Ezra Klein’s friend asks, “What is tenure for … if not the protection of unpopular ideas?” Ezra replies,
But tenure doesn’t protect those with unpopular ideas, it just makes them harder to fire, and thus raises how unpopular an idea has to be before it merits termination. So on the one hand, firing someone with crackpot notions about tax cuts paying for themselves isn’t really worth the trouble. On the other hand, if, say, Greg Mankiw called for the extermination of the Jews tomorrow, Harvard and MIT would direct their physics departments to come together and create a time machine in order to help them fire Mankiw last week.
Because Ezra is a self-described wonk, I’m sure he will appreciate my taking some time to explain all the ways in which this is incorrect. And because he wants to sack John Yoo (author of the newly released “torture memo to top all torture memos,” as Marty Lederman writes) he will probably want to know that at the end of the post, there is still a route to do that, if he so wishes.
First, we’re talking about tenure as an instrument of academic freedom. And in that guise, tenure does not exist to protect unpopular ideas—or rather it does, but that description is imprecise. Tenure, considered as an instrument of academic freedom, exists to protect scholarly discourse from the influence of powerful forces outside the discourse.1
So now we see already a problem with Ezra’s concerns. It’s not the unpopularity of an idea, but whether it belongs to a scholarly discourse, that determines whether it’s protected under academic freedom. The Hypothetically Genocidal Mankiw would not be protected under academic freedom, because the question of whether and when to exterminate all the Jews is not properly part of scholarly discourse, either for an economist or, so far as I know, any other kind of academic. The HGM might be protected by free speech law. And I believe he would, unless he began making his HG statements in the classroom.
So okay, academic freedom ≠ freedom of speech. Some things that are protected under one are not covered by the other. This is because academic freedom has different origins than freedom of speech. It derives from a desire to protect scholarly discourse. Thus, one can invoke the cloak of its protection only insofar as one participates in a scholarly discourse. PZ Myers can say what he pleases, in the classroom or out, about evolution being independent of intelligent design, because that is one of the things the community of competent biologists have decided one should be able to say—and they have decided it on the basis of research, which in turn has been evaluated according to set procedures.
The question before John Yoo’s university colleagues is, then (if there is a question) not about the unpopularity of Yoo’s opinions.
Nor is it one of whether his opinions led to the commission of war crimes—sorry, Megan, the UC is not in the business of deciding who’s a war criminal and who isn’t. Actually, come to think of it, I’m not sorry. The UC shouldn’t be in that business. Which means I also disagree with Henry Farrell when he writes, “this is not, in the end, an issue of academic freedom. That is, it doesn’t concern Yoo’s ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the US government to facilitate war crimes.” Again, I do not think the University of California is a fit agency to determine even a prima facie case as to who might be a criminal. That job belongs to a grand jury or similar institution.
Nor is it a good idea to invoke, to borrow a now-loaded word, quaint clauses about moral turpitude. I can see why Brad DeLong is squeamish about that particular approach to the subject. Start adjudicating “moral turpitude” and it’s not long before freethinkers and homosexuals are for the chop, too.
But scholarly discourse, which is the basis for the protection of academic freedom and tenure, is the kind of thing the UC should adjudicate—not only the kind of thing it should adjudicate, but the kind of thing it does adjudicate all the time. When people are hired, tenured, promoted—at the UC, there is post-tenure review, too—scholars both inside and outside the university are consulted and asked whether the professor in question has made productive contributions to scholarly discourse.
The question before the UC, if there is a question, is one of whether these procedures, with the new evidence of this professor’s legal work before them, would reach a different conclusion in answer to that question—and whether that conclusion would be so different that the protections of academic freedom should be stripped from this professor on the basis of his having committed a kind of scholarly malpractice. As Timothy Burke points out, an investigation to impose such a penalty was carried out in the case of Ward Churchill; Burke might also have mentioned Michael Bellesiles, whose work “set off a controversy which, beginning to some degree as a debate involving hot political issues, became something else: a dispute over perceived failures of scholarly care and integrity in the documentation, presentation and analysis of archival sources,” to quote the report in his case.
I have said repeatedly that this is the question, “if there is a question.” I am not one of the community competent to raise this question; the constitutional lawyers are. I would be surprised if they weren’t considering the case carefully. To quote another authority competent to make judgments in cases like these, “It’s a matter of time…. These things take time.”
1I know, all the Foucauldians just started shouting at their screens. I will not take up their concerns here, but urge them instead to read Thomas Haskell’s treatment of these issues in Objectivity is Not Neutrality, my memory of some of which I’m drawing on here.
111 comments
April 7, 2008 at 11:49 am
Megan
the UC is not in the business of deciding who’s a war criminal and who isn’t.
Since I went to law school, I know enough to get really embarrassed for laypeople arguing law. There’s an awful lot between the words you see in statutes and where the law has arrived at. Intuitive understandings of plain meanings very often aren’t helpful. And since I went to law school and determinedly took every environmental law class I could find and as little of anything else as I could manage, I know for sure that I am basically a layperson. I’m not qualified to interpret criminal law, war law, labor law, Con law or administrative law.
But I do think there is a case to be made that UC is in the business of deciding who is a war criminal. The UC is an arm of the state. It is the business of the state when one of their employees has committed war crimes. UC may not have the right powers to conduct that investigation (although seriously. If they don’t have the knowledge, who does?), but I think the fact that U.C. is an agent of the people of California does impose a duty on them to make sure they aren’t employing war criminals. U.C. clearly doesn’t have any powers of punishment, but they have all the authority they need over their own hiring. Since they are answerable to ME (and the rest of everyone here), they absolutely should decide whether they are hiring a chief originator of American torture on my behalf.
I still think Boalt Hall is best situated to go through these arguments and tell us which ones work. I wish they’d issue a statement on this.
(Incidentally, I took an oath to the California Constitution when I was hired on at the state. You guys don’t do that?)
(For consistency, I would feel less strongly about this if Prof. Yoo were at a wholly privately funded university.)
April 7, 2008 at 12:04 pm
eric
The UC is an arm of the state. It is the business of the state when one of their employees has committed war crimes.
Yes, but the UC is not the arm of the state that does that business—there’s an attorney general whose job it is to do that.
But even before we get there, Megan: Yoo is alleged to have committed war crimes. You say, “when one of their employees has committed war crimes.” We are not at “when.” We have a justice system to make that determination. The UC isn’t part of the justice system.
You write, “seriously. If they don’t have the knowledge, who does?”
I think reflection will assure you that you don’t mean that. We have people on faculty here who know lots about drug law and looking at a brief could say, I think x is guilty of trafficking. But you wouldn’t want that to amount to a conviction, would you? We don’t do rule by philosopher-king here.
The UC could sack someone who had been convicted of a crime. It can’t sack someone who you, or many other people, think ought to be convicted, but hasn’t been.
We do take an oath. Again, Yoo hasn’t been proved to have violated it.
This is the sticking point: there’s due process in this country. The UC isn’t part of it. And anyway it begins with presumption of innocence.
April 7, 2008 at 12:08 pm
Megan
Again, I do not think the University of California is a fit agency to determine even a prima facie case as to who might be a criminal. That job belongs to a grand jury or similar institution.
Do you mean a legal grand jury, appointed by a court? Or the Alameda grand jury? Dude! All respect to grand juries, but they’re basically people pulled off the street and granted some mild investigatory powers. Sure, they should also look at this, but I’m thinking that UC has FAR more ability to evaluate Yoo’s memo and demonstrate the results of that.
U.C. can’t convict Yoo of any crime. Nothing they produce will lead directly to any of the legal consequences for war crimes. But they absolutely can and should investigate whether he meets their qualifications for continued hire (including fealty to the Constitution and violation of international treaties), and their in-house knowledge is fully adequate for that.
If they do a nice job pulling together the evidence and story for his war crimes, it would be a good starting place if Yoo is ever tried.
April 7, 2008 at 12:18 pm
Megan
Was working on my second comment before I read yours.
But again, I think you’re confusing convicting him of a crime with evaluating whether he has committed crimes and deciding whether to continue his hire. U.C. can’t imprison him, or fine him, or write him a ticket. But they have more than enough expertise to determine whether his published work was a crime (far more than I have) and decide whether the people of the state should employ him.
Due process is meant to protect people of being wrongly convicted of criminal or civil law. That’s because it is so damn terrible to wrongly lock up an innocent people. I am all for due process and would want a tenure hearing for Yoo to have a hefty dose of it. But you don’t get full due process for a labor dispute. Sometimes you don’t get any. Since U.C. isn’t in any danger of criminally convicting Yoo, they can go ahead with whatever evaluation they do.
(For all I know, it is illegal for California to hire war criminals. I’m totally making that up, but there are parallels to felons teaching kids.)
April 7, 2008 at 12:22 pm
Cala
They might have the ability, but they don’t have the right. The grand jury doesn’t get its power because all the people on it are super-versed in the law, but because that’s how we’ve legally decided to grant people mild investigatory powers. ‘The government’ is a rather big institution, and not all of its parts get to try people. (Think of that the next time you’re at the DMV; or read what happens when the DMV thinks of itself as immigration enforcement.)
Eric, this is a really great analysis. Infuriating because he goes in the file of Motherfuckers Who Have Tenure, but until a court shows that Yoo has done something wrong, I can’t see anyway for UC to get rid of him that isn’t either blatantly unfair or a horrible precedent. UC may ‘work for you,’ Megan, but it also has to work for people who think that the Earth is 6000 years old and that those biology teachers shouldn’t be teaching otherwise, and I don’t want to give those guys any ammo.
The memo may be immoral, but that’s not a condition of hiring (nor a condition I’d like to see implemented, as someone who teaches philosophy of religion, because what other people think of as immoral probably will bite me in the ass at some point); the memo may be shoddy scholarship, but it wasn’t presented as academic scholarship, and frankly there’s a lot of tenured people with shoddy scholarship; and it isn’t an academic freedom debate at all, because he wasn’t writing in his capacity as a law professor.
UC isn’t in a position to determine whether Yoo broke international law. It ain’t in their charter.
April 7, 2008 at 12:37 pm
silbey
But again, I think you’re confusing convicting him of a crime with evaluating whether he has committed crimes and deciding whether to continue his hire.
Uh, I thought that in American society “evaluating whether he has committed crimes” was done by convicting someone of a crime.
I’d be really uncomfortable giving any state institution the power to decide that someone was guilty of a crime and firing them as a result of that decision. It hasn’t been that long since people got fired in Hollywood by companies drawing exactly that conclusion.
April 7, 2008 at 12:57 pm
Vance Maverick
How would you feel, Silbey, about an employer (state institution or other) deciding that an employee has done something wrong — something that’s both a violation of the terms of employment and a crime — and firing them for that? Let’s say, deciding that a stockroom clerk has stolen chemicals. It’s my belief that the employer can legitimately fire the employee under these circumstances, and doesn’t need a conviction. (It might also be the employer’s duty to report the same action for investigation by legal authorities, of course. And if the accusation is without merit, the employee has legal recourse. Etc.)
But this is academic — I suspect that Yoo’s actions, however reprehensible, are not violations of his obligations to the Regents in this case.
April 7, 2008 at 12:58 pm
Megan
People get fired for that every single day. Someone takes twenty dollars from the register, the boss fires them, no one calls the cops, no one is convicted of anything. If I were fired for molesting the interns but I weren’t also charged with sexual assault by the county, I would be in violation of my terms of employment and never convicted of anything. If the justice branch of government isn’t involved, no one is convicted of a crime. But that doesn’t mean people aren’t fired for what the boss determines is a criminal act. If they think they were wrongly fired, they can apply for redress through the criminal system.
Way I see it, Cala, holding a public in-house evaluation of whether Prof. Yoo’s behavior violates the U.C.’s conditions of hire is the least the state owes us. It might come out in Yoo’s favor, in which case maybe the current protections of tenure are too broad, and are covering not just academic scholarship but also war criminals.
I am not worried that it would be unfair or singling him out or setting precedent, because what he did was very extreme. Y’all are like, we can’t handle the outliers, so we should wait for someone else to act. I’m like, we better handle* the outliers and we better do it publicly, or we forfeit our integrity, which is not actually just ours as one law school but is also the integrity of everyone in California. And if other people want to come along afterwards and take advantage of the precedent, the thing to do then is point out that they aren’t outliers.
*Where handle means create a public record of a thorough examination of the question and why they chose whatever action they chose.
I can’t see if other people replied and I’m out for the afternoon anyway.
April 7, 2008 at 1:00 pm
eric
Vance, there’s a difference between what “an employer” can do, and what a university or, specifically, the UC can do in the case of a tenured professor. The UC faculty code of conduct speaks specifically of “conviction of a criminal act.”
April 7, 2008 at 1:01 pm
eric
covering not just academic scholarship but also war criminals
It’s really, really important, Megan, that we keep in mind that John Yoo is not a war criminal. You think he is. But that don’t make it so. If he were, the UC could fire him in a snap.
April 7, 2008 at 1:06 pm
Vance Maverick
My point, Megan, is that the boss is not “determining” that the theft “is a criminal act”. The boss is determining that the employee did something that’s unacceptable in their (contractual) employer-employee relationship. The same act happens to be a crime, but determining that takes a lot more work.
Eric, we’re not disagreeing. The big failure of the analogy between the employee stealing and Yoo writing torture memos is that the latter doesn’t (as far as I understand) violate the terms of Yoo’s employment. A conviction, as you say, would change matters.
April 7, 2008 at 1:07 pm
herbert browne
Re ..”they absolutely should decide whether they are hiring a chief originator of American torture on my behalf.”
Would it better to say that he’s “an apologist for legalizing American torture”?.. because the de facto existence of torture at the hands of various branches of American law enforcement is well-known (& part of personal history, in my case). ^..^
April 7, 2008 at 1:19 pm
silbey
How would you feel, Silbey, about an employer (state institution or other) deciding that an employee has done something wrong — something that’s both a violation of the terms of employment and a crime — and firing them for that?
I’d feel really uncomfortable about an employer declaring that someone is a criminal for reasons that may not have *anything* to do with their job requirements, and then firing them.
April 7, 2008 at 1:20 pm
Megan
You think he is. But that don’t make it so. If he were, the UC could fire him in a snap.
I actually don’t know what a war criminal is and whether Prof. Yoo counts. But the U.C. has the capacity to do that evaluation. They don’t have to wait for someone else to do that evaluation. They can look at the standards for that, apply them to Yoo, say, “yep, it is overwhelmingly likely that he is a war criminal, but we don’t have a statute on our books for that so he stays.” Or they could say “damn, it is close and we aren’t going to fire in a close case so won’t someone please prosecute him?” Or they could say “he meets these elements for these reasons and based on this evidence and can’t be part of our institution.”
And if they show that his acts would constitute war crimes and he would be very likely convicted in a criminal case, but U.C. can’t fire someone for that, then we will have tracked the problem a little closer to its source. I want to see the whole chain and U.C. is plenty capable of providing it.
April 7, 2008 at 1:21 pm
Cala
Megan, Vance, tenure is doing a little bit of work here. The reason a stockroom clerk could be fired for theft is that employment’s at-will. If the employer had to prove theft before they could fire him, they would have to, and they wouldn’t be able to say ‘we had an internal hearing and we decided we knew what theft looked like. The boss hasn’t made a determination that there has been a criminal act in any of your examples; the boss has determined there are grounds for firing a person that need not rise to the level of a criminal conviction. I think UC’s code would require him to be convicted of a war crime for them to revoke his tenure; they include provisions against, basically, screwing the undergrads, but nothing about not writing memos that support torture.
The second thing is what UC faculty code does writing a badly researched memo violate? The closest thing in the code is research integrity, but I think that would require something like plagiarism, not mere incompetence (post-tenure, at least)
April 7, 2008 at 1:25 pm
eric
if they show that his acts would constitute war crimes and he would be very likely convicted in a criminal case, but U.C. can’t fire someone for that
I’m gonna go out on a limb here and say I’m pretty sure that the presumption underlying this conditional is correct: the UC can’t fire a tenured professor based on the probability of his conviction for a crime, as determined by a group of professors.
April 7, 2008 at 1:29 pm
Cala
I actually don’t know what a war criminal is and whether Prof. Yoo counts. But the U.C. has the capacity to do that evaluation. They don’t have to wait for someone else to do that evaluation.
He is not yet a war criminal. (It is not clear to me whether writing a memo is sufficient to convict him of anything, either, but unlike you, I’m not assuming that he is a war criminal as a result of my not knowing.) If he were a convicted war criminal, his tenure would be revoked. No question.
They do not have the capacity BECAUSE THEY ARE NOT A COURT, and if they wish to fire him for being a criminal, yes, they do have to wait for someone else to do that evaluation. That’s how the whole fucking thing works. If they want to fire him for some other violation, they can, but then they’ll have to figure out what non-criminal violation he’s committed and it doesn’t look like, from what I can see of the handbook, that anything he’s done qualifies.
Absent a conviction. Which would have to come from a court.
I wish there was a way to get rid of him but the most they’re going to be able to do is to pressure him to resign.
April 7, 2008 at 1:30 pm
ari
the UC can’t fire a tenured professor based on the probability of his conviction for a crime, as determined by a group of professors.
Thank the gods. Though, come to think of it, faculty meetings might become much more interesting if the above weren’t true.
April 7, 2008 at 1:30 pm
Cala
If we’re talking probabilities, I’d be willing to bet the guy won’t ever be prosecuted, let alone convicted.
April 7, 2008 at 1:31 pm
ari
Cala, if you find someone willing to take that bet, please send them my way: I’ll offer huge odds that you’re absolutely correct. Which makes me want to cry.
April 7, 2008 at 1:35 pm
Megan
If it is true, that would be a reasonable conclusion for that investigation. If it is also true that that conclusion holds in even very extraordinary cases like war criminality (with the case clearly established) then U.C. can decide what to do next. That may mean amending the faculty code of conduct. But they should very clearly and publicly lay out the case and what they are balancing. U.C. can and should do that, and they don’t have to wait for another body to act. A very tiny piece of my Californian identity is at risk and I want to know the facts and reasons.
April 7, 2008 at 1:35 pm
Cala
I know. I don’t want to come off as defending Yoo here, because the whole thing makes me sick.
And part of me hates the procedural response, but how’s the line go? And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat?
Plus, I don’t like arguing that we don’t need due process on people we don’t like because we can just see they’re guilty, because that looks like the reasoning Yoo & co. would use. Even if we’re right that they’re guilty.
April 7, 2008 at 1:36 pm
Megan
This time I really have to go. Have a good afternoon!
April 7, 2008 at 1:43 pm
Cala
‘Even extraordinary cases like war criminality?’ For the eleventeenth time, he hasn’t been convicted of anything. If he were, it wouldn’t be an extraordinary case.
How do you imagine this thing going? A dog-and-pony show where they say, hey, if you were charged and permitted to bring a defense and we actually had the relevant evidence beyond one memo,and actually had a hearing, it would be likely that you might be found to have aided war crimes, so while we can’t fire you because none of that has happened, we can say we held a press conference? How does that do anything except turn Yoo into a martyr? Found innocent after a witchhunt by his own university, &c.
How do you imagine them amending the code? I get the anger, I get the ranting, but words mean things, and how do you word the code? Suspicion of crime of moral turpitude? Suspicion of having committed war crimes? Conduct unbecoming a senior faculty member?
Pressure the guy to resign or buy him a hooker and get it on tape.
April 7, 2008 at 1:45 pm
eric
A very tiny piece of my Californian identity
I really, really hope that even this tiny piece of your Californian identity will come around to recognize that really, the UC shouldn’t be acting like a court. It’s a wonderful institution, but it ain’t imperium in imperio.
Or, what Cala says, only she says it more briskly.
April 7, 2008 at 3:43 pm
Matt W
I have a semantic complaint with these statements:
He is not yet a war criminal.
It’s really, really important, Megan, that we keep in mind that John Yoo is not a war criminal.
I agree with Cala and eric’s statements about tenure and why Yoo may not be fireable (at least so far, I got halfway through the thread before I went down to post), but these statements are confused. Yoo is not, or not yet, a convicted war criminal. If he is a war criminal, then he is already a war criminal. Because a war criminal is someone who commits war crimes, not someone who is convicted of them.
The legal system (and here that includes UC) can’t treat someone as a war criminal until he’s convicted. The rest of us can, however, act on our best evaluation of whether he’s a war criminal. For instance, another university that was deciding whether to hire John Yoo would be perfectly within its rights to consider whether he is a war criminal. Saying “He’s not a war criminal because he wasn’t convicted” just doesn’t fucking cut it.
Or are you willing to say that O.J. isn’t, and never will be, a murderer? What about Lee Harvey Oswald? He wasn’t convicted of anything either, so he can’t have been an assassin. Roy Bryant and J.W. Milam weren’t murderers either.
In short, give me a fucking break. Say “He’s not a convicted war criminal” all you want — it’s what’s relevant to this question. Don’t try to pussyfoot around the question of whether he is a war criminal, because it is an EXTREMELY IMPORTANT QUESTION whether our government engaged in a conspiracy to commit war crimes. A neglected one. It implicates you and me, and we don’t get to kick the can down the road by saying “That’s for the courts to decide.”
Uh, I thought that in American society “evaluating whether he has committed crimes” was done by convicting someone of a crime.
That’s how the legal system decides. But you and I can make up our own minds, and we should. If people hadn’t independently evaluated whether the Tulia defendants had committed crimes, but relied on the courts’ convictions, then lots of innocent people would still be rotting in jail.
So: John Yoo should have the procedural justice that he denies everyone else. In the long term, he should be in a prison cell in the Hague; in the short/medium term, I’m pretty sure he should be disbarred (and I assume he could then be fired); but UC shouldn’t try to fire him without due process, because he’s not a convicted war criminal. But that doesn’t free us of our epistemological obligations.
April 7, 2008 at 3:51 pm
eric
Okay, Matt, two points. I see you concede that the question of whether he’s legally a war criminal is relevant here, and therefore we should be saying that legally he is not a war criminal. Just as legally O.J. Simpson is not a murderer.
But I maintain a further agnosticism: I don’t know John Yoo is a war criminal. Were I on a jury trying his case, I would spend a lot more time looking at evidence, and considering instructions about how to apply the law, than I have. And if I had served on such a jury, and we had not reached a determination to convict him, but I disagreed with that, I would feel comfortable saying, “although legally he is not a war criminal, I believe him to be one.”
So: John Yoo should have the procedural justice that he denies everyone else.
Yes, he should. Because otherwise he’s not wrong, or a criminal, is he?
April 7, 2008 at 3:56 pm
SEK
Did I just attend law school or sit through my first tenure review? Can’t tell, but appreciate the (horrifying, but edifying, but really, really horrifying) education.
April 7, 2008 at 4:13 pm
eric
horrifying, but edifying
Really? You didn’t know all this already?
April 7, 2008 at 4:26 pm
Megan
I’m glad Matt W. came in with one of the points I was going to make. I don’t know what they are, but I am positive there is a definition of the elements of a war crime. If I knew those, and I understood the usual standards for applying them, and I knew what Yoo had done, I could have a damn good idea whether he is a yet-unconvicted war criminal. God knows we wouldn’t want to go by my judgment on that, but I would be very confident about the clearly delineated judgment of a U.C. panel drawn from knowledgable people.
But Eric, I still don’t get your emphasis on procedural justice. People get whatever procedural justice is appropriate for the venue. For criminal courts, it should be really fucking high, because you get to imprision people. It is lower for civil courts because you can only fine them. It can be whatever (reasonable level) UC thinks is appropriate for its internal labor disputes, because U.C. wouldn’t be convicting anyone. When your kid talks back to you, she gets whatever procedure you has the patience for. In freakin’ blog comments, which have damn near no consequence, a standard like “I suppose I have to acknowledge the presumption of innocence, but it SURE LOOKS LIKE the guy arranged for torture” is fine.
If Yoo is hauled in front of a real court, I surely hope he gets criminal procedural justice.
If Yoo is hauled up before the U.C. Senate, he gets whatever procedures they already have, and there is NO REASON they should be the same as those for criminal justice. The stakes aren’t the same. His duties may well be different as well (like, as a state employee, he may have a duty to uphold the dignity of the Constitution in ways that ordinary citizens don’t).
But me saying that they don’t have to be the same is not like I’m running all wild and forgetting the presumption of innocence in real court. This:
I really, really hope that even this tiny piece of your Californian identity will come around to recognize that really, the UC shouldn’t be acting like a court. It’s a wonderful institution, but it ain’t imperium in imperio.
is just silly. U.C. can’t act like a court, because it can’t convict and punish him. It absolutely can do a thorough investigation of the public acts of own of their own, and their own codes, decide if there is an action to take, and do whatever it is. It may be to expose a real flaw in their Code of Conduct. It may be to say, no, he doesn’t meet the elements of a war crime.
You know, Dan Walters made the same mistake in a column a while back. Is this a went-to-law-school, didn’t-go-to-law-school thing?
April 7, 2008 at 4:27 pm
Megan
Dan Walters’ mistake.
April 7, 2008 at 4:27 pm
SEK
You didn’t know all this already?
The ignorance of grad students as to the workings of tenure should never be underestimated.
April 7, 2008 at 4:28 pm
Megan
Three times is a charm?
April 7, 2008 at 4:28 pm
Megan
YOU’RE SUPPRESSING MY EVIDENCE!!! I’ll try to put it under my name.
April 7, 2008 at 4:32 pm
eric
If Yoo is hauled up before the U.C. Senate, he gets whatever procedures they already have, and there is NO REASON they should be the same as those for criminal justice.
Except that the faculty code of conduct says they are, in effect, because it says with respect to crimes, you have to be convicted of one.
April 7, 2008 at 4:35 pm
eric
Megan, I summarize here the reasons you can be sacked, as enumerated in the faculty code of conduct. You’ll note that “we think you’re very likely a criminal” isn’t one of them.
April 7, 2008 at 4:37 pm
Megan
The funny thing is that I wouldn’t even make the “fire him because he is a war criminal” argument. I only got in on that because you mentioned my name and you said the U.C. isn’t in the business of doing that. I’m all, they could do a perfectly fine job for their purposes, and Prof. Yoo made it their business.
But I wouldn’t fire him for being a criminal unless he’s convicted by a law court. I’d use the elements and evidence of the war crimes standards to go for moral turpitude. I have no love for the slippery slope argument, either. There is a huge discontinuity between free-thinkers, gays and people who pridefully facilitate torture regimes. Using clear external standards (like whatever international law defines war crimes) helps innoculate U.C. against whim. Maybe you don’t want that to be a precedent, but it is at least equally wrong to not address extreme cases.
April 7, 2008 at 4:38 pm
eric
Yeah, the thing is, I don’t even know where DeLong got “moral turpitude.” I didn’t see it on the list.
April 7, 2008 at 4:42 pm
Megan
I’m trying to keep off the crack, so I don’t want to click over. But if they’re the same as the ones in your post, I understand your point.
If you’re having this conversation in a couple places and a bunch of different directions, we don’t have to keep this one going. I’m still going to think that U.C. should address this head on, though.
April 7, 2008 at 5:05 pm
Megan
OK, I’ve finally read the Code of Conduct. If they wanted to, I think they could get him on the first line of the Community Ethical Principles:
Faculty members have the same rights and obligations as all
citizens.
Actually, all citizens have the obligation to NOT COMMIT crimes against humanity. (I mean that in the international law-defined sense, not just in the I’m-really-outraged sense.) If we’re members of treaties defining war crimes, our citizens have to uphold those too. I don’t think U.C. should go faculty duck-hunters for violating the Migratory Bird Treary provisions, but if you had a beautiful, solid case of commiting the acts of war crimes and a very extreme example, like enabling torture in America, both of which Yoo might well fit, I think U.C. has plenty of room to act.
April 7, 2008 at 5:16 pm
Cala
Yoo is not, or not yet, a convicted war criminal. If he is a war criminal, then he is already a war criminal. Because a war criminal is someone who commits war crimes, not someone who is convicted of them.
True, but given that all of us are tossing about ‘war crimes’ when we don’t even know whether what he wrote would make him guilty of one, it’s hard to say that we all know he’s a war criminal, even if he hasn’t been convicted. I think it’s a distinction without a difference here (though I’ll award you full points, and amend it mentally to ‘convicted’), and I think the only thing we’re sure of is that writing that memo was evil, and that Yoo is an evil man. Which gets us back to the moral turpitude bit.
See, while it’s easy to say ‘we all know he’s committed a war crime’ I looked up what are considered war crimes. It is not easy to see under what Yoo’s actions would fall. He didn’t torture. He didn’t order torture. He wrote a memo saying that the President had the authority to torture, among other things. That’s three removes? I don’t know about you, but I don’t have strong war crimes intuitions here once I look at the definitions. I have evil asshole intuitions, but I don’t know enough to know whether that’s sufficient to be a war crime. How many lawyers were convicted at Nuremberg? It’s not just that he hasn’t been convicted, but that I honestly don’t know what he’s guilty of (in the way I know OJ is a murderer), besides being a foul human being.
Is a UC internal hearing going to be sufficient to declare him a war criminal and have that mean anything beyond ‘morally repugnant’?
April 7, 2008 at 5:30 pm
Megan
Yes. If war criminal means anything, it could lay out to us exactly how Prof. Yoo means or fails those qualifications. It could even have real international and war crimes scholars do that. Our guesses (like I said in the very first comment) are probably literally laughable. (I say that because I laugh and cringe when I hear laypeople talk about water law. That’s just how it is.)
Even law words mean something. An internal hearing could
1. tell us what being a war criminal requires
2. tell us what Yoo did
3. tell us how what Yoo did applies to the standards for war crimes.
I can make a thousand guesses for what he is guilty of and how laws can intertwine. Seriously. Y’all have stopped at the UC Faculty Conduct Code, but for all we know, there are other codes that govern all state employees, like upholding the state constitution which may contradict being a war criminal. Maybe RICO laws make Yoo liable for the criminal acts of his subordinates and there is enough connection between his memo and guards at Guantanamo to make that adhere. Maybe laws applying to federal employees are totally different from RICO laws. But I am quite sure that we aren’t going to get close in blog comments. I might trust Greenwald, but only because he’s been a lawyer. If war crimes isn’t his expertise, I wouldn’t trust him, either.
A U.C. court can’t actually criminally convict him. But it absolutely can tell us if his public, documented actions make him an unconvicted war criminal. And it can tell us how the Faculty code should be applied. And it can tell us what factors they balance in the decision to fire or why they can’t fire if they want to, or why tenure is more important.
April 7, 2008 at 5:34 pm
eric
For those avoiding that site, I quote my previously linked comment:
From the UC Faculty Code of Conduct:
So what does this include? As enumerated, it includes
(a) various kinds of mistreatment of students (pages 5-6). I don’t think this applies here.
(b) “Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others.” (6) Let’s withhold judgment on this one.
(c) various forms of disruption of the University community (7) Again, not applicable.
(d) Various forms of bad behavior with respect to colleagues. (8) Again, not applicable.
(e) Pretending to represent the UC when you don’t and “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.” (9)
So. (e.2) is the reason I think you can say all you like about Yoo being a war criminal, and where the bar is, but you can’t do anything about it until the prosecutors and the courts do their job. Why don’t you write the prosecutors, I ask again?
And (b)–that’s scholarly malpractice. Which may or may not apply. But the reason I say it comes down to that is, well, look at the list and tell me it doesn’t come down to that.
Unless of course it can be shown that some of the people he’s allegedly responsible for unlawfully harming were UC students or employees. Then you got something.
April 7, 2008 at 5:36 pm
eric
U.C. court
This invokes a picture of the UC that is entirely at odds with my experience of it.
Also, I draw your attention to the word “only” in the blockquoted bit of the UC code.
April 7, 2008 at 5:43 pm
Megan
Yeah, but you skipped the Ethical Principle of Community directly to the enumerated examples, which aren’t exhaustive. If his rights and obligations are only as strong as those of citizens, he doesn’t have a right to commit the acts of war crimes (I don’t either) and he does have an obligation to not commit war crimes (me too!).
If he meets the standard of war criminal (and I don’t even know what those elements are), he has violated the very first Ethical Principle of community. I think that makes him fair game. Maybe you don’t. BUT REAL EXPERTS SHOULD DECIDE.
April 7, 2008 at 5:44 pm
eric
REAL EXPERTS SHOULD DECIDE
Yep. I believe that’s what I’ve been saying.
April 7, 2008 at 5:46 pm
Megan
A U.C. court. OK. Not a court. Five very pedantic other law professors, and a couple watchers from other departments who write a painfully thorough report that goes to people in authority at U.C. and to the whole world, because they are a public institution and their integrity is being challenged by this.
April 7, 2008 at 5:48 pm
Megan
Real experts in war crimes should tell us if he meets the standards for a war criminal. They should meet U.C. procedures for the purpose of evaluating his continued employment, which is a U.C. concern.
Other real experts in law courts should decide if he is a war criminal for the purpose of imprisoning him.
April 7, 2008 at 5:49 pm
Megan
OK, I’m off. Have a good one.
April 7, 2008 at 5:50 pm
Megan
Why is your clock set to Mountain Time when you are being all emphatic about being out on the edge of the West? Pacific Daylight Time, baybee.
April 7, 2008 at 6:48 pm
matt w
He didn’t torture. He didn’t order torture. He wrote a memo saying that the President had the authority to torture, among other things. That’s three removes? I don’t know about you, but I don’t have strong war crimes intuitions here once I look at the definitions. I have evil asshole intuitions, but I don’t know enough to know whether that’s sufficient to be a war crime. How many lawyers were convicted at Nuremberg?
Looks like ten or twelve (I can’t get their numbers to add up). I’d read Scott Horton on Alstoetter before:
The [German] Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, “not farmers or factory workers,” they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were “recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war.” That is to say, they were customary international law. Further, the United States charged, this decree “would probably cause the death of human beings,” grounding a charge of homicidal intent.
After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years’ imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.
Granted that I don’t know much about war crimes law, I can’t see what in there fails to apply to Yoo, if you substitute “torture” for “death.”
April 7, 2008 at 7:11 pm
nick
the left gives in and gives in and gives in….we’ve lost the culture wars anyway, so why not at least get Yoo? i think it is entirely worth innovation to get rid of him. in the public mind, Berkeley is exactly the sort of institution that would fire a decent Murrica-lovin scholar like Yoo anyway–unless not firing him is the centerpiece of a brilliant campaign for academic freedom, which it ain’t gonna be, so: get rid of the motherfucker. I suspect that he only got hired in a lame defensive effort to provide insulation against right-wing attacks anyway…..I mean, if “we” are the left, what institutions do we have if we don’t have Berkeley?? if, for example, a student-organized boycott shut down classes for weeks or months, then (c) “disruption…of the community” could be invoked. and surely other possibilities occur…of course, if you’re a procedural liberal, I ain’t gonna convince you, so that’s all–
April 7, 2008 at 7:24 pm
bitchphd
I’m a Foucauldian, sort of, and I wasn’t yelling at my screen. I’m glad someone said the right thing.
Look, folks, if it’s gross when David Horowitz plays political bullshit with academics, it’s gross when we do it too. If Yoo’s work violates the standards of constitutional law, then and only then is there a problem from the pov of his academic employment. And like Eric says, a modicum of respect for the concept of expertise suggests that the most any of us who aren’t constitutional law scholars can do is say that we *think* it does or doesn’t.
That said, of *course* there are problems with insiders protecting their own, etc. No system is perfect. But tough cases make bad law, or so the lawyers supposedly say.
April 7, 2008 at 7:25 pm
DCA
Members of the UC law school (or any group of UC faculty) certainly can, and I hope will, give their opinons on what Yoo did. They could also bring a motion to the Academic Senate that his conduct was in violation of the UC Code of Conduct, and ask the Administration to take action against him. However, the Senate, or any group of faculty, have almost no power to affect his terms of employment, except for judging his fitness for further promotions.
The administration of UC (and this can and does include people with faculty positions, but acting in a different capacity) is the only entity that can perform disciplinary action. If they do, the case is judged by a faculty committee (Privilege and Tenure, though it doesn’t make tenure decisions) that provides its own recommendation. However, all this is cloaked in deepest confidentiality.
Finally, if the faculty committee that judges promotions were to deny him promotion on inappropriate grounds, he can complain to the same committee–and he would have a case.
I agree that Yoo is a hack, and has a lot of responsibility for some truly disgusting things that have happened. But, without the finding by some other body that he engaged in criminal conduct, it will be difficult for the UC administration to punish him without bending the rules. And if there is a lesson in what he did, it would be, don’t bend the rules just because you think “this person is a special case”.
April 7, 2008 at 8:00 pm
bitchphd
And if there is a lesson in what he did, it would be, don’t bend the rules just because you think “this person is a special case”.
I was trying to say this but couldn’t figure out how. Exactly right.
April 7, 2008 at 8:16 pm
Megan
I don’t agree with that either. Letting extraordinary cases go is also injustice. You can do all sorts of safeguards (transparency mostly, procedural checks as back-up) to make sure you aren’t being arbitrary or vindictive. But when extreme cases are thrust on you, it is appropriate to meet them with unusual responses. That is actually what justice requires.
Having an expert deliberative body examine that question in a transparent manner may show that this isn’t that extreme case, or that you’d lose more by deviating from procedure. It may show that the Faculty Code isn’t equipped to handle rare events. But U.C. dodging the question damages the integrity of the state.
April 7, 2008 at 8:37 pm
Cala
If it’s the tenure committee that’s doing it, it will be a neat little non-transparent kangaroo court, which is good for delicious irony, but little else. They’re just not a court, and they’ll likely find that they aren’t actually war crimes experts, and the contract still requires a conviction.
Better to go after him on the professional ethics grounds, if they can, because the case is easier (so I am told) to make based on the shoddiness of the memo.
April 7, 2008 at 8:45 pm
Colin
Thanks for doing this Eric, and not for the first time I find myself in total agreement with bitchphd.
I’m in the middle of personnel season, and am acutely conscious of how hard it is to do the kinds of assessments we normally do — for hiring, promotion, tenure, and merit — properly and with appropriate formality, documentation, and care. So, right, we’re going to start going after what people are complicit in when they’re on leave, gathering evidence, taking testimony, learning law we have zero training in…
To outsiders there’s a huge disproportion. On the one hand Yoo appears complicit not just in torture but in an effort to debauch the Republic. On the other hand you have what must look like chickenshit rules protecting his employment in a respectable job.
But they do protect his employment. Ward Churchill, incidentally, was railroaded, and he was easy to railroad because he had few friends and had made himself widely obnoxious. But procedural protections are not just for nice people, and I don’t want to be in the railroad business.
April 7, 2008 at 10:24 pm
urbino
I skipped over some comments, so apologies if this is redundant.
Regardless of criminality, UC clearly could — and should — fire Yoo for incompetent job performance: that is, for being a complete fucking disaster as a legal scholar.
The problem is that they would then have to explain why they hired him in the first place, since there’s nothing we know now about Yoo’s capacity for legal reasoning that we didn’t know before UC hired him, or even before he joined the Bush administration.
The basic fact is UC won’t fire him for the same reason they hired him: he’s an extremely high-profile token conservative on a famously liberal campus.
April 7, 2008 at 10:51 pm
Robert Halford
I like most of the analysis in the main post and many of the comments. But, as a lawyer, the implied conclusion that something in the UC Code of Faculty Conduct or its relationship to the criminal law would or should prevent Yoo’s firing seems deeply wrong.
The UC’s Code of Faculty Conduct unquestionably gives the University more than enough authority to discipline or fire Yoo. Contra Eric above, it very clearly does NOT make the 5 specifically enumerated categories of misconduct the sole ground for academic discipline. Rather, the preamble of the Code and Part I of the Code set forth a series of principles for the purpose of the University (in the preamble) and for rights of the faculty that are designed to be protected by the Code (in Part I). Part II then specifically provides that the University may punish faculty members for conduct that is not specifically enumerated in Part II, so long as it violates the norms set forth in the preamble and in Part I. Indeed, even the examples set forth in Part II cannot give rise to discipline unless they violate the academic principles set forth in the preamble and Part I. In short, the University would be well within its rights to fire Yoo if it concluded that he had acted in contradiction to the principles set out in the preamble and Part I of the Code of Conduct.
I don’t see any good argument that what Yoo did — aiding and abetting torture through tendentious legal research — is not inconsistent with the principles set forth in the preamble and in Part I. Those principles refer generally to freedom to pursue the truth and to openly enquire into controversial subjects without fear of reprisal. That’s not what Yoo did. He took action — aiding and abetting, with clearly erroneous advice, the commission of a clear evil. He’s much closer to a crooked lawyer pushing a fraudulent tax shelter than he is to a scholar seeking the truth, and there’s not even a good argument that the torture memo itself was created for the purpose of a free and honest scholarly enquiry. So there is nothing in the Faculty Code of Conduct that, standing alone, would prevent the University from firing Yoo. (The Code refers to rules and procedures to be set out by a Division of the University, so it may be that Yoo’s division has a different set of rules that would protect him).
Nor is there any sense in which the University would “usurp” the role of a criminal court if it fired Yoo for taking actions that it viewed as morally and ethically reprehensible. In almost all contexts, employment is at will and people can be fired without any justification at all. Obviously, tenure gives additional protection to the employee, but there’s a whole lot of space between “employment at will” and “the only misconduct for which you can be fired is the committing a crime,” and the Code of Conduct itself plainly allows for the University to fire or discipline all sorts of conduct which it finds incommensurate with its values. Thinking that you would or should need to rely on the criminal courts to enter a judgment of conviction before you can decide whether or not someone has done something incompatible with your institution’s core values is just bizarre.
Most of the arguments here against Yoo’s dismissal seem to rely on some version of a slippery slope argument. But, first, the Code of Conduct itself clearly allows for flexibility, so there’s no reason to think that a professor who signed up at the UC had any right to expect to be able to get away with, literally, murder. Second, this is a really weird slippery slope argument to make. The whole point of the uniquely negative reaction to Yoo’s work is that torture violates a fundamental principle of liberal order, and that aiding and abetting it through action causes a unique harm to our society. The notion that creating a bogus legal framework through which the government can torture people is just the same thing as expressing an unpopular political view or saying that the US caused 9/11 is just strange. Moreover, it’s a violation of precisely the priniciples that supposedly animate the profession whose young disciples Yoo is teaching.
Bottom line: the University can and should fire or discipline Yoo.
April 7, 2008 at 10:58 pm
urbino
He should also be disbarred.
April 7, 2008 at 11:05 pm
Robert Halford
Ack, terrible writing in my post above. Not used to these long comments. Sorry.
But the main point stands. The UC Code of Conduct certainly allows the University to discipline Yoo. Indeed, to the extent that Yoo’s actions violate the principles of the purpose of academic freedom set forth in the preamble and Part I, the Code of Conduct might require the University to punish Yoo.
And the slippery slope argument is strange.
April 7, 2008 at 11:07 pm
Megan
Go Mr. Halford! Nicely summarized, and a far cleaner version of what took me tens of comments to arrive at. (Although I don’t know enough to say whether it should fire him. But it should damn well look into it and tell me how it arrives at an outcome.)
Now I’m wondering why this perspective is so clear for me and Mr. Halford, and so different for Cala, Eric and Dr.B. I’m thinking it was the law school.
April 7, 2008 at 11:18 pm
foolishmortal
Hear, hear, Halford. If that’s your terrible writing, God help the targets of your mediocre stuff.
April 8, 2008 at 3:27 am
Matt W
there’s nothing we know now about Yoo’s capacity for legal reasoning that we didn’t know before UC hired him, or even before he joined the Bush administration.
Actually, not true: UC hired him in 1993. I don’t know whether he was allowed to take indefinite leave while he worked for Bush, or whether he had to resign his job and Boalt had the option of whether to take him back. For Boalt’s sake, I hope it’s the former.
However, I think being a complete disaster as a legal scholar probably is (and even should be) protected by academic freedom. If Yoo can be got, it’s because he committed legal malpractice; if he’d written the same egregious stuff in a law review article, that would be covered by academic freedom.
April 8, 2008 at 3:40 am
silbey
Thinking that you would or should need to rely on the criminal courts to enter a judgment of conviction before you can decide whether or not someone has done something incompatible with your institution’s core values is just bizarre.
You have misunderstood the arguments that you are critiquing. The point that people were arguing was that UC cannot fire someone for being a war criminal if that person has not, in fact, been convicted of being a war criminal.
April 8, 2008 at 4:48 am
eric
Part II then specifically provides that the University may punish faculty members for conduct that is not specifically enumerated in Part II, so long as it violates the norms set forth in the preamble and in Part I. Indeed, even the examples set forth in Part II cannot give rise to discipline unless they violate the academic principles set forth in the preamble and Part I.
Rob, the Code says that the principles
Which I interpret to mean, the Ethical Principles are ideals, and if you live up to them, you couldn’t be sanctioned, but also, being ideals, you’re going to fall sort of them. Meanwhile
So, if you commit any of the types of unacceptable conduct, you must suffer disciplinary sanction.
That clearly means, as you suggest, there is some gray area in between the ceiling of the ethical principles and the floor of unacceptable conduct—a gray area into which all faculty are presumed to fall.
Each time here, or on that other site, I ask exactly what case one would make against Yoo in this gray area, I get no answer, and I’m pretty sure the reason I get no answer is, any answer would be susceptible to a non-weird argument that it would apply to people for whom we’d rightly wish to preserve tenure’s protections.
(That is, I get no answer except Megan who thinks the UC has, or should have, courts empowered to carry out some kind of nonbinding criminal trial, which I find a chilling prospect. UC is not imperium in imperio. Its job is not to substitute for the courts. You want to try the guy, get him in a real court.)
April 8, 2008 at 5:02 am
Cala
If Yoo can be got, it’s because he committed legal malpractice; if he’d written the same egregious stuff in a law review article, that would be covered by academic freedom.
I think this is right. I don’t know whether he’s committed legal malpractice. I think his reasoning is bad, and some of the lawyers seem to think he’s done so. And I think that’s the way UC would need to go. (Might be hard to go that route when he’s still a member of the bar, but probably worth a shot.)
Thinking that you would or should need to rely on the criminal courts to enter a judgment of conviction before you can decide whether or not someone has done something incompatible with your institution’s core values is just bizarre.
This hasn’t been the argument, as urbino has pointed out.
April 8, 2008 at 5:12 am
eric
if he’d written the same egregious stuff in a law review article, that would be covered by academic freedom
Except that’s the kind of thing that got Churchill and Bellesiles fired. So evidently not.
April 8, 2008 at 6:40 am
Cala
They were fired for ‘research misconduct’, technically, weren’t they?
April 8, 2008 at 6:42 am
eric
Something like that, yes. So if it’s true, as many lawyers seem to claim, that Yoo’s advice is so obviously disingenuously flawed (Youngstown!, I believe one is supposed to yell) and he’d put it in a law review article, I think it would be the same kind of case Matt is describing.
April 8, 2008 at 6:48 am
Cala
I don’t think so; they weren’t fired for reasoning badly but for plagiarism and falsifying research, weren’t they?
April 8, 2008 at 6:54 am
Bruce Baugh
Robert Halford seems to have covered the ground very well, as far as I’m concerned.
It is true that we collectively, the folks from center-ish leftward, don’t want to abandon principle and rush to use every available tool as a weapon the way movement conservatism has. But this looks to me like a case where some folks have internalized too much self-skepticism. I’m reminded unhappily of how Republican abuse of impeachment in the ’90s has left too many Democrats afraid to use it as it was clearly intended, refusing even to seriously investigate what may well be impeachable misdeeds, let alone carry anything through to the trial stage.
Part of what bugs me is the idea that refraining from a push to get UC to seriously consider whether Yoo’s vile actions are the sort of vile action that warrant removing tenure might somehow contribute to an atmosphere of fairness in which right-wing attempts to discredit people for lifestyles and politics they like won’t happen, or will be less effective. They won’t. Absolutely nothing we support or oppose with regard to Yoo will matter in the slightest to the machine. David Horowitz won’t wake up tomorrow and think “Gee, a whole lot of liberals are bending over backward to avoid punishing Yoo, I’d better go more easily on the next guy I want to make out to be the second coming of Ward Churchill.” They will continue to grab every available cause, and to invent ones out of whole cloth when the truth is unobliging, because that’s what they do. They will take the fact of discussions like this as proof of weakness whatever their outcome, too, but that doesn’t mean we should refrain from questioning a proper course of action, either.
So the hell with them. The question is what those of us who have any values larger than our faction’s fortune of the moment and who want a prospering civil society should want. And my answer is that we should want some things to be out of bounds, including Yoo’s style of lying about the law for his boss’ favor. I don’t think anything a fair policy fairly applied can do will scare people prepared to lie about the law the way Yoo is, but I would like to scare those willing to consider it and still feeling any sense of shame, and I’d like people like him to face the loss of their academic privileges as a real thing whether they care about academic ethics for their own sake or not.
April 8, 2008 at 6:59 am
eric
I don’t think so; they weren’t fired for reasoning badly but for plagiarism and falsifying research, weren’t they?
No, not exactly, and Bellesiles wasn’t actually fired—technically resigned. But if you look at the report linked in the post on Bellesiles, you’ll see it covered a lot of ground, including various forms of disingenuousness. It’s cautious and responsible in its conclusions, but.
April 8, 2008 at 7:00 am
eric
t refraining from a push to get UC to seriously consider whether Yoo’s vile actions are the sort of vile action that warrant removing tenure
Bruce, I’m advocating no such restraint. I’m just trying to get such a push, if there were to be one (and did this post or the one over at the other site actually generate any push, or just a lot of people getting angry with me?) to go through useful channels.
April 8, 2008 at 7:08 am
Bruce Baugh
Eric: What sort of case would I make against Yoo, in terms of UC ethics? Simple enough. He gave the President of the United States counsel that completely ignores the most fundamental legal ruling on the subject and flat-out inverts the meaning of the next one. This is either blatant incompetence or deliberate suppression of inconvenient facts. And he did this so as to accommodate torture without any sort of review or check. This is immoral. It is a bad use of UC funds to support someone willing to do such a thing.
Sure, someone’s going to argue the same applies to biologists who won’t preach creationism, and on and on. But they’ll do that anyway, because for them, all institutional power is just there to be used as a weapon. I think that if UC tolerates and rewards Yoo’s behavior, it will be telling them that they’re right, that there is no principle larger than the president’s (or whoever’s) self-interest, and that in the long run this will destroy the very academic freedom that people unwilling to call for punishing Yoo want to protect. You’re acting contrary to your own best interests. But this is one of the reasons that ethics provisions are open-ended. It simply wouldn’t have occurred to me as late as the summer of 2000 that we might want to codify something like “Blatantly misrepresenting the law so as to support the violation of fundamental human rights and national and international law is unethical and contrary to sound academic practice.” And that’s why it’s good to have the kind of phrasing we do up front in the UC code, to cover the stuff people didn’t think of or rejected as too weird or whatever at the time.
Turning it around: I find it impossible to believe that if the question had been explicitly raised at the time this code was last modified, its authorities would have said, “We don’t feel that blatant misrepresentation of the law so as to support the violation of fundamental human rights and national and international law has any bearing on someone’s worthiness to continue receiving tenure. That’s someone else’s department.”
April 8, 2008 at 7:10 am
Bruce Baugh
Eric, a question, and a serious one: What would be the appropriate channel for an out-of-state layman to make a push in? I have no idea, nor really any idea where I’d go to begin finding out.
April 8, 2008 at 7:44 am
eric
This is either blatant incompetence or deliberate suppression of inconvenient facts
Right, and I can see that could be covered under misconduct, provided the relevant committees agree with you. Which is what I’ve been saying.
The reason we should invoke the code and use the relevant procedures is not to impress the Horowitzes, it’s because using the code and the relevant procedures is what makes us the good guys.
April 8, 2008 at 7:45 am
eric
What would be the appropriate channel for an out-of-state layman to make a push in?
Well, being angry at me won’t help, I’m on the wrong UC campus.
April 8, 2008 at 7:54 am
Bruce Baugh
Never mind, I’ll be a good unit and go back to my cubicle. These are matters too deep for me, I guess, because there’s something I’m not getting, and getting more and more mystified about as i go.
April 8, 2008 at 8:00 am
eric
I’ll be a good unit and go back to my cubicle
That’s not at all what I meant.
April 8, 2008 at 8:17 am
Bruce Baugh
It sure seems like it. We should, as I read it, entirely leave this up to UC, and refrain from doing anything that would smack of violating their prerogatives. One more thing to be quiescent about. It’s not even clear that your argument leaves room to say something as simple as “I think Yoo has disgracefully failed his profession and the academy generally and should lose his privileges for it”, since we outsiders can’t conduct an authoritative investigation to back that up. Is there anything we can do to try to drag the country back to sanity in cases like this without contributing unwanted trespass?
I realize this will sound snarky. It’s more despairing.
April 8, 2008 at 8:26 am
Bruce Baugh
I will generalize a bit, reflecting.
I agree that it’s highly desirable to leave room for institutions to apply their policies in a non-circus sort of atmosphere. I would certainly be happy to cheer on a formal investigation and wait on its outcome before wondering what to do next, and to hope for a good, solidly supported outcome that leads to sensible drawing of boundaries useful for this case and others like it in the future. That’s unquestionably the best case.
The problem comes when the best people to handle a case don’t, like the Congressional refusal to consider impeachment investigations, or the fact that five years on, there isn’t even the beginning of an inquiry into Yoo’s qualifications to retain tenure, while Ward Churchill went from nobody to fired in two years flat. I would like to know that something sensible is happening; I don’t. In the absence of that, it doesn’t seem to me unreasonable to think, “Well, what can concerned elements in society at large to do make stuff that should be happening go ahead and happen?” But I find myself very much agreeing with John Emerson and others that it seems like the responses we’re getting boil down to “Trust the wise ones, no matter how bad their silence seems and no matter how bad it gets.”
I don’t here mean to tell you that’s what I think your intent is. When I said that I feel mystified, I meant it. I also meant it about feeling despairing.
April 8, 2008 at 8:29 am
Bruce Baugh
Okay, one “shorter me” comment and I actually do hush up for a while. :) (Pardon the floundering to get to this brief bit. This has been an exercise in figuring out what I think by writing it down. Apologies for the length of it.)
In general, I wonder, what is it appropriate to do when the institutions primarily responsible for handling an obvious problem don’t? And from that generalization, what about cases like this, where all we get from the relevant authority is silence as the abuses multiply?
Now I go do chores.
April 8, 2008 at 8:52 am
Megan
(That is, I get no answer except Megan who thinks the UC has, or should have, courts empowered to carry out some kind of nonbinding criminal trial, which I find a chilling prospect. UC is not imperium in imperio. Its job is not to substitute for the courts. You want to try the guy, get him in a real court.)
I absolutely think no such thing. (I wrote “U.C. Court”, cause I was going fast, but revised that two comments later.) What I think they do have the power for is to commission a panel of experts to write a report that lays out the case. That case then goes before the U.C. Senate, or the Regents, or whomever the right authority is. That report can follow the criminal standards for evidence and conviction (that’s going to confuse you again. That doesn’t mean he was convicted by a criminal court. That means that they choose phrases like “beyond reasonable doubt”, which criminal court have assigned meanings to.) or they can use whatever standards U.C. thinks is appropriate.
Based on that assessment of Yoo’s criminal conduct (which is not a conviction, because U.C. doesn’t have that authority and no matter what that report says, John Yoo will walk free and presumed innocent that day.), they should decide whether to continue his hire.
Each time here, or on that other site, I ask exactly what case one would make against Yoo in this gray area, I get no answer, and I’m pretty sure the reason I get no answer is, any answer would be susceptible to a non-weird argument that it would apply to people for whom we’d rightly wish to preserve tenure’s protections.
Here’s the thing. If that grey area -not one of the enumerated but not exhaustive Type of Unacceptable Faculty Conduct but also violating Ethical Principles- doesn’t include war crimes (presuming the report make a very good case Yoo is a war criminal) then the Faculty Code is broken. That shit is egregious.
And when you have to deal with egregious shit, it is right to handle it as an exception. You make your case clear, you handle it transparently and publicly, you be very careful to show your work. And then when other people say, ‘but you could also use that argument against people who should have the protections of tenure’, you say ‘no you can’t because they aren’t war criminals. Get back to me when they order concentration camps.’
I know that violates the procedural liberalism (I should look that up, but I’m guessing it means what the words say.), and that could be some amount of wrong. But not addressing moral outrages is also wrong. So U.C. needs to face that straight out and lay out the case. Then they have to make a decision based on that case.
April 8, 2008 at 9:44 am
Megan
I’m gonna keep commenting until you stop arguing in my head. You sure are stubborn.
If I’m reading you right, the outcome of your argument is that U.C. is dependent on other bodies to protect its own integrity. That can’t be right. Prof. Yoo may well be pardoned. He may never be subject to criminal trial. That doesn’t mean that he didn’t commit war crimes (if he did), and that doesn’t mean that U.C. must tolerate him. (Maybe if U.C. were some piddling little inept organization, they wouldn’t have the skills or ability to judge this. But a body like U.C. definitely has the capacity to decide whether Yoo committed criminal acts and how that fits with their Code of Conduct.)
Or, if it is right that the U.C. is dependent on other bodies to ensure its integrity, then the system U.C. has for policing itself is deeply flawed. Finding that out, that Hey! we can’t fire a guy even though we can show he committed war crimes, is itself a worthwhile end to an investigation.
Either endpoint is has more integrity than giving up before the question is publicly and thoroughly addressed. And that’s (a small piece of) my integrity at stake. Yours even more.
April 8, 2008 at 10:00 am
Colin
Principle is only as good as process. If Yoo’s crimes are on the scale they very possibly are, why not file suit in a real court? Why go after his job?
And seriously, think through what you would need for even a *semblance* of due process. “The U.C. Senate, or the Regents” may sound like impressive titles, but they’re bodies with pretty limited functions, and performing even those functions properly takes a lot of work.
April 8, 2008 at 10:04 am
Bruce Baugh
Hah. Nailed down part of what’s bothering me, Eric. Megan, thanks for provoking this chain of thought.
The White House line is that the President has determined that his powers as Commander in Chief are in play. The Office of Legal Counsel has determined that this means he cannot be checked or hindered. Yoo has advised the President that with regard to the particular question of torture, no law interferes with his executive power to authorize information gathering of any kind insofar as it may pertain to the security of the United States, as determined by the executive. Nobody else therefore has grounds for complaint, because the relevant authority has been consulted and produced an opinion.
How does this differ in practice from saying that UC’s relevant committee(s) has/have exclusive authority to make any judgment on Yoo’s fitness to continue as a tenured professor, that they must not be subject to outside pressure, and that the responsibility of the rest of us is to wait for them to act, without doing anything that would interfere with their unique authority to deliberate and decide?
April 8, 2008 at 10:08 am
Bruce Baugh
Colin, the major reason not to file suit is standing. The courts have gotten very, very tight indeed about such things. Heck, part of what’s wrong with Yoo is that he defends and supports the principle that the executive can’t be held accountable at all for such stuff. I mean, I’m not making it up when I say that they’ve argued that the victims of torture lack the standing to divulge the classified information of what their medical status is after interrogation, because what’s done to them is a state secret. Various groups are still trying, but generally not getting anywhere. Turning to entities outside the executive branch is very much settling for second best, but it’s not a decision made in haste – this stuff’s been going on for years now.
Katherine and Hilzoy at Obsidian Wings produce the most compactly useful updates I know of on such matters.
April 8, 2008 at 10:09 am
Bruce Baugh
(I would cheerfully donate to a fund to help prep for and file more suits despite those problems and give when I can to the groups doing so now. It’s just that they’re not going to do the job by themselves.)
April 8, 2008 at 10:38 am
eric
U.C. is dependent on other bodies to protect its own integrity
No. You will note the post lays out a way in which the UC can operate without outside help.
April 8, 2008 at 10:39 am
eric
saying that UC’s relevant committee(s) has/have exclusive authority to make any judgment on Yoo’s fitness to continue as a tenured professor, that they must not be subject to outside pressure, and that the responsibility of the rest of us is to wait for them to act, without doing anything that would interfere with their unique authority to deliberate and decide
I’ve never said any such thing. What I’ve done here is lay out a way the UC could proceed, in keeping with its own rules. Anyone not bound by the UC’s rules can do what they want.
April 8, 2008 at 10:48 am
Colin
Bruce: (a) I’m sorry, but the 10:04 message doesn’t make sense. The differences, even in your tendentious phrasing, are huge. You have to ask yourself what different institutions are *for.* (b) re 10:08, it seems clear at this point that you’re venue-shopping, simply looking for any means available to hurt Yoo. Would you take a complaint to Yoo’s condo board? I don’t think courts are closed in principle (did you mean “judicial branch”?) and there’s certainly a history of suing torturers. I doubt it’s easy, but courts are at lest *set up* to consider evidence, apply law, and so forth.
Your argument has to assume that continued employment is a judgment of Yoo’s moral fitness and actions in the world. It’s not, and nobody has thought through what it would really mean for a university or any other sort of employer to set up appropriate tribunals, with adequate due process, to adjudicate things employees have done *while not on the job.*
April 8, 2008 at 10:53 am
silbey
So a professor goes on leave, say a sabbatical. While he’s on leave, he studies the Iraqi insurgency: methods, tactics, motivations. He writes papers arguing that their tactics are reasonable responses to the U.S. occupation of Iraq. He even studies other insurgencies and points out tactics that the Iraqis *haven’t* used (yet) When he gets back to leave, there’s a firestorm of criticism from the right, accusing him of being a traitor, of justifying terrorism and even giving it hints to new tactics, and advocating that his university simply declare him guilty of treason, and fire him outright. Should they?
April 8, 2008 at 10:54 am
silbey
By the way,
April 8, 2008 at 10:54 am
silbey
can we stop with the multiple succeeding posts?
April 8, 2008 at 10:54 am
silbey
It’s annoying.
April 8, 2008 at 11:07 am
Colin
Obviously not — was that supposed to be a hard question?
April 8, 2008 at 1:33 pm
ogged
Each time here, or on that other site, I ask exactly what case one would make against Yoo in this gray area, I get no answer, and I’m pretty sure the reason I get no answer is, any answer would be susceptible to a non-weird argument that it would apply to people for whom we’d rightly wish to preserve tenure’s protections.
No, it’s that people just aren’t connecting all the dots for you because it takes time and effort. Quickly: we’ve all noted that the violations in the code of conduct aren’t, according to the code itself, exhaustive.
Then, from the preamble:
Here we learn that the code itself is derived from “the central functions of the University” and intends to “advance the mission of the University as an institution of higher learning.”
Now we hop over to Berkeley’s Principles of Community, which “are rooted in our mission of teaching, research and public service.” We learn that the University has a “deep commitment to contributing to a better world.” Among the principles enumerated to that end, we find this,
Yoo’s memos were a crystal clear example of someone undermining the dignity of individuals; I haven’t read the memos and interrogation manuals in a while, but I’m pretty sure that destroying the victim’s sense of personal dignity is one of the express goals of torture. And this argument doesn’t apply broadly precisely because it’s *not* about Yoo’s scholarship, but about acts committed out in the world. Like I said at Unfogged: he should be fired for abetting torture.
April 8, 2008 at 2:03 pm
Cala
Even ogged doesn’t comment on his own blog any more.
April 8, 2008 at 2:05 pm
silbey
was that supposed to be a hard question?
It was if you think UC should fire Yoo out of hand for being a war criminal.
April 9, 2008 at 9:00 am
Matt Weiner
I see that Cala got 100 on this thread, but I assume that the first 100 ever on this blog was taken by a Rondroid.
April 9, 2008 at 9:02 am
eric
You’re not seriously counting comments, are you?
April 9, 2008 at 9:13 am
andrew
If Yoo’s crimes are on the scale they very possibly are, why not file suit in a real court?
I assume this suit is still active.
April 9, 2008 at 10:26 am
ogged
You’re not seriously counting comments, are you?
The count on the post was at 101 for a while, so it wasn’t hard to figure out which comment was 100. Philosophers use their brains for thinking; what do historians use them for?
April 9, 2008 at 10:27 am
ogged
Remember, this grudge will be in effect for seven centuries.
April 9, 2008 at 10:31 am
ari
what do historians use them for?
Paperweights? Pin cushions? A keepsake? A light snack (but only in a pinch)?
April 9, 2008 at 10:31 am
silbey
Philosophers use their brains for thinking; what do historians use them for?
Historians use them for thinking about meaningful stuff.
April 9, 2008 at 10:39 am
ari
Oh, what Silbey said. That’s what I meant.
April 11, 2008 at 2:27 pm
Still soaking. « The Edge of the American West
[…] 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 […]
February 5, 2009 at 2:42 pm
He gets mail, and he answers it. « The Edge of the American West
[…] still thinks procedural liberalism can save the […]