I feel obliged to note this. With respect to its opinions on the procedure that must still be followed, it doesn’t sound wholly unlike this. I would have avoided saying, “President Bush and his national security appointees were the deciders,” but that’s only because I find it funny, which is inappropriate given the circumstances.
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55 comments
April 11, 2008 at 2:28 pm
ari
You really want the torture posts under “our thing,” do you? Man, talk about low-hanging fruit. This is practically windfall.
April 11, 2008 at 2:30 pm
eric
I set up the category “our thing” to refer to things having to do with the academic profession. It is a deliberate reference to “cosa nostra.” Never let it be said I lack self-awareness.
April 11, 2008 at 3:21 pm
Vance Maverick
I thought the use of “decider” was a deliberate sneer at the Administration, as if he had referred to the Internets.
April 11, 2008 at 3:22 pm
eric
Which is why it’s inappropriate.
April 11, 2008 at 3:36 pm
ari
Using that nomenclature struck me as Edley wanting to have it both ways: “I’m not going to fire my guy (who’s actually their guy), but I’ve got still got my liberal stret cred intact.” That’s a pretty tough double-move to land, in my view.
April 11, 2008 at 3:41 pm
eric
But he does that with this paragraph:
Which makes telescoping that sentiment into a single word unnecessary. Also, I don’t read it as saying, “I’m not going to fire my guy.”
April 11, 2008 at 3:51 pm
ari
Which makes telescoping that sentiment into a single word unnecessary.
This was my point: the futility of using that single word.
Also, I don’t read it as saying, “I’m not going to fire my guy.”
I should have added a “right now.”
April 11, 2008 at 3:54 pm
Megan
I was impressed that he made such a clear and explicit statement. Good for him. And his reading is very much along the lines of yours, so now we know how the Code of Conduct has been interpreted by someone who had to struggle with this for a while (presumably). They even posted it up front on their website. I like all those things.
April 11, 2008 at 3:57 pm
eric
his reading is very much along the lines of yours
Which is shocking, I know. So many reasonable, intelligent people thought otherwise.
April 11, 2008 at 4:09 pm
Megan
And argued with you unto distraction!
April 11, 2008 at 4:10 pm
eric
Don’t worry, I’m not going to hold my breath awaiting an admission I was right.
April 11, 2008 at 4:19 pm
andrew
I doubt his response will satisfy most of your critics. And besides, while his procedural analysis is quite similar to yours, I read him as more opposed to actually initiating those procedures – the reference to a “potentially chilling inquiry,” for example. If someone’s going to provide the evidence he says is required, it’s going to have to come from somewhere outside of a committee assigned to evaluate it. Perhaps that’s as it should be.
April 11, 2008 at 4:20 pm
Megan
From me? Now I think we’re clear on how people at U.C. will interpret the Code of Conduct, and that it is your reading. I still think there’s room for the Code of Conduct to be decided on the Ethical Principles, but Dean Edley came down squarely on your reading, that he has to be convicted in a law court of a criminal act. I’d love to see the case that lays out whether what Prof. Yoo did meets the criteria for war criminals and how the Code of Conduct applies to that.
But short of a thorough look, I thought that it was great that Dean Edley spoke directly to the problem and said why.
April 11, 2008 at 4:24 pm
eric
From me?
Not so much.
I doubt his response will satisfy most of your critics.
No, of course not. But it does mean my reading was the correct one.
I read him as more opposed to actually initiating those procedures – the reference to a “potentially chilling inquiry,” for example.
Agreed; I did not go there.
If someone’s going to provide the evidence he says is required, it’s going to have to come from somewhere outside of a committee assigned to evaluate it.
That, I didn’t see.
April 11, 2008 at 4:27 pm
eric
squarely on your reading, that he has to be convicted in a law court of a criminal act
Oh, heavens, Megan, that is not my reading nor Edley’s. Let us not go all the way to distraction again but: both of us discussed, in Edley’s words, the prospect of “crucial questions in view of our university mission … : 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?”
April 11, 2008 at 4:31 pm
andrew
That, I didn’t see.
I think I worded that too strongly. I just meant that if there’s not enough evidence now – “that standard has not been met” – for the university to begin an inquiry or “contemplate” beginning one – obviously on the scholarly/professional misconduct side, not on the crime side – some other body, or group of people, or individual, is going to have to gather whatever further evidence there might be.
April 11, 2008 at 4:42 pm
Megan
Dude, I don’t even know what we’re arguing. I’m sorry I misspoke your reading. If I have it right now, a criminal conviction would be an easy route, and scholarly malpractice is another option.
All I mostly wanted to say was that Edley agreed with you and props to him for saying so out loud.
April 11, 2008 at 5:50 pm
LizardBreath
I’m really bemused by his reference to “evidence”. This isn’t a matter of evidence, because what Yoo did isn’t in dispute. The question is does writing that memo, the contents and authorship of which are undisputed, constitute professional or scholarly misconduct at all, and if at all sufficient to justify discipline?
No one’s raising the possibility that “evidence” will emerge that Yoo did something else wrong and will need to be evaluated for plausibility. The facts are clear. What the Berkeley faculty need to do is apply their understanding of the ethical obligations applicable to a scholar and a lawyer, and decide whether the facts constitute a violation of those obligations, and as scholars and lawyers they are competent to do so.
If they don’t go forward with discipline, they’re holding that writing such a memo is not a violation of the relevant professional ethics. If they do, they’re holding that it is a violation. But in neither case are they evaluating evidence in dispute.
April 11, 2008 at 5:54 pm
LizardBreath
To follow up with something I meant to say but on rereading, didn’t, this looks like evasion to me: “We’re not responsible for taking action, because the evidence isn’t there!”
The evidence is there; there’s no further evidence necessary to evaluate the situation. The question is how to apply the standards of professional and scholarly ethics to those facts, and Berkeley is responsible for and competent to apply that standard; a decision to take no action is a decision that Yoo’s actions do not constitute a significant ethical breach.
April 11, 2008 at 6:27 pm
andrew
Technically, there’s at least one more memo out there that hasn’t been released. Mukasey was asked about it just recently; I think it has to do with the 4th amendment, but I’m not sure.
April 11, 2008 at 6:36 pm
andrew
I should add that I hope Berkeley will at least discuss the existing evidence instead of simply asserting that there’s not enough now to begin a discussion.
April 11, 2008 at 8:15 pm
Rob_in_Hawaii
I know that on this and the other thread I’m not the first to suggest that universities respect not only academic freedom but also due process. In fact, I believe that was Eric’s point to begin with.
No matter how heinous Yoo’s conduct may be, he is still covered by the UC faculty collective bargaining agreement and should not be terminated without following the procedures explicitly stated in that contract.
To begin shortchanging the rule of law for the sake of expediency is to side with the reasoning of the very clowns that got us “enhanced interrogation techniques,”
Abu Ghraib, and Guantanamo.
Call me old-fashioned, but opting out of due process for emotion-based “justice” is too close to lynch law for my tastes.
April 11, 2008 at 8:31 pm
ari
Rob is one of us! Just don’t let the good people at Unfogged hear about this, Rob. They’ve got pitchforks and torches at the ready.
April 11, 2008 at 8:38 pm
Rob_in_Hawaii
Ari, I used to be in the Teamsters Union, and we were all about due process (when it suited us in an employee dismissal case at least).
Pitchforks and torches don’t intimidate Teamsters, why should they bother those in the ivory tower?
April 11, 2008 at 9:22 pm
ari
I, too, was a Teamster. But a long time ago. During high school, I pushed a broom in a warehouse that was a Teamsters’ shop. I made $28/hour in 1985, while a sophormore. The Union forever, defending our right…
April 11, 2008 at 9:28 pm
andrew
Mike Davis had an interesting experience in the Teamsters. According to an old Lingua Franca article:
April 11, 2008 at 9:38 pm
ari
I miss Lingua Franca. Sort of.
April 11, 2008 at 11:55 pm
Ben Alpers
I miss Spy Magazine, too. Except for the Tony Hendra years.
I was in Berlin at a conference and beginning the new semester in Leipzig last week, so I apparently missed all the tenure-revocation ‘n’ torture talk around here.
Can we compromise and agree to piously demand that all conservatives denounce Yoo and call for his firing? War crimes have to be at least as bad as employing the phrase “little Eichmanns,” no?
April 12, 2008 at 5:01 am
CharleyCarp
Here’s an email on the subject I got from a colleague:
April 12, 2008 at 5:08 am
CharleyCarp
I have no objection whatsoever to due process for Prof. Yoo. I do object to any benefit of the doubt as to what the purpose of the memos was — something not addressed by the Dean — or on the question whether Yoo’s conclusions or scholarship are arguably valid. His nominal assignment was to tell what the law is. He intentionally did not do so, telling them that it was what it very clearly is not, in order to immunize and facilitate criminality. This was his actual assignment.
Sorry to go all Godwin, but if Hitler had hired a UC professor to prove the historical validity — from the middle ages to today — of stories of Jews using the blood of Christian children in some secret ritual, and the prof did so, with a series of outright fabrications, then I think it would be perfectly reasonable to hope that the university would get the due process machinery in motion. And it would deserve pitchforks it it didn’t.
April 12, 2008 at 7:23 am
silbey
or on the question whether Yoo’s conclusions or scholarship are arguably valid.
I haven’t seen anyone here argue that the conclusions were valid.
April 12, 2008 at 7:30 am
LizardBreath
I take “arguably valid” as being the short form of “I certainly don’t agree with him, but his arguments are within the realm of reasonable disagreement which it would be unreasonable to describe as professional misconduct.” And people are approaching that position.
I’m with Charley, here — the arguments in the memo are not only arguments that I disagree with, but that I would not consider even “arguably valid”.
April 12, 2008 at 7:41 am
CharleyCarp
“Arguably valid,” Silbey. The Dean’s statement casts Yoo’s analyses as controversial, but a legitimate point of view offered by a scholar who sincerely believes them.
In my comment at 5:08, I meant UC history professor. Would you call that professor historian? Would you sit quietly if the head of the department said that there are many different views about what happened in the past? Is Well, you know, we have to keep the academic freedom to search the past and go wherever the facts lead us in any way valid if, as in my hypothetical, the guy is making up evidence to support a preconceived, monstrous policy?
April 12, 2008 at 7:42 am
CharleyCarp
Pwned, as the kids say. I should type faster.
April 12, 2008 at 7:59 am
eric
if, as in my hypothetical, the guy is making up evidence to support a preconceived, monstrous policy
I think, in this hypothetical case, one would have to take it to the appropriate committee of the Academic Senate, which would probably charge a panel to accumulate evidence and write up an analysis. And indeed, this is what’s required in any such hypothetical case.
April 12, 2008 at 8:03 am
CharleyCarp
And as to Prof. Yoo’s sincerity, I’ll continue my UC history prof analogy. (I’ll get you people to ban analogies yet). Suppose the UC history professor referred to some particular incident in Russia in 1908, and cited a particular document from the Imperial Archives for the proposition that Jews had killed Christian Russian children in that incident to get their blood for ritual use. Now suppose further that you go look at the document cited and it’s a report to the Tsar from some underling saying, on the cited page: The continued killing of Jewish children in the current pogrom is necessary to satisfy the bloodlust of the local peasantry.
This is exactly Yoo’s footnote 13. The correct reading gives the game away, but the fabrication, along with a scholarly looking citation, make the specious argument appear to be arguably valid.
April 12, 2008 at 8:12 am
CharleyCarp
Eric, I have no argument with yours of 7:59. Nor have I any doubt that as a legitimate historian, you’d feel moved to respond when people, whether from some kind of misplaced moral relativism or support for the ultimate ends of the work, went around saying that sometimes scholars draw different, even repugnant, lessons from the past.
April 12, 2008 at 8:57 am
silbey
“Arguably valid,” Silbey.
“Anyone here,” Charley. Here being the “Edge of the American West.”
I don’t see the Dean posting here.
April 12, 2008 at 8:59 am
silbey
And people are approaching that position.
Uh, how about we argue about positions here that people actually hold, rather than ones they may (or may not) be approaching?
April 12, 2008 at 9:18 am
CharleyCarp
Did I say anyone here was arguing anything? I did not. Your original comment was a non sequitur, and the “here” wasn’t worth the cost of the pixels to respond to it.
Your comment to Liz is, imo, pure trollery.
I’ll participate no further in this silly side-track. Bye.
April 12, 2008 at 9:26 am
LizardBreath
The deal is that if the position isn’t “arguably valid”, it’s unambiguously a violation of professional ethics. If everyone ‘here’ agrees that Yoo’s positions weren’t “arguably valid”, then the argument that Berkeley should take disciplinary action gets much simpler.
I am not clear that everyone arguing about this has agreed that Yoo’s positions are not “arguably valid”. If they were not, they were violations of the Pennsylvania Disciplinary Code of Professional Conduct Rule 1.2(d) (which I think applies — I believe he’s admitted in PA. If not, most state ethical codes are the same in this respect):
April 12, 2008 at 10:00 am
ari
LB, I’m pretty sure that I agree with you. Or at least, as I said over at Unfogged while arguing with D2 and many others, I’m thrilled to defer to your (or Charley’s) expertise on the subject. But I’m not sure how my deference in this venue or there, how, in other words, my agreeing that Yoo’s position isn’t “arguably valid,” then allows us to short-circuit the procedures at Boalt. (Which, I should hasten to add, I’m also not sure you’re saying.)
In other words, I think, as I’ve said all along, that Boalt should convene a committee and look into this. I would imagine that if that happens, people with your level of expertise would be seated on the committee in question. Which committe, I would then hope, will make it possible for Boalt to discipline Yoo. In the meantime, my thinking that he’s wrong, or a villain, or the latter-day equivalent of a blood libel peddler, doesn’t seem to mean very much. At least so long as I also think that the procedures are valid and that crumpling up the guidelines and tossing them on the fire is a dangerous precedent. (Again, I’m not trying to suggest that this is what you or Charley are saying.)
April 12, 2008 at 10:07 am
Matt W
I’m glad that the Dean is stating the issue, but I find this unconvincing:
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.
Given that the role of the Bush OLC has been described as giving “advance pardons” for the actions described (by Jack Goldsmith, who should know), it seems much different from an ordinary attorney-client relationship. Yoo just didn’t advise people about what they could do, he made it impossible to prosecute them for it. That makes him an accomplice.
I also agree that at the end the dean seems to (1) acknowledge that breach of professional ethics is relevant and (2) claim that there isn’t substantial enough evidence of a breach of professional ethics to warrant an inquiry by the university. As LB has pointed out, there’s buckets of evidence about what Yoo did. If the dean’s point about the breach of ethics is that it’s not up to the university to decide whether a breach of ethics has been committed — it’s up to, say, the Bar Association — well, that would be a defensible position, but he didn’t state it clearly at all.
April 12, 2008 at 10:22 am
LizardBreath
And I’m completely sympathetic to a statement that “Our procedures require that such decisions be made by a faculty committee, and the relevant committee hasn’t acted yet.” Whatever the normal process, it should be followed.
I would be understanding of, although disappointed by and thinking it was bad policy, a statement that, as Weiner suggested, “the university is not competent to opine on the type of breach of professional ethics that Yoo’s been accused of. We’ll act only after a conviction, a disbarment, or in the case of a short list of scholarly misdeeds like plagarism.”
I get oppositional at the dean’s statements about evidence. The evidence is in.
(Come to think of it, this comment is pretty much all “What Weiner said”. So, what Weiner said.)
(And no one should be deferring to my expertise. I am the merest of practitioners, not someone engaged in legal scholarship on ethics or anything else.)
April 12, 2008 at 11:24 am
Cala
I’m not sure, like Weiner, where exactly the dean comes down on the ethics breach, but I think that practically speaking, it’s going to be hard to make the case that he violated professional ethics while he’s still a member of the PA bar.
April 12, 2008 at 11:38 am
LizardBreath
Here, I’m way out of my depth. I don’t have a lot of direct experience with state bar disciplinary procedures. So take this for what it’s worth.
That would be my second option, the one I’d understand but would be disappointed by: deferring to the PA state bar. First, I’d say that if that’s what’s going on, it should be explicitly stated. Second, I don’t think the deference is necessary — there’s not a formal relationship between Berkeley and the PA state bar that requires Berkeley to defer on matters of legal ethics. Third, I wouldn’t expect (in a descriptive sense, not a normative sense) a state bar to take action on something like this in any kind of timely fashion. My sense of how these usually work is that disciplinary action is taken in response to a complaint from a client, or from a court; without an aggrieved client or court, an ethics complaint from a concerned citizen is unusual, and I’d expect a fair amount of internal debate as to whether it’s really the PA bar’s business getting into this.
Don’t get me wrong, I think they should act. But I think relying on their failure to act as a positive statement that no ethical breach took place would be mistaken.
April 12, 2008 at 11:56 am
LizardBreath
Because I can’t shut up (look, I haven’t been commenting anywhere all week), a thought experiment on why deferring to the PA state bar shouldn’t be automatic. It would have been perfectly plausible for Yoo not to have a license in any state — plenty of law professors don’t. At that point, he couldn’t possibly have been free of all professional ethical obligations, but Berkeley would have had to determine those for itself, with no state bar to defer to.
April 12, 2008 at 7:26 pm
matt w
Scott Horton also dislikes that passage from Edley, and he knows stuff. (I think I brought up his reference to Alstoetter on previous threads.)
See also Jack Balkin, who thinks the question is harder, and the links therein (on, among other things, the question of who Yoo’s client was).
April 12, 2008 at 8:26 pm
Michael H Schneider
I don’t see why Berkeley couldn’t hold its professors to a higher standard of cometence and ethics than PA might require. That is, even if PA decided to do nothing, or decided to impose no discipline after an investigation, Berkeley could still investigate and decide that while Yoo met PA’s standards it didn’t meet Berkeley’s. Of course, if PA ecided to disbar him, I’d think it would then necessarily follow that he wasn’t fit to join the army and kill women, children, houses and villages. Or teach ConLaw.
April 12, 2008 at 11:42 pm
Colin
I strongly support Rob’s comments, but also have to say that Brad has honed his arguments, especially this one http://delong.typepad.com/sdj/2008/04/chris-edley-on.html vs. Edley. Edley, by going beyond Eric’s case and rashly trying to draw a line that automatically de-culpifies Yoo, ends up undermining his cause. Horton effectively pursues Edley on that.
April 13, 2008 at 2:18 pm
Cala
I didn’t say that Berkeley couldn’t, I said that there’s a practical problem. The code says ‘professional ethics’, and I think there’s a case to be made that Yoo crapped all over them. And surely Berkeley can say ‘by professional ethics, we don’t mean advocate for torture in your external activities’
(And, LB, looking at the code I think by ‘professional ethics’ they do have to mean ‘ethics which apply to his external activities’, because a) that’s what they were and b) in this case, were they internal academic scholarship, it’d be protected academic speech. (Like a couple philosophers I know who defended torture, under some circumstances.) )
But it’s a case that looks weak when Yoo can say wank, wank, witch hunt, the memo passes the scrutiny of the bar, what do a bunch of profs know about professional ethics anyway since the actual professional organization doesn’t seem to care, woe to me the conservative martyr.
I mean, we have a number of the lawyers over at that other site smugly saying ‘Yoo is shunned by all of Middle-earth and lawyer kind’ and that turns out to mean ‘well, I wrote a strongly-worded comment but he probably can’t be disbarred, because lawyers write bad arguments all the time. but you academics suck, because we wouldn’t stand for this, by which we mean that I cluck my tongue fiercelywhen I write this comment.’[1]
I think Berkeley could do it, but I can see why practically it’s going to be hard to push for absent a lot of alumni pressure.
[1] Mean? Yes. Uncharitable? Not really. Uh, neener.
April 13, 2008 at 3:13 pm
LizardBreath
but he probably can’t be disbarred, because lawyers write bad arguments all the time.
The thing is, I want to strongly distinguish between ‘can’t be disbarred’ and ‘probably won’t be disbarred.’ In my judgment, he very clearly could, and should, be disbarred. The Disciplinary Rules applicable prohibit his conduct. The Disciplinary Board of the Supreme Court of Pennsylvania, on the other hand, I don’t know anything about as an organization, so I don’t know what it’s likely to do and it isn’t the sort of organization that I’d expect anyone else to defer to absent a clear relationship between the two.
I think the Disciplinary Board should act, and should be ashamed of not acting if it doesn’t. But I don’t think Berkeley should take the Disciplinary Board’s failure to act as an authoritative statement that Yoo’s actions don’t constitute professional misconduct. Such deference would be understandable (I think mistaken, but understandable), but if that’s what’s going on, Berkeley should explicitly state it.
April 13, 2008 at 9:58 pm
urbino
I made $28/hour in 1985, while a sophormore.
Jesus Haitch. I made $3.50 an hour at Dairy Queen in 1985. And I was a senior. A senior, I say!
April 13, 2008 at 10:58 pm
ari
Well, if you were a senior, you were still cooler. Especially if you had a car.
April 14, 2008 at 8:07 am
silbey
Your comment to Liz is, imo, pure trollery.
Uh, how so? It’s a hard enough discussion to have without having to defend arguments that, you know, one isn’t actually espousing. I’m not sure why that comes across as “trollery.”
In other words, I think, as I’ve said all along, that Boalt should convene a committee and look into this. I would imagine that if that happens, people with your level of expertise would be seated on the committee in question. Which committe, I would then hope, will make it possible for Boalt to discipline Yoo. In the meantime, my thinking that he’s wrong, or a villain, or the latter-day equivalent of a blood libel peddler, doesn’t seem to mean very much. At least so long as I also think that the procedures are valid and that crumpling up the guidelines and tossing them on the fire is a dangerous precedent. (Again, I’m not trying to suggest that this is what you or Charley are saying.)
Agreed.