When law classes began on Monday at the University of California, Berkeley, protesters gathered at the law school to call for the firing of John C. Yoo, a tenured professor and the author of Justice Department memos that critics say were used to justify the torture of terrorism suspects.  The dean of the law school, Christopher Edley, has rejected calls for dismissal, saying Professor Yoo, who received tenure in 1999 before taking a leave to work for the Bush administration, is protected as a matter of academic freedom.  Is the Yoo case an instance where academic freedom principles clearly come into play or does it raise other considerations?  Brian Leiter is a professor of law and director of the Center for Law, Philosophy, and Human Values at the University of Chicago.  As a contractual and perhaps constitutional matter, Professor Yoo cannot be fired or penalized for the content of his scholarship and teaching, unless it involves research misconduct or intellectual dishonesty. A faculty member can also be disciplined by the university if convicted by a court of a serious criminal violation. Berkeley’s regulations on this score are typical.  Professor Yoo has not committed research misconduct. He has defended his views about executive power in scholarly journals, as well as in the memoranda he wrote as an attorney for the government. Other scholars have defended similar views. One may think (as I do) such views implausible, badly argued and morally odious, but they do not involve “research misconduct.”  If “research misconduct” or “intellectual dishonesty” were interpreted to cover what he has done then there would be nothing left of academic freedom, since every disagreement on the merits of a position, especially a minority position in the scholarly community, could be turned into a “research misconduct” charge that would lead to disciplinary proceedings and possible termination. (Something like this happened, in part, in the Ward Churchill case.)  Many of those commenting on the Yoo case have, I suspect, an unrealistic picture of constitutional law, as though there were clearly correct and incorrect positions on these issues. Alas, there is not a lot of “law” in American constitutional law, so that we quickly go from “that’s a bad legal argument” to “that’s a morally odious position.” But having what many would deem morally odious views is well within the protection afforded by academic freedom.  The university’s own rules also do not authorize it to investigate allegations of criminal conduct by Professor Yoo. The rule is quite clear about what triggers a university disciplinary proceeding: “Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty.” Requiring “conviction in a court of law” as a prerequisite for university proceedings is a sound policy: universities are not equipped to investigate and prosecute crimes.  Universities cannot subpoena pertinent witnesses (like Donald Rumsfeld) to appear, they do not employ forensic experts, they do not have on hand teams of criminal defense lawyers or prosecutors. John Yoo has earned international moral opprobrium for his views. That has no bearing on his job, or his right to it, at Berkeley.  Kathleen Clark is a professor of law at Washington University in St. Louis. She writes about ethics and national security law, and teaches in the law school’s Congressional and Administrative Law Clinic in Washington, D.C.  While I don’t believe a university should punish a teacher for his ideology or unpopular views, I do believe it’s appropriate for a professional school to consider and evaluate a teacher’s professional conduct in deciding whether to hire, retain or discipline that teacher.  As I’ve written elsewhere (Ethical Issues Raised by the OLC Torture Memorandum, 1 Journal of National Security Law & Policy 455 [2005]), it appears that when John Yoo served as a lawyer in the Justice Department’s Office of Legal Counsel, he violated two of his professional obligations as a lawyer: to be candid in giving legal advice to his client, and to adequately inform his client about the state of the law.  His client was the federal government’s executive branch, and his Aug. 1, 2002 memorandum advising the executive branch that the president can make torture legal despite the federal criminal statute and international treaty prohibiting torture failed to accurately and adequately advise his client about the criminal law and separation of powers.  Professor Yoo should have an opportunity to explain his actions and the choices he made as a lawyer. If, after an investigation, the law school and the university find that he violated his professional obligations when he served as a lawyer in the Justice Department, I believe that it would be appropriate for them to take action against Professor Yoo.  Cary Nelson is a professor of English at the University of Illinois at Urbana-Champaign and national president of the American Association of University Professors. He is the author of the forthcoming, “No University is an Island: Saving Academic Freedom.”  In April 2008 I was returning to my hotel room across the street from the Berkeley campus. The sidewalk was filled with chanting protesters, and a dozen or so people dressed in orange jump suits were writhing on the ground to simulate torture victims at Guantanamo. In the hotel ballroom, Professor John Yoo was speaking to an audience admitted on the basis of an approved list monitored by campus police.  The protesters were demanding that the dean of the Boalt Hall School of Law fire Professor Yoo immediately because of his alleged participation in war crimes. I introduced myself (to the protesters who were standing) as president of the American Association of University Professors and explained to them that Mr. Yoo had to receive due process, that the dean could not act unilaterally. They were happy to adjust their demands and argue instead that appropriate hearings commence immediately.  After Professor Yoo had left, there was a reception for those who had attended the event. I spoke with several groups of faculty and with Berkeley law students both sympathetic and not. Some students vowed they would never take a course with him. Others were mightily offended that his presentation (a response to an earlier speaker) had twice been interrupted by protesters who were then escorted out.  The complex character of the Yoo case has made it exceptionally controversial on campus, but some clarity is possible. A tenured faculty member cannot be dismissed for his political views. One also hears the argument that Professor Yoo has to be held harmless for extramural statements, statements made, moreover, when he was on leave working for the Bush administration.  But extramural statements that bear on a faculty member’s areas of professional competence are subject to review. If you write an article for a newspaper that shows you are ignorant about your academic field you are vulnerable, tenured or not. Of course in this case, the arguments in his memos justifying torture, intellectually irresponsible or not, are not the entire issue. It is their purpose, their use and their effect that may put him at risk. Thus people have argued that the brutal impact of his memos on the lives of real people bear on his moral authority as a faculty member.  Yet had he published his views in essays at a time when no U.S. sponsored torture was taking place, his legal opinions might have been seen as more absurd than sinister. The case is thus inescapably moral and political. Such considerations are clearly fair when deciding whether or not to hire a faculty member in the first place. You have a right not to hire someone whose views you consider reprehensible.  As a tenured faculty member, however, Professor Yoo has a right to full due process. Under A.A.U.P. standards, the dean should call for the faculty to elect an informal committee to recommend whether there is sufficient basis to hold formal hearings. If the informal committee decides affirmatively, then the dean can call for the election of a formal hearing committee, unless a standing hearing committee already exists.  Such a process would concentrate on determining professional competence. Academic freedom does not protect a law professor from, say, clear evidence he or she does not understand the law. The Yoo memos were applications of his professional authority and expertise. They will be debated in legal circles for years.  One might suppose he will never again write something with such wide impact. What is so challenging about the Yoo case is that it raises new grounds for determining what activities bear on defining and establishing professional fitness.  Carlos Villarreal, a lawyer, is the executive director of the National Lawyers Guild San Francisco Bay Area Chapter. He is a political activist and has worked on criminal justice and free speech issues.  John Yoo has written and said a lot of things I vigorously disagree with –- in newspaper columns, academic journals and in other forums where the free exchange of ideas must be protected.  It is not his opinions or political affiliation that I, and many in the National Lawyers Guild, believe should get the attention of the U.C. Berkeley administration. It is his actions in the Justice Department which, in combination with the actions of other powerful officials, led to the torture, humiliating abuse, permanent injury and even death of detainees who were never tried or convicted of anything. To protect his work in the Justice Department under the guise of “academic freedom” is to protect the yelling of “fire” in a crowded theater.  I understand that the university does not have the tools of a criminal court, and because of that, acting on accusations of criminality against professors without a criminal conviction should rarely be pursued.  However, we have not asked the administration to find Professor Yoo guilty of criminal wrongdoing; we have simply asked that it look at the facts readily available in the public record and determine if he has violated the Faculty Code of Conduct. There is ample evidence in the Congressional record, in documents released through Freedom of Information Act requests, and in Professor Yoo’s own statements defending his actions, to proceed.  I will acknowledge that those of us pressuring the university to take action against Professor Yoo must constantly reflect on potential unintended consequences. We do not want to empower a system or a process that tends to target professors with left-of-center viewpoints. We would not want to create a precedent that can be easily abused in the future.  That is a real danger that we should weigh against the enormous benefits to human rights and dignity we would gain by holding the architects of torture accountable. I still believe that those of us who feel strongly about human rights gain more by pushing the university to hold Professor Yoo accountable.  Brad Wendel, a professor at Cornell Law School, teaches legal ethics.  I don’t believe John Yoo ought to be fired, but it is important to be clear on exactly what he is accused of doing wrong.  The strongest legal criticism made of Professor Yoo and other Bush administration lawyers is not based on disagreement over policy or even morality. They were not implementing unjust laws; they were actively circumventing just laws.  The memos purporting to justify the harsh treatment of detainees could do so only by twisting the law beyond all recognition, and doing so in secret so that the flawed legal advice would not be challenged. When the memos were disclosed publicly, virtually no one could be found to defend them on the merits. The Justice Department itself was even forced to take the highly unusual step of withdrawing virtually all of the legal analysis it had issued only months beforehand.  Professor Yoo’s supporters worry that any action taken against him would lead to a chilling effect on legal advice — what sensible person would ever want to be a government lawyer if he or she faced the prospect of being prosecuted for trying to find a lawful way for the President to protect American lives?  But lurking behind this defense is often an unstated premise that the law is so indeterminate that it can be made to say pretty much whatever the client wants it to say.  George W. Bush defended his administration’s actions by appealing to the indeterminacy of law. After the U.S. Supreme Court ruled that American personnel overseas had to comply with Common Article 3 of the Geneva Conventions, which prohibit outrages upon human dignity, Mr. Bush said: “It’s very vague. What does that mean ‘outrages upon human dignity’? That’s a statement that is wide open to interpretation.”  Except that it is not wide open to interpretation. The law significantly narrows the range of permissible interpretation of the term “outrages upon human dignity” — unfortunately, for the Bush Administration, it does so in a way that clearly identifies many so-called enhanced interrogation techniques as a violation of international and domestic law.  Figuring out what the law permits and forbids is what lawyers do. Non-lawyers may think that clever lawyers can manipulate the law without constraint, but lawyers know there is a limit to what the law can be interpreted to mean.  On a wide range of crucial issues, from the application of the Geneva Conventions to the definition of severe pain to the limits of executive power, the Justice Department lawyers were so far outside the mainstream that their “legal advice” had to be considered something other than a good faith effort at ascertaining the limits of the law.  The objection to Professor Yoo’s employment as a law professor is that he gave the President of the United States the equivalent of a law student’s C-minus exam answer instead of careful, impartial legal advice. But this alone is not a sufficient reason to revoke his tenure at Berkeley. Academic freedom does protect faculty members from being fired for making half-baked arguments. As an ethical matter, however, law teachers should make clear to their students that this is an embarrassment to a profession that should pride itself on giving independent, impartial advice to clients.
Should John Yoo, an author of the Bush-era "torture" memos, be protected or dismissed from the Berkeley law faculty?