Yoo and Academic Freedom
Via Marty Lederman, John Yoo’s Dean, Chris Edley, writes a provocative (though unsurprising) letter regarding John Yoo and academic freedom (h/t scribe). I’ve interspersed some comments and questions between the excerpts below.
Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.
As I’ve shared with a number of people in comments before, I had a conversation with the Provost of a prestigious private university recently; we spoke about his efforts to ensure the law faculty included good, but conservative, thinkers. I raised Yoo and it was clear that Yoo has become every Dean’s worst hiring nightmare–the young, controversial, but apparently brilliant academic who goes on to do horrible things in government after he has gotten tenure. This whole question would be different, after all, had Yoo not had tenure before he had written these memos.
That said, I’m disappointed that Edley didn’t say more about my biggest worry: Yoo’s teaching. It’s one thing to keep a controversial scholar on faculty because of academic freedom. It’s one thing for that scholar to (as Edley describes elsewhere in his memo) air unpopular views. It’s another thing to have someone who–more than anyone save David Addington on Bush’s legal staff–assaulted the Constitution, doing real damage in the short and potentially long term.
It’s one thing to guard Yoo’s right to write controversial academic articles. It’s yet another to have him teach future lawyers Constitutional Law.
So I’m curious how Edley measures Yoo’s teaching when he compliments it here? Is Yoo well-liked by students? Challenging? Rigorous? But just as importantly, is he teaching future lawyers to do as he has done, deliver the goods for the client even if doing so fundamentally conflicts with the Constitution? Is Yoo training the next generation of lawyers who will approach the law and the Constitution itself with a utilitarian attitude? Do students like Yoo because he teaches them to be the best sophists they can be? I don’t know the answer, but I’d sure like to.
Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.
My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.
There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.
There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda 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. [my emphasis]
This last bit–which I disagree with–strikes me as the reverse Nuremberg defense. In the same way those who facilitated torture still cling to the inadequate claim that they were just following bad orders, Edley here gives Yoo the excuse that he was just providing advice, that his advice is distanced from the outcome of that advice because someone else ultimately exercises the key moral decision. Furthermore, I think this argument allows Edley to ignore what appears to have gone on here–Yoo appears not to have conducted real analysis, but rather he appears to have delivered shoddy opinions that gave Bush and Rummy and Tenet and Cheney the green light to do what they had decided to do before they sought his advice. Yoo, in a sense, willingly took on the role of decider here, because by providing such utilitarian opinions, he freed Bush and Rummy and Tenet and Cheney of the requirement that they risk their own moral authority to implement plans they claim were correct. Yoo leant them his own moral authority, and in doing so allowed them to escape the moral and legal consequences of their own decisions.
So, yeah, Bush and Rummy and Tenet and Cheney are in the wrong here. But so is Yoo, because he has tried and has thus far succeeded in placing them in a position where all of them can commit moral wrongs without owning those actions.
Ultimately, I think Edley makes the wrong comparison with Yoo’s actions. It’s not a question of whether Yoo’s opinions are worse than a historian denying the holocaust or a professor who, in his own time, marches with Nazis. Rather, the correct comparison seems to be with a doctor–who happens to teach at a university–willfully hurting his patients. Or an engineer–who happens to teach at a university–who willfully builds bridges he knows will collapse.
That comparison may not–probably does not–change the high standards for academic freedom. I tend to believe that before Berkeley could attempt to fire Yoo, he would have to be disbarred, OPR would have had to find he acted improperly when he wrote his opinions on torture and warrantless wiretapping (and, unfortunately, that’s unlikley to happen). But that doesn’t prevent Berkeley from seriously considering whether it is wise to have a man who has violated the ethics of his craft–indeed, challenged the Constitution on which that craft rests–teaching his methods to students who will one day be expected to fulfill the ethics that Yoo has so badly failed to fulfill.
I had the great privilege to have Archibald Cox as a professor in law school. We took him to lunch one time and he told us proud stories of his time as Watergate Prosecutor bringing Nixon to justice.
I wonder how lunch is with Prof. Yoo.
Three Peas in a Pod:
Yoo’s got Tenure for Life, to protect him from his Depraved Indifference to Human Life.
Bybee’s got a Judgeship for Life, to protect him from his Depraved Indifference to Human Life.
I’ll bet they feel smugly comfortable and untouchable, too…
Kind of like Bush feeling smugly protected by his Inherent Powers as the UE – that Yoo and Bybee gave him – from his Depraved Indifference to Human Life.
Article II Inherent Powers, Tenure, Judgeships – Who Needs Morality?
Bybee could be impeached.
There is a process, too, by which lifetime tenure can be revoked, but we’re nowhere near there yet, in terms of process.
I was hoping you’d take this up. I’m disappointed but not surprised by Edley’s conclusions, but I had to grin at his snarkilicious tone ;>
This graf:
immediately followed by this: “Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service” gave me some hope, but I actually think Edley’s right in deciding that — based on what we know right now — Yoo’s tenure is safe. ISTM that disbarment should be a first step.
Btw, did you see this post riffing on your comment from yesterday?
Of course I saw it! Seeing my username in an emptywheel post is like getting a 4 from Meteor Blades ;>
Based on the graph you quoted he could face lossof tenure for abject imcompetence.
To paraphrase: “tenure is not a suicide pact”
There is a great difference between someone being asked, “Is it legal, can you look into it?” or “I want to do something that is illegal, find a way around it so that I can get away with it.”
Wesley Snipes took bad tax advice and claimed he believed it to be legal and sound. A court of law found him not guilty of tax evasion.
Numerous heads of corporations received signed letters from prestigious law firms stating that tax shelters designed by prestigious accounting firms were more than likely to be found by the IRS as acceptable.
These kinds of things are established and accepted in this country.
Why should the presidents advisors not be given the same benefit.
If you can find someone with a professional license and they tell you it’s ok. All you have to do is sound sincere when you claim you believed they were giving you an honest professional opinion.
As egregious as the Yoo memos are I’m just saying this kind of attitude has been in place for a long time.
The problem with your comparison to a doctor would be that the college kids nowdays are following the money. They’re going to want what Yoo is teaching rather than Dr. Albert Schweitzer.
Edley ought to be taken to the freaking woodshed for using the word “decider”. I can respect the protection of academic freedom, First Amendment protection and professorial tenure from him. He should have stopped there, the rest is a bunch of pure rationalistic horseshit. Fuck Yoo, and Edley too.
And what is the “law-declaring” of “…the ineffable boundary between policymaking and law-declaring…”?
“decider” was one of the parts I read as snark. I used to read transcripts/watch hearings of the USCCR whenever possible, just to listen to Mary Frances Berry and Chris Edley.
Besides, if I mentally substitute a progressive with tenure at, say, Regent U (imagination straining mightily), I think Edley’s right, so far. His closing sentence:
That standard has not been met.
has an invisible “yet” at the end, I think.
I read the whole statement as “I, Chris Edley, think Yoo’s fullashit, but the Dean of UC-Berkeley School of Law will defend his right to be fullashit until — “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” — I have just cause to throw his ass out.
Though of course the likelihood of a progressive getting a job–much less tenure–at Regent are approximately nill.
I and many of my friends have seen the requirements for “statements of faith” at such schools. I’m quite certain that, back in my own academic days, I would not have been hireable at a conservative Catholic University, in spite of what (on paper) look like pretty good Catholic ties.
So the Regents don’t have the same kind of problem, really. Heck, I suspect they’re not all that bummed that one of their former students basically admitted to breaking the law in the name of party loyalty and heterosexuality checks.
Not very shocking. Self-serving justification for a bad hiring decision. And Bmaz, that ‘decider’ reference – wtf? Some sort of smoke signal?
An icing of poo on top of a sh*t pie.
Yes, and I think that that is where Edley is being at least disingenuous.
For me, the bottom line is international law, much of the best of which was written by Americans. Yoo has trivialized and ridiculed some of that law. Should he still be teaching? I think that that is more than a fair question, and Dean Edley himself is trivializing to compare it with defences of fringe neo-Nazi marches. There isn’t a logical parallel. Repulsive is one thing, but destroying the law itself is quite another.
It’s not just disingenuous, it’s manipulative in the usual way. Part of his argument is seems that, well, none of this is as bad as the Nazis; it’s all more “ineffable”.
And here is the really dishonest statement:
It might not be a question merely of the content of the opinions, but the intent of writing them. The opinions themselves might not merely be “controversial”, or even shoddy to the point of malpractice (this wasn’t malpractice — it was what the client ordered), but wilfully dishonest. Edley’s argument is polyannish bullshit.
Speaking of Nazis, Dr. Wilhelm Stuckart, an architect of the Nuremberg Laws and convicted war criminal, is dramatized nicely by Colin Firth in “Conspiracy“, a dramatization of the Wansee Conference.
The problem with these examples:
is that they are subjective and, really, not actionable. Remember, the same ACLU that is working day and night to get the torture papers out of the government and into the open, also defended the American Nazi Party when they wanted to march/demonstrate in Skokie, Illinois. Not because they liked Nazis, but because the ACLU, rightly, viewed the First Amendment as a neutral principle which had to be defended for all, regardless of the content of their speech.
Look at it from another perspective – if a blacklisted-by-McCarthy professor (of law, perhaps) was having his tenure attacked because he had stood up in the face of a cascade of anti-communist laws to defend someone, would you go along with the crowd, or recognize his right to speak for and defend the client of his choice?
On the other hand, the Dean has it right when he says:
These are both examples of objective misconduct.
scribe, the Dean didn’t write that. EW did.
The Dean wrote:
EW’s paragraph, which you correctly note I quoted above, does a very nice job of summarizing the Dean’s prolixity.
Wait, that’s not the Dean, that’s me. While I hear you that we have not proven that Yoo has committed the same kind of objective misconduct, those are at least the terms that we ought to discuss this, IMO.
see mine at 34.
You are quite correct in noting the objective violations of Rules of Ethics are the ones we should be concerned with. There are two kinds of attorney-ethics rules:
(1) the rules which begin “thou shalt not”, and
(2) the rules which begin “thou should not”.
There’s a world of difference in that one word.
And, remember, the Ethics Police who administer the Ethics Rules, are really only interested in chasing down objective violations. They’re almost uniformly bright, good lawyers, but it’s really hard to make a disbarment case against a lawyer when all you’re alleging is a “subjective” violation. Plus, it takes a lot more time and effort than does a case where the violation is “objective”.
I have seen you argue this for a while now. First off, I am not convinced that the subjective-objective line is as bright as you make it out to be. Ethics complaints take a good long while to work their way through if they are substantive enough to pass the prima facie test. Drafted appropriately, with specific reference to Pa. canons, a sufficient complaint could be filed. Also, multiple complaints can be consolidated. I am not going to do it, but I believe you are giving short shrift to say it can’t be done.
I am not saying “it can’t be done”.
Rather, I am saying: “we should take our time on this and get it right.”
I say that for at least four good reasons:
1. It’s a general rule that, unless some really over-arching new facts come out, if an ethics complaint is filed against an attorney about event or transaction “X” and that complaint is docketed by the appropriate ethics authority, investigated by them and dismissed, it’s over. Forever. It’s kind of a “double jeopardy” rule. As of now, there are not enough facts out there to support an ethics case, and any case brought would likely fail, putting the kibosh on going after him later when more facts come out.
2. The “subjective”/”objective” misconduct distinction is quite important to the Ethics Police. They have limited time, manpower and budgets. The local ethics boards (where the case would start) are usually all-volunteer. Usually no one – not even the prosecuting attorneys – gets any money for their time. The Ethics authorities’ duty is not only to prep the cases for prosecution, but also to audit attorneys’ accounts, check their record-keeping, and so on. They will pursue cases regardless, but they prefer “objective” cases. Remember – Scooter’s disbarment took about 10 pages on the web. That, because he was being disbarred over a criminal conviction.
3. You can be sure Yoo will have the best defense wingnut welfare and their moneybags funders can buy. Why go with an inadequate case, now?
4. Generally, there are no statutes of limitation on attorney ethics violations.
I must concur, but I hope Prf Foland is correct and that the hard work digging into his craptastic citation/lack thereof is already in the works.
Edley needs to elaborate on this:
How does he know that? The pleading tone in Yoo’s voice? It seems that’s what’s not known. Plenty of evidence (ommission of most relevant Supreme Court case) indicates bad faith, but he’s unwilling to entertain this possibility. No one anywhere seems willing to entertain the possibility of bad faith or ill motive.
One can reasonably assume the Dean has had a chat or two about this matter with the Professor. One can reasonably assume that the Professor has a psychological need to continue to believe that he has been right all along, or failing that, numerous practical needs to continue to say that he continues to beleve that he has been right all along.
Belief — and first-person statements about it — can get pretty damn peculiar.
I think your analogy of a physician doing bad medicine is appropriate.
A couple of years back, a Neurosurgery Resident at University of California, San Francisco, was accused of using a temporary anesthetic to commit rape of hospitalized patients.
His department stood behind him, insisting he was of high moral standing.
As the prosecution was prepared, he suicided, but never lost the public support of his department chairman.
http://www.sfgate.com/cgi-bin/…..C6L2P1.DTL
Then of course you have the tenured engineering professor at Northwestern, Arthur Butz, who writes holocaust denial books.
http://www.adl.org/learn/ext_us/butz.asp
His tenure is safe, although he does not teach his theories in his engineering classes.
Academic Bonds and particularly Tenure are tough to break.
At Northwestern, every time there is a new Butz book or paper that calls attention to his wacko theories, the faculty publish a widely-signed letter noting disagreement.
Maybe it is time for Boalt Professors to write a letter announcing they do not support torture, or bending the limits of legal craft to write policies allowing torture.
30 years ago there would be some pressure from undergrads to consider the immorality. Ironic that Berkeley will be a nice sanctuary for a war criminal.
EW wrote:
I believe this aspect (see above) is an accurate assessment. I think it may be more possible to put pressure on the CA and PA Bar Associations than some are willing to credit. I know of one instance where an individual has petitioned the PA Bar to investigate. The process for appealing to the CA Bar appears to be more onerous, and would likely be undertaken by attorneys in CA. Of course, this assumes that Yoo is licensed in both of those states. I know there’s been some uncertainty as to whether and where Yoo is licensed to practice.
I found this comment from a thread of Brad DeLong’s interesting. So at least one CA law firm has looked at it. And, the National Lawyers Guild has called for Yoo to be disbarred.
Edley’s letter is precisely what I would expect from a university. However, if Yoo could be disbarred, I expect UC would be in a position to rescind Yoo’s tenure without going anywhere near the free speech issues that would send the faculties of the entire system into hysterics.
I still doubt they could rescind the tenure. You don’t have to be a member of the bar to teach law (you do to write OLC opinions, though).
My thought EW is UC does not want the lead in this business with Yoo. You are correct, he does not need to be a member of the Bar to teach. But, in many of these professional positions, it’s implicit that he is eligible for membership, even if he doesn’t currently have it. Were Yoo disbarred it lowers the threshold UC would have to meet to review Yoo’s tenure.
In many states a disbarred lawer cannot teach law to law students or CLE.
I don’t know about Cal.
The Dean is largely right. This is, in part, why the other day in the comments I urged people to wait when going about going after Yoo – he is not yet ripe fruit. He’ll get there, because the snowball is rolling downhill. But, anyone going after him or anyone else needs to remember that it needs to be done with respect for, and adherence to, the Rule of Law and all the institutions he, Addington, the Basement Torture Cabal, and the Queen Bee at the center of all this – Bushie – set out to destroy. Because, if anyone tries to rectify the damage they caused by using the same moral, ethical and legal shortcuts Yoo and his fellow gangsters did, they not only descend to the level of the manure pile they have turned the Oval Office into, but they also ratify the success of the institution-destroying Yoo and they set out to perform.
And, no, I don’t necessarily think writing a craptastic memo authorizing torture is necessarily, per se, unethical. The Rules of Ethics are not that defintive, in the bright-line sense. Remember, I’ve talked time and again about “Objective” misconduct and “subjective” misconduct. “Objective” misconduct comes up in the context of actual criminal convictions, repeated judgments of liability for malpractice, stealing money from clients (the account books will show the theft), lying under oath, falsifying court records, and so on. “Subjective” misconduct is the more subtle – bad judgments or decisions, wrongheadedness, conflicted representations.
Thus far, Yoo’s misconduct, while it was egregious malpractice, remains “subjective” – he performed bad, grievously defective legal analysis. That his analysis was leavened by his obvious toadying to the Administration (spelt “Addington”) and its desire for a free playing field so it could torture like a bored 11 year-old going after a frog exacerbates the errors, but it does not convert his misconduct from “subjective” to “objective”.
I can understand how a young, so-far-successful lawyer and law professor, his self-appraisal jazzed by the status he’d achieved thus far, could go down the road Yoo did. He saw his prior boss, Jay Bybee, sign the first memo(s) Yoo had written for him, the ones which were a mere dip of the toe into the cesspit of torture. And, in short order, he saw Bybee appointed to the Ninth Circuit. That sort of correlation was sure to get the message across to Yoo: give Administration what it wants, get appointed to judicial seat at a very, very young age and maybe, just maybe, get appointed to the Supreme Court one day. Unfortunately for not only himself, but also the country and all those who’d fall into the clutches of its government, for all his education Yoo had never developed any mature, detatched discernment. Had he developed it, he might have been able to recognize he was being played, with his eager, willing acquiescence and cooperation, into giving Addington and Cheney the dictatorship they wanted. They worked him no differently than one works a trainee hunting dog – into a frenzy of excitement for the quarry, with the promise of reward at the end. And the dog will do all sorts of crazy things for that reward.
I understand it. That does not mean I condone it in the least.
But, I would suggest we look back to the play/movie “A Man For All Seasons”:
So, let’s all remember to not destroy all the laws and institutions, in order to “get” Yoo, or any of the other members of the Bush Crime Family. They can be “gotten” without completing their work of destruction for them.
“So, let’s all remember to not destroy all the laws and institutions, in order to “get” Yoo, or any of the other”
Yup.
Why did Edley, as Dean of Boalt Hall, “speaking only for myself” use the schools web page for an editorial, instead of stating His or University policy as Dean?
Also EW how can Yoo be disbarred when he doesn’t practice law, he teaches law. He isn’t licensed by any Bar Association I could find, although he has standing in the 9th circuit.
I certainly hope the Lawyers, and the Judges, and the Professors get Very Vocal about:
What does their Lifetime security from Critics mean to US?
So far, we’re left to guess – by Yoo’s and Bybee’s actions – that Tenure and Lifetime Judgeships are meant to be ‘rewards of safety enclaves’ for Megalomaniacal Sociopaths who successfully do the blindly loyal, unquestioned, bidding of the Powerfully Depraved, whom they seek to please by Offering Up the Legal Cover for Cruel and Inhumane Treatment.
If the Professors and Judges don’t claim the High Ground – presumably Tenure and a Lifetime Appointment have some benefit to US – then Yoo and Bybee will set the Bar of Professional Honor – really fucking low – for all of them.
Before you know it, Torture-enabling, ex-Administration Members will be getting no-bid contracts worth millions…
Perchance this is why Mukasey is unwiling to relase the unclassified , yet unpublic memo that Yoo referred to in the MArch 2003 memeo? We haven’t seen it yet, but from the way he describes it, he opined that the 4th ammendment doesn’t apply in wartime (contrary to tons of caselaw)
Could be, esp. since (IIRC) his response to Congressional demands for it yesterday was that it was covered by attorney-client privilege.
He was a bit sketchy abotu that. He talked about the interests of other agencies (which in this context would be DOD), and he talked about the importance of the deliberative process.
Which is a different claim to privilege than attorney client, isn’t it?
Also, he did agree that Congress had some claim to this document.
Yes. Deliberative-process privilege is quite different from attorney-client.
The problem is, remember, the Republicans made bad (for themselves, now) precedent on the attorney-client privilege issue when they got all full of bile and went after Clinton. Remember? How the government attorney advising a government official does not result in a clear attorney-client privilege, unlike in the private context?
Yeah. That.
The deliberative-process privilege is a relatively new confection, and is not well-developed. Not nearly as well as attorney-client. So, if it can be kept out of the courts (deliberative process would surely land there), that would be a good idea. Otherwise, it just gets kicked down the road.
In addition to executive priveledge there are other concepts of privledge including “deliberative Porcess”
It protects “drafts” and internal memos that an agency circulates before coming to a fianl decision. These non final internalt discussion memos are xcempt from FOIA under the concept of deliberative process, Only the agenicy’s fianl decision woul d have to be released.
Kinda like the draft memos the SCOTUS floats around trying to reach a cdecisiosn. These competing ememos are not made public and have no force–it is only the final decisions that count.
NONE OF WHCHI would exchempt the 2001 Yoo memo from being released. It was a final decision at the time and its not even classified.
WHich is horseshit. These things used the be PUBLISHED.
Going back to what you highlighted, EW:
Edley is flat wrong for several reasons.
First, you can not hire him to teach as a professor of law and then say you don’t care about how he lived up to his “special obligations as an attorney.” If they want to hire him to teach “a non JD credit course, it’s a bit different, but he’s being hired to make and shape lawyers – people who will by definition be required to live up to special obligations as attorneys.
Second, he’s wrong about his distinction in Yoo’s role and that of the others. The reality is that Bush, Cheney et al were not the deciders for this. The reality is that when Bush, Cheney et al made the edict “go ye forth and torture” their decision meant nothing. Rather, the torturers waited for a more ultimate decision. They waited for the DOJ to tell them that what they were going to do was legal.
Do I think Bush bears responsiblity – the buck should stop with him? Sure. But the reality is that the decision on whether or not the torture would take place did not rest with him. Bush’s torturers waited for the LAWYERS to decide that they could torture.
As the story is coming out, I think on the CIA torture front (if not perhaps as much on the military torture front) what we do have is a situation where despite efforts to hang Yoo out as a run amok OLC secret operative, a clearer picture of Ashcroft’s and Thompson’s (and later AGs and DAGs) knowledge of, and participation in approval of, torture and rendition is emerging.
Still, the Deciders on torture were not the politicians, they were the lawyers. And obviously, the ultimate deciders on something like that are always the people who decide to participate in depraved acts. But their decision did not rest on a Presidential order or directive. Those were not “good enough” for them. They wanted the Dept f/k/a Justice and specifically the lawyers in the Dept to decide if the conduct should occur. And the lawyers made that decision. They own it.
Edley (Dean in 2003) didn’t hire him.
Yoo kept his tenure while on leave to commit crimes.
Edley was Dean when Yoo bounced back; If Yoo is convicted or disbarred, I’d guess they would fire him or relieve him of teaching duties at a minimum.
Which raises the issue, if the Majority of the faculty and dean think he is fullashit, why not relieve him of teaching duties or teach Law for PE Majors….
Yes, the Nazi example really jumped out at me as inapt, tone-deaf. As Dean at Boalt, of all places, he should have had some sensitivity to what a cliche First Amendment example that is. Come to think of it, it weakens the sincerity of his First Amendment argument for retaining Yoo.
Prosecute Yoo for war crimes. He can enjoy his tenure in jail.
Yup. And the Dean would of course be very cooperative with investigators wrt access to Yoo’s office, computers, ……. (does the UC system have the typical rights-waiving employment policies about computer use, etc?)
Just catching up on all this. I completely agree that Yoo should not be teaching future lawyers, and in a perfect world, his tenure should be revoked. But that’s a hard row to hoe, for very good reason (some of you will recall the McCarthy era when professors were canned for expressing progressive views, IIRC it happened during the Vietnam war also). (Full disclosure: I’m a tenured prof myself)
Sure, Yoo is like an engineering prof who goes outside the Univ. and deliberately builds bridges that will fail. Disgusting, shouldn’t be teaching. But let’s be more practical. Go after him where he’s vulnerable. He is a member of the PA bar, IIRC, and that IMO should be much easier to attack then his tenure. Won’t stop him from teaching, but it would help (all his students would know). Better yet
but that looks a little remote at the moment, unfortunately.
On the other side of the coin – a few years back at the University of Colorado, Professor Ward Churchill not only lost his tenure but was fired because his views differed than the Bush administration on 9/11.
Yoo doesn’t seem to be a member of the CA Bar Association – they have a nice search engine on their site, listing members as active or inactive.
Edley does a good job of distinguishing between the various objections that people have no doubt raised with him about Yoo. I do think he missed a couple things, though.
Yoo may not be as culpable as Bush and Rumsfeld, but surely he bears *some* responsibility for the advice he provided to them. This is what conspiracy law is all about, right? “No, I didn’t rob the bank — I just gave the guys who did some guns, told them to be careful where they point them, and drove them to the corner on which the bank sits.”
Academic freedom, as Edley says, must be maintained. On the other hand, so must academic quality and rigor. At some point, Edley as Dean must answer the question: “Is Yoo’s understanding of the Constitution, the separation of powers, and the role of the judiciary so far outside the mainstream that it places the education of our students at risk?” Is a criminal conviction the only way in which Edley could answer “Yes” to that question?
Of the two questions Edley asks at the end, the first is the one that caught my eye. In looseheadprop’s series of posts at FDL dissecting elements of Yoo’s memo, she’s raised questions of academic misconduct. Yoo claims that his citations say one thing while in actuality they say/mean the opposite, and he fails to grapple with one of the most fundamental war powers cases anywhere in the memo (Youngstown). The latter is an error so basic that one questions either his grasp of the subject (not likely, given his course reading lists) or his motives as a lawyer (whether he consciously twisted the law to please his clients).
Both of these are academic misconduct issues — not policy issues — and neither is defensible under the rubric of “academic freedom.” About the only thing worse, from an academic point of view, would be outright plagarism. Absent a criminal conviction, this is where Yoo is most vulnerable.
Keep after him, LHP!
So, are suggesting that his “cut and pste” of “boilerplate” is an admission against interest that he committed plagerism? *g*
I agree with characterizing Edley’s comment as a “reverse Nuremburg defense”. I had a similar thought when reading that passage and I think this phrase expresses it really well. I also think this line of thought explains why Yoo should be included among the defendants when the ICC brings charges. Of course, conviction at the ICC should be sufficient grounds for UC to finally fire Yoo.
However, I recall an instance from about 30 years ago where a tenured professor at a prestigious private university was fired for violation of a “moral turpitude” aspect of the employment contract. Does anyone know if Boalt Hall uses employment contracts and if the standard form includes a “moral turpitude” clause? It would seem to me that intentionally crafting a legal opinion that is intended to enable crimes against humanity would fit the definition of moral turpitude:
You’re right, EW. The cherubic, interviewer-friendly John Yoo is a law school dean’s worst nightmare. Dean Edley is damned if he defends the principles under which Mr. Yoo should retain his job (without remarking about those that argue the other way, as Yoo forgot about Youngstown and Altstoetter). He’s damned if he tries to fire him, setting a precedent that could be abused by others, and taking on the trustees by threatening the university’s capital campaigns. “Y’all were telling us all about that supercolliderthingumbit YOO wanted us to fund, pardner?”
Thing is, that’s the identical quandary Yoo faced. I envision it something like this. A figuratively too close for comfort David Addington whispers into Yoo’s ear: “You’re a brilliant, arrogant, ambitious, non-white, young immigrant. You have a choice, John, Sign here and you’re a made man. Don’t sign here, drag your tail back to Berkeley with the first nasty performance appraisal you’ve ever had and the lasting enmity of Dick Cheney. Your call. What’s it gonna be, John?”
What’s it gonna be, Dean Edley? I think the writing’s on the wall in one of the straw men he poses as metaphors for his decision making:
Those are ironic and inaccurate analogies, drawn from recent cases in which it was held that the First Amendment protected controversial speech, in part, because that speech did not advocate the doing of imminent bodily harm. It’s ironic because Yoo’s troubles stem from his willingness to discard related Constitutional guarantees because a self-declared warrior president claimed they fettered his right to protect Americans in any way he saw fit, in his sole discrettion. Doubly ironic because one wonders whether Mr. Yoo would have upheld those rights to free speech when working for a president addicted to “Free Speech” zones.
Better analogies Dean Edley could have chosen would include Mr. Yoo taking leave from Berkeley to become legal adviser for a repressive Latin American dictator. Or to help draft the modern equivalents of the Nacht und Nebel laws for Mr. Putin – or Mr. Bush and his Italian renditions. It is that positive behavior, not Mr. Yoo’s expression of controversial political views, that call into question his right to remain a tenured professor of law and member of the bar.
27 –
In the exchange between Mukasey and Feinstein up at TPM, Mukasey seems to be indicated that a) the “opinion” as a whole has not been withdrawn; b) the rationale of the Fourth not being in effect domestically with respect to the military is wrong; but c) that rationale was only an alternative to ANOTHER rationale to support the searches “at issue” in the memo.
emph added
http://tpmmuckraker.talkingpoi…..t_appl.php
PS – I don’t know so you crim guys tell me – how “commonplace” is it for the USA’s office to have FBI agents call up jurors after a trial? Also from TPM. I’ve known of lawyers to do that for various reasons and depending on the state, but I have to say even as a lawyer I’d be taken aback after trial to get an FBI agent calling me to have a little talk with me about why I voted the way I did.
http://tpmmuckraker.talkingpoi…..ht_jur.php
*********
Back to Yoo – I do think it is true that no one has “all the goods” yet to go after Yoo (in line with much of what scribe has said – there’s a lot more to be done first), but I still think Edley’s wrong in what he laid out on a failure to meet professional ethical standards for “special obligations” should have no input and that the lawyers were not the “deciders.”
The problem is that a great deal of what is known now was known or suspected when they made their decision. The bigger failing is what they did then as opposed to now. For now, having made the ineffably bad decision years back to put a torture supporter – kind of the ultimate in hate speech – on staff, they now need a lot to get him off.
While it’s not a popular view, I don’t think that what Yoo did was terribly different than what Goldsmith and Comey and others did and failed to do. Certainly – he never signed off directly on the paperwork to send a specific person to Syria for the ultimate outcome, like Larry Thompson did for Maher Arar.
“having made the ineffably bad decision years back to put a torture supporter – kind of the ultimate in hate speech – on staff”
Yoo received tenure in 1999, before he took a leave to work for the Bush DfkaJ. AFAIK, he didn’t write any opinions justifying torture pre-1999. (Edley could paraphrase Condi — “No-one could have anticipated…” ;>)
He had written law review articles on the supremacy of the unitary executive prior to 1999, and the reasoning in those was not too dissimilar from the torture memos. The torture memos were just a condensation of the ideas from the cloud castles of his law review articles onto the factual predicate of a President who wanted to torture brown people, to provide the intellectual(ly dishonest) rationale for doing what the President wanted.
In fact, he attacked Clinton’s expansive claims to executive power in Kosovo. How ironic is that?
Not very. He had to make sure the Repugs saw he was on their side. And that he could argue both sides of the aisle – the mark of a true sophist.
As we speak, I feel quite confident there is someone who has collected every article Yoo has ever written and is combing through them for anything that could be be made to look like plagiarism. Even so little as a missed footnote somewhere would make Boalt’s life much easier.
Well, he ain’t real good on cites you know….
I expect you’re right. And, we can be sure that the administration is spending a not insignificant amount of time speculating on what, how, and when they will be called to respond further. Their HR dept is in overdrive, and the EEOC folks are ginned up and ready. UC simply hopes (fervently prays?) the Yoo storm converges outside their purview. They will respond, but they do not want to initiate. Second position is much safer for UC.
Side note: FWIW, Scott Horton was under the impression that Yoo was a member of the CA and PA Bar.
Yesterday I told you all that, indeed, he is an active member of the Pa. bar.
Heck, we know he didn’t cite his use of “zenith” even in the Torture Memo.
But I don’t think that gets us to a perjury charge, huh?
His having “misread” what comprises the zenith of presidential power may lead to the nadir of Mr. Yoo’s career. But Mr. Yoo, however much he wanted to it, did not have flag rank and was not on the “general staff”. He deserves the criticism, but he’s a placeholder for his superiors, including Ashcroft, Gonzales and Addington.
If Yoo had cited “zenith” the Youngstown, uh, lacuna would have leapt right off the page. The word “zenith” strikes me as the smoking gun, Yoo-accountability-wise.
36/48 – I only saw some written excerpts and didn’t watch Mukasey’s whole hearing, but my understanding is that they were arguing not so much atty-client or deliberative (umm, the memo from OLC should be a statement of law, not a policy deliberation and if it is just a deliberative document with no firm legal conclusions no one could rely upon it) privilege – – my take was that he was saying the opinion was subject to another agency’s claim that parts of it involved “classified” information.
Which, again, is pretty much bull imo but it takes it down a different lane.
No, he specifically address both another agency’s concerns (DOD) and deliberative process, both in the same sentence.
55 – so he took leave to go work for the admin and then just returned? Then they did not have nearly the same bad judgment (although his Clinton era articles are “something” they are just political, not criminal) but the have the same problem with getting rid of him if they even want to get rid of him – – – they need a lot more that is truly evidentiary and not anonymous sourcing.
I do think they should subject some of his work that has been declassified to peer review, though.
There sure was a fucking clamor to debar Bill Clinton. I know I don’t know nuthin, but I think Yoo’s conduct is, um, worse. And before anybody whips out perjury or material misrepresentations, give me a break. He didn’t do squat under oath except for take mental and legal advantage of some piss poor depo examiners that apparently couldn’t find a followup question if their pitiful lives depended on it.
What, why, and how did they choose Yoo to write the opinions? Based on what?
LS – If it was anything like Bradbury, Yoo was put in a room with pen and paper and told by Addington to give answers to ‘hypothetical situations.’
Since Yoo, like Bradbury after him, got the job, we can almost assume he showed just the right amounts of Moral Blindness, Professional Slickness and Lapdog Enthusiam to be fed the really good stuff that Bush wanted Green-lighted.
jm2c
Fuck Yoo, he shouted “drown them in a crowded detention cell.”
His words are not protected since he incited a “clear and present danger”
and brought about evil (torture)…
59 – the needed them to come from OLC, he was Bybee’s top assistant, available while Bybee was out campaigning to be judge, and he was putty for the right people.
OT – black holes in cyberspace.
Good description of Bell Canada.
I can think of one time when FBI agents NOT working on a case got involved wiht the jurors. The legendary (and much worshipped by me) Walter Mack was trying a mafia case in SDNY. At the same time EDNY found out the mob had bribed a juror on the case. They went ahaead making their case against the juror and the mobsters, all w/o telling Walter who went through the rest of the trial not knowing he was screwed no matter how well he did.
Never heard of it before.
I just finished a civil jury trial. After entry of the judgment the judge allowed us to speak to the jurors, but only if they wanted to speak to us and only in the deliberation room.
A worthwile experience, BTW. Got a lot of valuable feedback.
I agree with TPM, it is the LAWYERS who speak to the jurors and only with the juror’s consent.
The ONLY reason I can think of for FBI unrelated to the case to be asking to talk to them, is if there is some reaosn to suspect jury tampering. You wuld conduc tthat as a seperate investigation, better stil with a “chinese wall” seperating from the case in chief
Frankly, I think it was the US Attorney tampering with the jurors – past and future. As TPM noted, any potential juror on the retrial being aware that the FBI came out to the other jurors when they failed to convict, might be inclined to convict just to avoid an FBI visit.
I had the FBI visit a former office of mine a couple times – nothing we had done – and it’s distinctly uncomfortable.
Of course, it’s nothing like getting the FBI guy to go to the wiseass-character who works the front desk in the building’s atrium, flashing his badge under desk guy’s nose and saying “Hey, [insert first name]! Long time, no see! You staying out of trouble?”
Heh heh. If you haven’t done it before, or haven’t done it much, chat them up if they are willing. DO NOT alter anything you do as a result though. After a few times, it just drives you bonkers talking to them unless there is a specific point you need.
It was useful for me, in that it confirmed my focus was correct, and that the way I tried the case, using my adversary’s exec as a prime, and final, fact witness, also worked well.
Also, they gave feedback which will be helpful to my client, going forward.
Berkeley Law School now has a new and special meaning for it’s alumni. The University of California has had a devastating legacy with Reagan and Wilson terms in office, now Arnold, son of a nazi. Guess you can make only so many compromises before you become irrelevant.
62 – I agree Yoo is worse (and that Clinton had a technical depo point – and also that Starr was just a maniac – I’m still pissed about ignoring state law on taping conversations and that woman who was threatened having her adoption undone).
But I agree based in part on things that aren’t in evidence or part of an under oath proceeding. Basically, I’m just saying the foundation needs work – not that the house shouldn’t be built here.
If he’s teaching con law, then are some poor kids stuck with him on a non-elective basis? I think they should petition for him to have a babysitter in his classes and for grading, lest he forget to teach them about cases like Youngstown, Milligan, Alstoetter and to make sure someone in class at least knows that the Fourth Amendment is in effect even today.
OT – House Repugs now going to shift focus from NEW FISA and immunizing telcos to making Bushco’s 2001 tax cuts permanent.
Kinda reminds me of Jerry Falwell going after the purple TeleTubby for being gay, right when it became clear the Clinton impeachment would fail.
72
LOL not a bad thought. The human pyramids will be clothed, but he can get used to that.
Rincewind (btw, I’m a big Pratchett fan) got the first shot at setting me straight. I can picture a torture solicitor cum Law for PE Majors prof in a Pratchett book, though.
Agreed, drational’s “Law for PE Majors” made me LOL. Could Boalt/Edley just take all his classes away? Re: Pratchett, I’ve been wondering if the Bush
mafiaadministration has made it hard for him to come up with stories? How do you satirize this??? (the The Onion problem)Taking away all his classes might not be a badge of shame, (although doing so undoubtedly would protect the law school students). In some universities not having to teach is considered a special perk.
We don’t want to reward bad behavior.
Why free up his calendar? Better to assign him to teaching survey courses (if they exist in law school)–less time to meet with his fellow Federalists. More chance that angry first year law students will complain to the Dean about his performance.
Plus forcing Yoo to teach year after year Constitutional Law (and not Con Law) will be his own special purgatory. I like the idea of a university babysitter in the lecture room in case Yoo forgets to mention Youngstown and other big picture items like the 4th amendment and the Legislative and Judicial Branches of the US Government.
I would compel him to teach CONTRACTS (and perhaps REAL ESTATE LAW), since he clearly is incompetent to teach Constitutional, International, or any legal area that relates to human rights. I’d require him to take on additional classes to make up for the courses that he lost while granted sabbatical multiple times over the year. I might even make him to commute to Davis to teach a course there in the Summer heat to catch up.
I’d strike him from being the Executive Director of the special group he was appointed to.
He shouldn’t be allowed time of to go to conferences, association meetings, libraries, to be a guest lecturer, etc. He’s been grated enough time away to make up for decades. No travel money, no per diems. Give him a very small office. have him deal with the issue and burden of his “free speech” himself…though require him to deal with correspondence on it professionally and with reference to established law. Require him to submit copies all letters dealing with the issue to the University. Require him to hold open-ended Q&A sessions several times a year to respond to critics and discuss his actions while serving in the Justice Department.
Make him surrender any other appointment (e.g. the AEI post) and devote his full attention to Boalt. If not ask him to accept one or the other appointment.
JBalkin has a thoughtful thread at Yale entitled something like, ‘War Crimes Prosecution?–Dream On.’ Downthread there, writer MField describes more of a map like the one Conyers’ invite might initialize, a careful expository of the compartments that incubated Yoo in the Bush administration. One of the longtime workers in the DTA+MCA processes provides a link to correspondence sent to the National Lawyers Guild in the Yoo scandal, addressing the responsibilities professional associations bear for cleaning house; most of that missive is excerpting Edley, but the author CGittings adds some lawCites and one paragraph of personal opinion at the end of the document. JBalkin is parallelPosting at ConvictionsBlog atSlate, where also declaratively MLederman has joined the argumentation against various academics on Yoo’s topical work.
I tend to agree with JBalkin’s article’s title’s prognostication, but believe his reasoning more laborious. In an ancient writing, a cryptic early thinker propounded a more visceral reasoning in the Poetics, Part VI, concerning catharsis, which is how I have viewed the Nuremberg process, mostly ritual community action. The essence, for me now, though, seems aligning with the effort of the senior don in the House, Rep.Conyers: just the facts, Mr.Yoo; those details, expanded, should be enough to marginalize the vitiating trend Yoo’s polity represents. As MField observed in the linked thread, and as Edley diplomatically alluded in his own position statement, much of the work the professor did on sabbatical working in the administration’s favorite compartment within OLC was in the political arena, albeit garnished with a patina of law expertise.
If the reader is interested in a comic routine by the current attorney general of the US March 27, 2008: early in the Question and Answers after a brief talk, Mr. Mukasey replied to a question about canons of ethics as applied to investigations of public corruption. His vagary is interesting for its attempt to cast even judicially based political office in partisan terms:
“”
Mukasey: I do not know anything about the details of the HK commission, so I am in no position to comment on it. However, I have to tell you (chortles self effacingly) that my instinctive reaction when I hear the phrase “independent commission” (laughs), is to reach for my revolver (one person laughs, then a titter of laughter). Independent commissions have a way of running amok. The department is headed by a politically responsible person. The record should reflect that I am pointing to myself. I am answerable to the public. I am not independent. In a sense I am not independent. I am a member of an administration. I am sworn to uphold the law; that is by its nature independent. How well I do that is something for which I am daily held responsible, justly; and subject to removal if necessary. Independent commissions that float free, and can do as they please, and have as much sport as they like with whatever they choose, they give me a great sense of unease. Every member of this administration is politically responsible in a sense that people run for office periodically, administrations change, and that’s just fine. That is, I think, the best measure of independence. “” CwCofCA audiofile @ ~30:30ff.
That whole Wecht case is weird. A federal case where they straight faced push that he violated property use laws to the tune of about $4.00 in theft of fax services as something that gets actual attention? I know that’s not the only item, but good grief.
Well, look at what the Pittsburgh Post-Gazette (the responsible, non-Scaife paper) had to say. The close of the article pretty well sums it up:
OT – and Conyers is getting up in arms over it:
He’s also invited Feith, Addington, Levin (temporary head of OLC), Ashcroft, Tenet and more to come by the HJC and talk about torture.
Chris Edley wrote:
Exactly. Just like Charles Manson advised “Tex” Watson that the time of Helter Skelter was fast approaching and provided the impetus for Tex to direct the Tate murders. After all, it was Tex and the Manson family members who were the deciders to commit these acts, not Charles Manson.
Good thing that kept Manson free and clear. Oops!
– Tom
I love the “reverse Nuremburg defense.” Just like the NRA people. “Guns don’t kill, people kill.” It wasn’t the gun that killed, it was the bullet that did it. It wasn’t the bullet that killed it was the holes that formed where the bullet went in (and then came out). How difficult is it to see that a cog in the machine is still a part of the machine. Yoo played an integral, if not malicious, part in an plan to subvert the constitution, Federal law, State law and even the less recognized natural law.
Mr. Yoo is no fool, he must know that he can never leave this country again. He may not even be safe in this country, from war crime indictments. He may suffer asocial personality traits which may very well be brought up in his defense hearings, but I suspect that he just was like so many young “wingers” (left or right) that he merely did as he was asked, or rubber stamped the document unaware of what it really was. But now he is having trouble disavowing it , b/c he comes across as unethical if he just rubber stamped it.
The first error Edley makes, IMHO, is to fail to lay out any expectation of reciprocity — his statement is all about what Berkeley ‘owes’ Yoo: tenure, retirement benefits, free speech, medical coverage, office space, research resources, yadda, yadda.
This is written as if Yoo owes Berkeley nothing.
Pardon me?!
I’m perfectly willing to be a horrendous scold and point out that this is completely craven bullshit. It’s NOT a one-way interaction here.
Yoo was able to get the DoJ position — desirable to Bu$hCo precisely because he was a minority from a ‘librul’ West Coast, prestigious law school. His connection with Berkeley (and certainly the illustrious benefit of ‘tenure’) endowed Yoo with a certain cache, raised his ’social prestige’, enhanced his reputation. Berkeley gave Yoo all the goodies, and now Yoo, having trammeled the institution’s fine reputation, owes that same entity nothing? (Wow, how nice for Yoo; how stupid of Berkeley.)
Bu$hCo didn’t ask little anonymous wanker from Regent Univ to write the torture memo.
They asked MinorityGuyFromPrestigiousWestCoastLawSchool.
Bu$hCo didn’t pursue the torture policies UNTIL they had a legal signoff.
If Yoo hadn’t done their bidding, they’d have found some other tool to write what they wanted. But Yoo did the deed, and he needs to account for his conduct.
Dean Edley would be wiser to acknowledge that Yoo couldn’t have caused this damage without the ’social cache’ and resources at his disposal specifically because of his Berkeley connection. Edley can’t turn a blind eye to that fact; his job is to look out for THE INSTITUTION, and although it’s nice that he recognizes the principle of academic freedom, in this case that is not the primary issue in play.
Pardon me for being a scold, but the Dean would be more prudent to get some cajones and insist on a new policy discussion among his faculty: “What do we owe the institution that feeds us, supports us, nourishes our intellectual development?” If they all say, “None of us owe Berkeley jack sh*t,” whic, given the prima donna delusions of some law school faculty, is possible, then the Dean ought to figure out how to provide them a Reality Check.
How is it that Berkeley’s largesse doesn’t have to be acknowledged or respected by Yoo?
If Yoo were an ethical person, he’d have to do the following: admit he’d drug Berkeley’s name through the filth of torture, and then resign, having damaged the hand that fed him.
I don’t think it will happen — Yoo’s identity is almost certainly intricately tied up with his faculty position, and he can’t face the prospect of losing his identity.
Nevertheless, Yoo had a very privileged position.
He abused it.
His abuse enabled rampant criminal, inhuman conduct.
His flawed reasoning placed people in positions where they rationalized demeaning behavior and perpetrated crimes.
To say that Yoo was not ‘a decider’ is a gutless, cowardly feint.
Dean Edley’s failure to confront both Yoo’s tragic conduct, as well as its impact on his institution is acceptable ONLY IF this is simply an opening salvo in an ongoing process of removing Yoo.
If this is Dean Edley’s final reasoning, I sure as hell wouldn’t want him as my lawyer.
83 – is there text on what he said somewhere? I think you have a hard time arguing that a reliance opinion can also be a part of the deliberative process – it’s supposed to be a legal summary, not a policy exploration. Interesting, that.
My transcript:
The statement ends aroudn 2:14.
Also of note, DOJ is refusing to turn over the August 2007 OLC opinion finding that Office of Administration was not subject to FOIA, on the basis that it was pre-decisional.
89 – out of the mouths of – jurors.
Jurors are like Art Linkletter’s kids; they say the darndest things. But one crazy encounter with them can erase 9 positive ones such as Scribe seems to have had.
Note of how Edley titled the letter:
“The Torture Memos and Academic Freedom”.
Certainly a statement on Yoo’s work.
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
More or less the Marty Lederman position — that OLC staff should not be prosecuted. I couldn’t disagree more.
However, if Edley is going to insist on trial and conviction as necessary to remove Yoo, I’m happy to support that route.
It seems appropriate to read the actual policy that Dean Edley is bound by, here (pdf warning)
One item jumped out at me:
Yoo seems to prefer to cite himself; can that be misappropriation? However, research misconduct might be a possibility; did Yoo go on any of the trips to Gitmo? Did he “participate”?
…like maybe basing an OLC opinion on (a wholly vacuous misinterpretation of an off-point aspect of) Youngstown and then failing to cite it so it couldn’t be checked by any reader not already familiar with it? I’m sayin’ “zenith” = Yoo’s smoking gun.
96 – on a sad note, did you see Pratchett’s announcement that he has a form of Alzheimer’s?
But I go back and read things from time to time – books that were written prior to Bush, and you can see he should have been a prognosticator.
From Pratchett:
Not that I’m pulling quotes with anything in particular in mind.
98 – Yes, Yoo did go to GITMO.
http://www.msnbc.msn.com/id/15361458/
The CITF guy, not to be confused with the lawyers of DOJ, in that same article
It’s not that there were no good guys – it’s just they aren’t the media darlings that get sold as being the good guys.
Here’s where I think Yoo bites the big one, if investigations can be put together. He knew about all kinds of high profile cases and the claims and defenses being made by lawyers for the disappeared and the tortured. He also had specialized knowledge of what things had and had not been authorized – especially since he had written so many of the memos. He never seems to have advised anyone to preserve information that might be needed as evidence in any of the many ongoing proceedings. Whether he went further than that and did not prevent destruction of evidence and did not notify the courts of destruction of evidence – that I think there’d need to be a lot more investigation about.
But in the end, the buck doesn’t stop with an OLC opinion “authorized” certain acts – when those acts also become the subject of legal claims as to their unconstitutionality and DOJ lawyers do not preserve evidence of the acts for a real COURT (remember that third branch of govt thing?) to issue its determination and also do nothing to hinder the destruction of information, then I think you have more than just an argument on who a torturer ultimately relied upon and how professionally incompetent an opinion is, etc.
That’s the route I think needs loads more attention. There have been boatloads of cases out there and where has the DOJ been on insuring preservation of evidence?
Where was Yoo?
That’s a skeleton I think needs a shot at flesh.
OT re 101 — my grandbaby’s first book was “Where’s My Cow?” He’s 2 1/2 now, and counts “one, two, many” (good thing my daughter’s also a Pratchett fan, otherwise she might not appreciate Grandma’s influence ;> )
Last I checked, the University of Colorado is a public institution too. Wasn’t Ward Chruchill’s tenure was sacred too? All he did was say something. People actually died as a result of John Yoo’s opinions.
From Bush, today [My emph]:
95 – Thanks much. That’s a pretty funny take on things – that somehow OLC opinions about the status of the law are policy deliberations. I mean, we know that OLC has spent 7+ years saying, “tell us what you want the law to be and we’ll make it that” but still. It seems as if he’s partly going for the “broader than the memos” parts of the requests, by saying not “every piece of advice” “within the department” should be out for public debate.
An OLC opinion is no “every piece of advice” being given by the Dept. It’s a memorandum of law – shouldn’t be all that much to be secretive about and IF the Executive Branch is going to treat OLC opinions as if they were both Legislative and Case law, then yeah – just like legislative and case law, they need to be public and a part of public debate. Law is not diarrhea, it’s meant to be a public function.
I think the reference to the “equities” the other agenices have, as opposed to referencing classification/declassification, is pretty close to an outright admission that there is no classification argument. In talking as if he, Mukasey, somehow has the annointed right as AG to “balance equities” between Executive Branch departments and Congress, he is a) admitting that there is no legal reason not to comply (only an equitable reason), and b) saying as chief law enforcement agent that he is not going to follow the law, and c) forgetting that while, as Judge, he had the power to balance equities between dissenting parties each subject to due process and represented by advocates – he doesn’t have any special “super-equity” powers as AG. It’s not for prosecutor to balance equitites on behalf of his own client, without even allowing the opposing
party an input. Judges and at times juries balance equities between opposing parties under out system of law and govt, not a vested prosecutor balancing for the benefit of his own client.
Mukasey’s not that fuzzyminded – he knows better.
Agree it’s invalid, as far as I understand the law. BUt it appears it’s their latest ploy to try to postpone releasing these opinions. The CREW one is particularly egregious, since they reason they had the OLC opinion done in the first place is to refuse to reveal OTHER records.
I agree Mukasey knows better, however, I do see him as ‘Believing’ that his ‘role’ is as a Super-Equity Balancer between the UE and His Loyal Coterie of Executive Branch Ideologue Minions – and The Entire Rest of the Traditional Constitutional ‘Administrative’ Government, to include Congress and the Courts.
Let’s face it – if Mukasey didn’t ‘Believe’ in an Extra-Constitutional Sovereign *more* than his Better Judgment told him that Ours is a Government of the People, by the People, and the Rule of Law, then We wouldn’t be jumping through these Crazy-making Hoops to ‘Legalize’ or to Boot-strap ‘Legality At The Time’ the War Crime of Waterboarding, based on Bush’s UE Power to Declare What Words and Treaties ‘Really’ Mean.
Mukasey HAS been Balancing the UE vs US – all by himself. While he’s less obviously biased than Gonzo, he’s still a True Believer, all the same.
And Bush is using his ‘Beliefs’ – primarily that Mukasey Believes That He, Mukasey, is The Deciderer in This Time of Crisis – the new fucking Al Haig – to block both the Congress and the Courts.
Mukasey has Drunk the Kool-Aid and made his position as AG the Political Tool of Bush the UE, whom he Believes in.
So much for Prosecutorial Independence in BushWorld…
Were I Dean Edley, it wouldn’t be Yoo’s absurd conclusions that would bother me. I would be stunned that a Professor of Constitutional Law, rather than interpreting the Constitution, seems to be judging it as faulty and changing it. Thinking of John Yoo as a lawyer is like thinking of James Dobson as a religious leader. They are both political prostitutes, masquerading as something else. John Yoo is a tenured Law Professor representing Edley’s Law School by actively misinterpreting the United States Constitution. Academic Freedom is about the right to have one’s own opinions. John Yoo didn’t take his whaky opinions to a legal conference, he secretly rendered them on demand to the government of the United States certifying them as legit.
I would think that a better way for Dean Edley to think about it is to consider that one of his tenured Professors opened a brothel with John Yoo, University of California-Berkeley School of Law Professor on the front door, or maybe sold Snake Oil by John Yoo, University of California-Berkeley School of Law Professor. How about John Yoo, University of California-Berkeley School of Law Professor says that pedophilia is not a crime? Academic Freedom and Certifying Torture, Invalidating the Constitution, and Revoking the Geneva Conventions are very different things.
dean edley:
[he (john yoo) enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.]
i would bet it was said earlier above, but i am not going to wade thru all the comments to find out,
so,
john you enjoys first amendment and due process rights?
of course! he is an american citizen.
and jose padilla?
he is an american citizen, too.
why the one and not the other?
some porkers are more equal than others, i guess.
this dean does what all deans do:
when one of their star acquisitions is in trouble – he honors “the academy’s” traditions.
the good dean edley, being a lawyer one presumes,
also leans on the american constitution, as, no doubt, he was trained to do.
but he does not suggest his analysis be extended to padilla.
“a judge
and a good judge, too.”
Some pigs are more equal than others, it seems.
I also question how Yoo made it through the initial tenure process.
The UC Policies are quite specific on the importance of teaching during the first years after an initial appointment and subsequently.
UC Office Of The President Regulations on Tenure Bothe Teaching and Departmental/College Service requirements are such that they would require consistant residency in Berkeley. Yet Yoo spent several of his first years as a professor “at Berkeley” in Washington DC, first as a Clerk to Clarence Thomas, and then as Counsel to the Senate Judiciary Committee. Then he returned to Cal, just before receiving tenure. I just don’t understand how he could have obtained the requisite service either as a teacher or in Departmental Service. Publications, yes perhaps…but that’s just a portion of the requisite. And if progress isn’t made every two years in each area the two year contract can, and should be, terminated.
Once Yoo received tenure security in 1999 he almsot immediately took yet another leave of absence to serve in the Justice Department. After several years doing that (2000-2005) he then accepted Visiting Professorships at the University of Chicago, the Free Universiteit in Amsterdam and in Italy. He also served as a Visiting Fellow at the American Enterprise Institute.
How can this be adequate to fulfill his status teaching. Why were the four visiting Professorships granted after such a long period away from Cal? There are major questions as to who is allowing Yoo to spend so much time away from his regular responsibilities. Is someone keeping him away from students to conceal a more general incompetance, or to prevent them from acquiring erroneous information or methodologies?
And conflicts with outside work commitments are exactly the sort of “incompetence” that is actionable in post-tenure review. Such work, if it interferes with teaching responsibilities, may result in dismissal.
Skip the tenure bit, forget equal protection and all the other “niceties” that the Constitution provides and let’s just shun his ugly, pasty ass. See him in a restaurant? Get up and walk out muttering “Fuck Yoo!”
Let Yoo get tenure in the court of public opinion and let’s see how that works out.
Marcy et al,
Here is a link to the Academic Personnel Manual from UC that Dean Edley is referencing when he sites “section E” as a reason why Yoo cannot be removed (yet):
http://manuals.ucdavis.edu/apm/apm-toc.htm
The document he mentions is APM-015. If you look at the sections above “section E.” one gets the distinct impression that Dean Edley is trying to argue against applying sections C. and D. in his website letter but does not list them since, well, he probably has some holes in his letter’s logic and rationalization of not beginning an assault on Yoo’s tenure at UCB. These sections deal with ethics and outside work meeting academic and field of expertise standards.
My thoughts on where Yoo is currently vulnerable is at Berkeley. In Pennsylvania, if he is in fact a member of the bar there, an on going ethics complaint might help too.
In any case, Edley is basically declaring that someone else is going to have to work to remove Yoo as he’s washing his hands of it until he sees legal convictions involving Yoo’s legal opinions and other actions. This is typical of academic administrators, not just at UCB. So, it is now up to the facility to raise the issue…and the students…I mean, why wouldn’t it be an expression of their right to free speech to wear black arm-bands to class, etc?
People like Yoo make me sick–he is an enablers of the lowest common denominator of human depravity…sadly, at the highest levels of our own government. And I can hardly wait to see all the other memos that implicate him in a conspiracy to secretly subvert our Constitutional Bill of Rights.
Other documents of interest in the TOC at UC Davis are APM-010 and APM-016…
–Timbo
When I read about this decision, I misunderstood it. I thought he was talking about some noble concept – Academic Freedom. Edley was talking about Academic Personnel Manual sec. 015 – his school’s Constitution. So I changed my mind. Dean Edley had the same dilemma as John Yoo. He believed one thing, and the rules he upheld said another. So he said what he thought, but he followed the rules. John Yoo said what he thought, and bent the rules to fit. So good on Professor Edley. I expect John Yoo will be teaching Legal Grammar 101 next year instead of Constitutional Law. And who knows, maybe by then there will be a “… conviction in a court of law.” Yoo certainly meets the other criteria – “Commission of a criminal act” and “clearly demonstrates unfitness to continue as a member of the faculty”…