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[Post No. 6] Yoo, Boalt, and Academic Fredom: Dean Edley Speaks Out

By Jack M. Balkin

In response to many calls for possible dismissal (or at least investigation) of John Yoo at the Boalt (Cal Berkeley) School of Law, Dean Chris Edley yesterday issued the memorandum set out below. (Thanks to AP's Pam Hess for the tip.)

Although I have been among the most vociferous critics of both John Yoo's work in the government, and his scholarship, I largely agree with most (though not quite all) of what Dean Edley says here; I, too, am uneasy with the notion of Boalt taking any serious steps with respect to the employment of a tenured professor. (Full disclosure, for what it's worth: I worked both with Chris Edley in the Clinton Administration, and with John Yoo in the Bush Administration. I have not spoken to either of them about this matter.) For an alternative view, see this provocative post (and the resulting comments thread) from Henry Farrell. [UPDATE: See also this thoughtful post from Brad Wendel. And this impassioned defense of tenure from Brian Leiter. (A quibble for Brian: You write that "Tenure, and academic freedom, would mean nothing if every professor with views deemed morally reprehensible or every professor who produced a shoddy piece of work--while inside or outside the academy--could be fired." That's right, of course. But no one thinks a professor should be fired for having views deemed morally reprehensible or for producing a shoddy piece of work. The claim here is that the morally reprehensible views, and the shoddy work, in this case were ut to use in official state conduct that facilitated and immunized horrific crimes. And that makes the question at least a bit more complicated, no?)]

Especially because I don't have any special insight on this question, I'm very interested in what my co-bloggers have to say about it and, more broadly, about whether there are other steps that members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality, but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing.

I know that many Balkinization readers will (perhaps fairly) accuse me of bias based upon where I have sat (OLC) and where I now find myself (the academy), but I find such questions quite difficult and complex. Hence, I turn to my colleagues who have been part of this world much longer than I . . . .

Dean Edley's Memo:

The Torture Memos and Academic Freedom

Christopher Edley, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean
UC Berkeley School of Law

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers? Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo?s continuing employment at UC Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

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.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley?s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments?be they left or right or lazy?will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

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.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must?perhaps as an ethical matter??provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. 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?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

April 10, 2008

Full post as published by Balkinization on April 11, 2008 (boomark / email).