the price of tolerating many false negatives), a conviction would satisfy the less-demanding evidentiary standards of an employer's disciplinary machinery.

(2) A criminal conviction is not, however, the only possible ground for denying tenure. Shoddy scholarship, bad acts that relate to one's academic endeavors, sexual harassment, and generally displeasing the administration and fellow faculty of a university are all things that can get one the boot. And the procedures for meting out such discipline are nowhere near as formal or protective-of-the-accused as a criminal trial. Nor should they be.

(3) Yoo's situation is a particlalry appealing one for the exercise of employer discipline for a number of reasons:

(a) The case can be made on documentary evidence alone, and that evidence on its face displays such appallingly bad legal analysis as to constitute malpractice. To cite only two unforgivable professional derelictions, Yoo failed even to mention the signal Supreme Court precedent on the subject of Executive power in wartime (Youngstown Sheet & Tube v. Sawyer) and also failed to cite or analyze the Convention Against Torture (oh, and he also completely blew the fact that the Constitution, in terms, grants the Legislative Branch the power to control the terms onwhich enemy personnel are captured). Consequently, even on its own terms -- as a cynical piece of ass-covering intended to provide respectable legal cover for war crimes -- it's hardly up to snuff.

(b) What Yoo's memoranda attempt to legitimate is really quite illegal, under domestic law and under the most basic, binding norms of international law (along with piracy and killing ambassadors, torture is among the only real universal no-nos in international law). And it's illegal because it's also really quite evil.

(4) For a professional school that is designed to train and credential lawyers and judges (particularly one with the prestige that Boalt Hall enjoys), it is certainly fair game to consider all of these points in deciding whether Yoo should continue to teach law and sit on the Boalt faculty. (Having read a number of Yoo's pre-OLC articles, I think they screwed the pooch by granting this clown tenure in the first place, so the situation is a bit addled for the Boalt faculty, but the fact that none of those articles wre performative speech with flesh-and-blood consequences, as the torture memos are, certainly helps.)

(5) Because Yoo's misconduct comes in the form of pieces of writing, done apparently at the behest of certain heavy players in the Bush Administration, taking certain positions on sensitive issues, there is of course a danger that some may perceive (or some may demagogically encourage others to perceive) any discipline meted out by the university as being merely "political" or an affront to that vaunted illusion, "academic freedom." I don't think such perceptions accurate given the fact that what Yoo did went far beyond advocacy. He used his professional skills (apparently meager though they are) and his undeniably important position in the OLC to authorize torture and -- if all worked to plan -- to help immunize those who engage in torture from prosecution. That the memo was to all appearances a pre-scripted setup by Addington and Rumsfeld (and Rumssfeld's lawyers) to tamp down dissent from DoD lawyers makes is (contra Dean Edley) that much worse. Stated otherwise, the very fact that what Yoo did amounts to criminal conduct is what puts his memoranda beyond the pale of free speech and debate. To my mind, that makes it particularly improtant for adminsistrators to stress the criminality of the conduct if they were to discipline Yoo.

(6) Employers in general -- and universities in particular -- do often shy away from labeling misconduct as "criminal" when they discipline someone (smoetimes the best practice is to stay compeltely mum), but that's an abundance of caution induced by fears of defamation lawsuits. As such, it is only a prudential, precautionary measure, not some kind of a priori legal constraint on an employer's ability to say whatever it feels like about why it fired someone (the only limits being, as Stefan has pointed out, the relevant anti-discrimination laws).

Posted by Sebastian Dangerfield | April 16, 2008 11:27 AM

Excellent summary, Mr. Dangerfield.

Posted by Stefan | April 16, 2008 1:27 PM