Berkeley law dean (kind of) defends John Yoo
What do you do when a guy high in the running for most hated man in the world teaches at your law school? If you're Christopher Edley Jr., dean of UC Berkeley's Boalt Hall law school, you half-heartedly defend the professor while highlighting your powerlessness to do anything -- as he did last week did for his embattled faculty member John C. Yoo.
Yoo, of course, is the Berkeley law professor best known as the former Bush administration lawyer who authored the infamous "torture memo" of 2003. Besides laying out a legal argument he thought could protect practitioners of almost certainly illegal "enhanced interrogation" methods from prosecution, Yoo exhibited in his writings a stunning disregard for international law and a creepy nonchalance about expanding the president's terrorism-fighting authority. That much Edley denounces, just as the administration did when the public got wind of the memo. Edley's criticism of Yoo's work in the Bush administration isn't surprising.
More intriguing is how Edley approaches the question he set out to answer: Why is Yoo a professor at such a prestigious university when his legal advice to the most powerful man in the world has come under such resounding criticism by his colleagues? This is where Edley's insight sheds some light on the machinations of the great academy; ready why after the jump.
Edley comes closest to defending Yoo's work in the following exceprt, in which the Berkeley dean effectively separates a lawyer's legal analysis from its practical application:
Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.
This is the closest Edley comes to actually mentioning what consequences may have arisen from Yoo's legal advice. Indeed, when read with the rest of the statement, this excerpt makes clear that Edley (and surely other lawyers and academics) approaches the question over Yoo as a matter of scholarly disagreement, not one that may have led to bad policy and injury to an unknown number of detainees.
Then there's this little nugget that sheds light on how bullet-proof a professor's job is after receiving tenure:
As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:
Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]
This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?
So Yoo would have to commit a crime to be fired as University of California professor? No offense to Yoo or anything (and I'm not one to call for his dismissal), but such a fine-print defense by my boss wouldn't inspire a whole lot of self-confidence.
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What a copout. Yoo just told that tin horn GW bush what he wanted to hear. You probably have him for life as he doesn't have enough intestinal fortitude to resign.
John Lay
Posted by: John Lay | April 15, 2008 at 09:54 AM
UC-B won't look so good when their famous law prof is indicted for war crimes. Remember at Nuremberg we prosecuted the enablers and propagandists too.
Posted by: JD | April 15, 2008 at 11:10 AM
"Why is Yoo a professor at such a prestigious university when his legal advice to the most powerful man in the world has come under such resounding criticism by his colleagues?"
I have a related question: Did overexposure to his colleagues at Berkley somehow drive him to consider interrogation practices that otherwise would have been unthinkable?
"UC-B won't look so good when their famous law prof is indicted for war crimes."
Providing legal opinions, as far as I know, isn't yet a war crime. I think implementing them as policy can be.
Posted by: Ken Shultz | April 15, 2008 at 12:19 PM
The Nuremberg trials were held in the shadow of genocide and World War. There are no similarities between the Iraq War and WWII.
The Nuremberg trials were a farce. Not a single Soviet was prosecuted in that trial or any other, although thousands had committed one or more of the four counts the Nazi defendants were accused of. Nuremberg was about vengeance; not justice.
Posted by: Bart | April 15, 2008 at 12:29 PM
My question for John Yoo would be "Do you still stand by the memo you wrote that launched the torture parade?"
Maybe you can't fire him, but maybe if pressure is kept up he'll resign (though he doesn't seem to have much of a conscience, so this is highly unlikely.) Perhaps the best way out is for Yoo to voluntarily do penance, not by being pilloried the way we used to do it in colonial times, but by submitting himself to a public demonstration of the latest waterboarding techiques that were utilized without fear of repercussions following his legal brief for W & Co.
Posted by: Peter Baiter | April 16, 2008 at 12:38 AM
John Yoo chose to use his advocacy position in the most base way, functioning as the legal "mouthpiece" for George W. and his surrogate Dick Cheney. He could, and should, have recognized that his client was actually the President of the United States, who is sworn to "...preserve, protect, and defend the Constitution of the United States."
Yoo is as responsible for the consequences of his advice as are his bosses, and he should be deeply ashamed. Most important for UC-B, however, is that one of their professors exhibited both pathetic scholarship and moral bankrupcy. And now, within the tenure system (which I support) they are stuck with his long-term contract and the stain on UC-B's own prestige as a top-tier academy. Any chance Berkeley could trade Yoo and a load of cash to Regent University for a fourth round draft pick?
Posted by: Martha Page | April 19, 2008 at 08:06 AM