Friday, April 11, 2008

Berkeley Dean Says Yoo's Actions Don't Warrant Firing

In an announcement to faculty and students Christopher Edley, Jr. , Dean of the Boalt Hall School of Law at Berkeley said that in his personal opinion the actions of tenured professor Jon Yoo do not rise to the standard that would warrant Yoo's dismissal.

That is not to say that Edley is an apologist for Yoo. In fact, some of his comments are striking. Edley writes,

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.

Edley also recognizes the special role that lawyers play in the government.

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

Notwithstanding his lack of regard for Yoo's work Edley says that the standard for removal is rightfully high, in order to preserve the principles of academic freedom.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

In my mind, the jury has yet to be empaneled on the question of whether Yoo's actions rise to the level of a legal crime. I think there is no doubt he committed grievous moral crimes.

There is one thing the Dean says with which I seriously disagree. Edley writes,

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.

Rumsfeld, Bush and the rest are certainly more culpable than Yoo. But Yoo was more than an advisor. He was the indispensable enabler. Without his "legal" opinions, the abuses would have stopped or not even begun. For that, Yoo deserves his special place among the reviled.

The process of holding Yoo accountable may start with John Conyers hearing in May which has now been expanded to embrace the subject of the Principle's Meetings, where specific torture techniques were planned and approved by Rice, Rumsfeld, Ashcroft , Tenet, and Cheney, on behalf of and with the certain concurrence of Bush.

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