Torture and Tenure

A civil liberties group that is working to curb what it sees as abuses by the Bush administration has mounted an e-mail campaign to push for the firing of John Yoo, a tenured professor of law at the University of California at Berkeley.

While Yoo's views on torture have been widely condemned in the academic legal world, many are objecting to the campaign as an infringement on academic freedom -- ironically coming from a group formed to protect civil liberties. His controversial writing -- justifying forms of interrogation many view as torture and in violation of the Constitution and international conventions -- came while he worked in the Bush administration's Justice Department. While Yoo did not respond to an e-mail request to comment on the campaign against his continued employment at Berkeley, he has written elsewhere defending his views.

The e-mail campaign calling for Yoo's dismissal is from a group called the American Freedom Campaign. It says of Yoo:

"In 2003, the U.S. Department of Justice’s Office of Legal Counsel issued a memo advising the Pentagon that laws and treaties forbidding torture and other forms of abuse did not apply to U.S. interrogators because of the president's wartime power. The man who wrote that memo -- John Yoo -- is now happily ensconced as a tenured law professor at the UC Berkeley School of Law. While an unknown number of people suffer the aftereffects of illegal torture he encouraged, Professor Yoo is teaching, writing, and generally enjoying life in California. This is flat out wrong. John Yoo should not only be disqualified from ever serving in government again, but he should also be prohibited from spreading his distorted view of the law and the role of lawyers to young law students. He must be fired. And the man to do it is Christopher Edley Jr., dean of the UC Berkeley School of Law."

The American Freedom Campaign is hardly alone in raising questions about Yoo's suitability to teach. An editorial last week in The New York Times, while not calling for his dismissal, said in passing, "Mr. Yoo, who, inexplicably, teaches law at the University of California at Berkeley...."

The explanation, of course, is tenure.

In a statement about the demands that he fire Yoo, Edley strongly argued that doing so would violate a tenured professor's rights to academic freedom and due process. Edley noted that University of California regulations about seeking the dismissal of tenured professors are very restrictive. For instance, a tenured professor can be dismissed for "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," a standard Edley said that clearly has not been met.

Edley noted his belief that the "vast majority of legal academics" disagree with Yoo's analyses, but he also noted that Yoo had tenure prior to leaving for Washington and that he has been a "very successful teacher and prolific (though often controversial) scholar." And Edley added that if a consensus disagreeing with a professors views "were enough to fire or sanction someone, then academic freedom would be meaningless."

"There are important questions about the content of the Yoo memoranda, about tortured definitions of 'torture,' about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions," Edley added.

In the academic legal blogosphere, the move to fire Yoo is receiving substantial criticism -- even from people who disagree with his views on torture. Brian Leiter, a professor of law and philosophy at the University of Texas at Austin, wrote that he had himself removed from the American Freedom Campaign's e-mail list as a result of its "disgraceful attack on the academy."

Added Leiter: "Tenure, and academic freedom, would mean nothing if every professor with views deemed morally reprehensible or every professor who produced a shoddy piece of work -- while inside or outside the academy -- could be fired."

Others, however, are questioning Edley's defense, saying that he is too quick to minimize the obligation of a legal scholar to values beyond those being pushed by a given client or government official.

Writing on the blog Balkinization, Scott Horton, who teaches at Columbia law school, says that he understands Edley's desire to protect a professor whose dismissal is being demanded, and to stand for free speech. But Horton sees more at play and questions the way Edley defended Yoo.

Of Edley, Horton writes: "He is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them.... They can be a force for social good. And they can also be vessels of horrendous injustice and oppression. Indeed they can foment and advance a criminal design. Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis? Does he believe that they are free to follow their careers like legal pipefitters, dispensing the advice that their clients want to hear -- and if it goes astray, well then, the problem is all the client's?

"Does he want a generation of Berkeley grads to think that writing up CYA memos for political friends is an honorable and proper thing -- or at least something you can get away with, suffering no negative repercussions? This is exactly what some of the more unfortunate and ill-considered language in his memo suggests.... Edley owes it to his institution and to the students it is training to accept the full ethical and legal challenges that the case of John Yoo raises, and to treat them earnestly. His decisions are not wrong. But the words he chose to express them do little credit to the students and faculty at Boalt Hall."

The Balkinization blog contains several other posts, with commentary, about the dispute.

Timothy Burke, an associate professor of history at Swarthmore College, set off a debate among readers of his blog, Easily Distracted, by comparing Yoo to Ward Churchill. Writes Burke: "So riddle me this: why isn’t John Yoo just as big a hack when it comes to constitutional law as Ward Churchill was when it came to Native American history? This isn’t about simple disagreement with the substance of his arguments in the 'torture memos.' It’s about Yoo making claims (claims with consequences far greater than what normally follows from scholarship, even legal scholarship) that are just factually wrong or are screamingly disingenuous. Whatever the standards might be for employment at the Justice Department (a different issue), shouldn’t this kind of approach to knowledge and scholarship disqualify someone for an academic post?"