Does the Other Shoe Ever Drop?

If you’ll recall, my initial statement on Ward Churchill was that I found his scholarly work extremely weak, and agreed that his case raised questions about standards and expectations in academic life, particularly in programs that see identity as a crucial source of scholarly or intellectual capital.

If the heart of the matter is standards, however, then the continuing work is to define what constitutes a minimum expectation for scholarly ability and performance, and to respond evenly to breaches of that expectation. Otherwise, complaints really are just “I don’t like or agree with Ward Churchill or [insert name here], ergo, throw the bum out”.

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?

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35 Responses to Does the Other Shoe Ever Drop?

  1. hestal says:

    John Yoo will appear on Conversations with History on 4/4. I get it on UCTV @ chnl 9412 on dish tv. It was on yesterday and I watched the start for just a few minutes and then was called away. This is what I found @

    “Conversations host Harry Kreisler welcomes Professor John Yoo of UC Berkeley for a discussion of Presidential war powers. Professor Yoo analyzes the situation confronting the United States after the 911 attack and explains the development of the legal justifications for the Bush’s administration’s response. Topics addressed include the memorandum on torture, the interface between law and politics, secrecy and democracy, and the Bush legacy.”

  2. hestal says:

    Forgot to say that I think he is an idiot, a dangerous idiot.

  3. evangoer says:

    No, because John Yoo is not a hippie.

    This has been another edition of simple answers to silly questions.

  4. Dennis Nolan says:

    I trust your question isn’t serious. If you did intend it seriously, it fails because both premises are false. First, as silly as Churchill’s “scholarship” was, Colorado DID accept it. They hired him and retained him (and, I think, promoted him) despite his scholarly weaknesses. They began to look more closely only after his stupid public statements produced widespread condemnation of his employer. When they did look into what he was doing, they found repeated and blatant plagiarism. So the only part of his scholarship they found unacceptable was the part he plagiarized. Chances are that if he hadn’t plagiarized, he would still be in his comfortable position there (that is, if the university hadn’t offered him so much money to go away that he would have quit). So far as we know, Yoo didn’t plagiarize anything.

    Second, Yoo’s torture memo wasn’t “scholarship.” It was legal work for hire, produced while he was on leave from the university. In that sense, it was in the same category as a memo one of his colleagues might write while on leave working at a law firm. Whether it was good, bad, or indifferent, no law school university would use it when evaluating a faculty member’s scholarship when he returned to Berkeley.

    What they would consider is his regular legal scholarship. I haven’t read it myself so I wouldn’t offer an opinion on its merits. I do note, however, that he publishes books with respected publishers, e.g., The Powers of War and Peace: Foreign Affairs and the Constitution after 9/11 (University of Chicago Press, 2005) and the forthcoming War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press, 2006). He also has a lengthy list of articles in the very top law reviews, including Chicago, Yale, Cornell, Stanford, and more. His scholarship, in short, is at least as good as one would expect for a faculty member at his (very good) law school.

    I suspect your real question was “why would Berkeley have a faculty member who would write the torture memo?” The answer is so obvious that I can’t believe you don’t already know it. In addition to his objective qualifications, he has tenure. I’m sure Berkeley would be happy to have him move on, but it couldn’t, without looking absolutely ridiculous, try to fire him because of a memo he wrote while working for the government.

  5. Timothy Burke says:

    You’re right that I’m not being entirely serious. But I am interested in how “standards” are used with such inconsistency by partisans who complain about academic life. Yoo’s books are largely justifications for his views of executive power, which I think the memos suggest are both willfully ignorant about constitutional law and chilling in their implications. Churchill, we should recall, had quite a long record of publication which at first glance many scholars would take to have been at least somewhat reputable–there were a few lonely voices in Native American Studies who had taken the time to critique his work, but they were largely overlooked until the “little Eichmanns” comment circulated–a comment which is arguably as peripheral to Churchill’s work as a scholar as you see the torture memos being to Yoo.

  6. Dennis Nolan says:

    Sure, people can use “standards” largely as they like. This case just doesn’t seem to reflect that problem. Again, Churchill was a blatant plagiarist, so almost ANY standard would have tripped him up. If anything, it shows that garbage published in a trendy area, by someone who claims the right authenticity, will get you tenure and more.

    As to Yoo, have you actually read his books or are you just extrapolating from his torture memo to his later writings? Do you really believe that the University of Chicago press and the Atlantic Monthly press would publish them if they were simply “justifications for his views of executive power?”

    Moreover, Yoo received tenure in 1999, before he worked at Justice and long before those books, presumably on the basis of his law review articles in the previous six years. No one has suggested that his publications before his time at Justice were in any way deficient. Boalt Hall would never have tenured him if he were “willfully ignorant about constitutional law.” Thus there doesn’t seem to be any twisting of “standards” (to borrow your quotation marks around that term) in order to benefit him. To the contrary, Berkeley is one of the most liberal law schools in one of the most liberal universities in the country. It would be far more likely to conclude that he had to be better than his peers in order to be accepted in that bastion of the Left.

  7. Ralph says:

    Actually, the parallels are stronger than you admit, Dennis. Churchill was tenured at the University of Colorado before he published most of his dubious work.

  8. hestal says:

    So, this guy is safe? He gave phony legal cover to let a sociopathic president order torture in the name of the United States. But tenure protects him? I can understand the Justice Department and the courts giving him a pass because they are politicians, but now academia gives him a pass because of tenure? Well, I say ____ tenure!

  9. Dennis Nolan says:

    Ralph: he may have had tenure by the time he did some of his dubious work, but that wouldn’t protect him from plagiarism charges. since there’s no suggestion that Yoo plagiarized, there isn’t any parallel.

    Hestal: whatever you think of his torture memo (and I presume that you, like me, know nothing of his other work while at Justice), it has nothing to do with his academic position back at Berkeley. Writing that memo didn’t violate any laws that I know of. Are you suggesting Berkeley should strip him of tenure and fire him? On what basis? They evaluated him based on his pre-Justice work and he continues to publish in great sources since then.

    Is he safe? What in the world does that mean? He’s now back in a university. Are you worried that he might write a bad memo for the law school? Or that he might write dangerous things in his next law review article? Or that he might say something wrong to his students? If those are your fears, don’t we need some evidence that’s what he’s doing? And if you’re really worried about bad writing or bad teaching, I bet both of us could come up with a long list of people who should get fired for those reasons before we’d reach his name.

  10. Ralph says:

    Dennis, What about the three or four Harvard Law plagiarists? They’ve all survived. Churchill’s violations weren’t only plagiarism. That was only one of many charges against his scholarship.

  11. Dennis Nolan says:

    None of the Harvard people did anything remotely like Churchill. He took whole works and put his name on them. They took the cheap shortcut of cutting and pasting bits and pieces. That’s bad enough, but what made it worse was that they tried to blame their research assistants. They certainly deserved some penalty but trying to fire them would have been hopeless.

    In any event, they had strong reputations based on non-plagiarized work to balance against their errors. Churchill had nothing. Once it turned out he lied about his ethnicity, he couldn’t even count on other Indian scholars to back him up. Now, if it turns out that Alan Dershowtiz lied about being Jewish, THAT would be a scandal.

  12. Jmayhew says:

    Could you fire Goebbels from your law school? As long as he didn’t plagiarize, I suppose you couldn’t. What harm could he do, after all? He might try to get the music school to program some Wagner? Reasonable people can disagree about whether it’s ok to be complicit in war crimes and subvert the constitution.

  13. hestal says:

    Dennis Nolan,

    I mean is he safe from the punishment he deserves. What he did was wrong and to point to his record in other areas is simply a pleading to lighten his sentence. He is guilty of a crime against humanity, just as surely as GWB is.

    This legalistic argument that you are putting forward is a mark of our culture. For example, let me point to Hillary Clinton and her latest remarks about gays. I am sure you don’t like Hillary so it should be easy for you agree with me that she shamed herself. But, fair warning, what she did is what you are doing.

    Tonight, according to Yahoo, Hillary talked first about her gay friends, she says that they are a part of her life. Then she joined you in presenting a legalistic argument. Yahoo said, “She said that when they ask her why they can’t get married, she tells them marriage is a state law. She said that fact helped defeat a constitutional amendment to prohibit same-sex weddings that she said would “enshrine discrimination in the Constitution.” Sounds like her gay friends are not very smart, not knowing that marriage is a state law, just as I don’t really understand how tenure absolves one of all future crimes against humanity.

    She does promise to do several things to support gay rights if she is elected, but the key is that the states will have to do the heavy lifting, and she warns us, “I anticipate that there will be a very concerted amount of effort in the next couple of years that will move this important issue forward and different states will take different approaches as they did with marriage over many years and you will see an evolution over time.”

    As we know Jim Crow passed through an “evolution over time,” about 90 years as I recall. So I predict that all the adult gay citizens who are alive today will be dead long before gays and straights have equal rights in the eyes of the law in all jurisdictions in all states. In the words of Little Jimmy Dickens, Hillary is just telling her “gay friends” to “take an old, cold tater and wait.”

    So it is a fact that marriage is several state laws, but that is not the question for the President of the United States. The question is whether the Constitution, which she is sworn to uphold and protect, denies marriage rights to gays. That is the question. Since it does not, then she will be bound to propose an amendment immediately upon taking office to make marriage a federal law giving all citizens identical rights. The question is what is right.

    But many people in our society, particularly those who have secure positions, don’t want to rock the boat. They want the status quo. You can bet that there would be a great noise if “tenured” professors were denied the right to marry.

    But there are some things that are just plain wrong and there should be consequences for doing those wrongs. Denying gays the same rights as straights, regardless of legislative history in the states or Congress, is one of those things that are just plain wrong. Giving legal cover for a national policy of torture is another. There should be consequences and “tenure” should not be a protection. I’ll bet you that “tenure” would be revoked if the holder were suddenly arrested for having child pornography on his home computer. But if I am wrong, do you think that “tenure” should offer such protection?

  14. Dennis Nolan says:

    Hestal: Leaving aside the parts of your message that don’t have anything to do with Churchill and Yoo (e.g., Hillary, Jim Crow, and gay marriage), let me get to the part that does. Whatever Yoo did wasn’t illegal. He served in the Justice department and wrote a memo that seems to deserve much of the criticism it got. Maybe we should pass a law that would send Justice department lawyers to jail for writing memos like that, but so far Congress hasn’t seen fit to do so. And since it wasn’t illegal, it’s not a basis for firing Yoo.

    I’m no great fan of tenure, but even without it a public law school like Berkeley couldn’t fire a faculty member for writing unpopular things on matters of public concern. You see, there’s this little thing called the First Amendment. If you really think there is some law that would authorize Berkeley to fire you, please cite it. So far all you’ve done is say that you really, really, really dislike Yoo because of his memo and that you’d like the state of California to punish him for writing it. We understand your emotions, but they have nothing to do with the law or with justice.

  15. Ralph says:

    Dennis, I’ve looked around the web and I cannot find conservative attorneys who defend the Yoo memo and its legal reasoning. I think that does raise a question about what degree of professional malfeasance or misfeasance would it take to justify revoking the tenure of a law school professor. That *isn’t* a free speech issue nor is its consequence sending Yoo to jail. It *is* a question of academic consequences for professional malpractice.

  16. Timothy Burke says:

    I’m inclined to defend Yoo on the same grounds that Churchill was defended by many: he was hired, and that was the basic mistake. Once he’s hired and tenured, you can’t undo it. So I agree with Dennis, but I think this logic probably should have extended to Churchill, that his plagiarisms were magnified by a process of politically interested scrutiny. My larger point isn’t really about Yoo at all, but about consistency, which is one of my regular hobgoblins.

  17. nord says:

    Ralph, you may want to read comments on the Yoo memos. While hardly elevating them, I think they have some pretty harsh commentary on some critics of the memos. The last time there were major military operations on US soil was the civil war. It sucked. With modern media (and lawyers) it would not have been fought the way it was. How many innocent civilians of Atlanta, Vicksburg, heck even Gettysburg, would have had legitimate wrongs to sue the US or CS militaries for wrongful death, imprisonment, damage/theft of property. Lincoln would have had some lawyer respond to these complaints … and the conclusion would have been similar to what powers Bush has.

  18. Timothy Burke says:


    The scale and nature of the Civil War, for one, was so different from 9/11 that anyone, for any moment, who sees them as basically comparable crises in terms of what they mean for the legal and political character of the U.S. government is intellectually bankrupt. The consequences of granting executive power in the fashion that Yoo argues for in the memos are also vastly different, because the “war on terror” that supposedly commenced with 9/11 is by necessity, intrinsically, an indefinite war with no end, no boundaries. Hence if you accept Yoo’s arguments in the memos, you accept that the Constitution has been permanently set aside in some key respects, and that the powers of the executive branch have been permanently elevated to effective supremacy. Lincoln–who had many critics on Constitutional grounds–plausibly contended that what he was doing for expediency was in response to a finite emergency of a wholly unique character, and a response which necessarily had a concrete end which would either be achieved or frustrated in measurable time.

    If 9/11 was sufficient cause to void many specific provisions of the Constitution and grant the executive unlimited discretionary authority over anything even vaguely connected to war-making power, then so was the 1993 World Trade Center bombing. So was Timothy McVeigh’s bomb. So were hijackings in the 1970s. So was the Weather Underground. Anything and everything that could be said to portend a possible threat to the continued survival of the American republic, from enemies within or enemies without, would be sufficient.

  19. Dennis Nolan says:

    Ralph: his academic duties are teaching, research, and service (committees, professional associations, and the like). The memo was not, and was not intended to be, academic research. His books and law review articles are. So far as we know, his teaching, research, and service at Berkeley are all fine. One’s outside activities, like Yoo’s service at Justice, might make one’s colleagues doubt one’s ability, but the proof would still have to be his published scholarship. If you believe he’s deficient in that regard, give us some evidence. You might start with his latest book at the U. of Chicago press.

    And yes, firing him *would* be a matter of free speech. First Amendment law is very clear: a government employer may not punish an academic for his or her extra-university speeches or writings on matters of public concern, no matter how much it might disagree with them.

    Tim: I too value consistency. As I wrote before, the problem here is that the two cases aren’t comparable. Whatever motivated the (much belated) investigation into Churchill’s writings, Colorado caught him in the academic mortal sin of blatant, repeated plagiarism. If they didn’t find plagiarism and just fired him for his stupid statements, you and I would have been on the same side of the barricade. But having caught him, Colorado had to fire him, just as any respectable university would regardless of his politics.

    In contrast, Yoo has, so far as anyone has suggested, committed no academic sin. His sole alleged flaw, on this blog as on others, was in writing a memo while outside of academia that many people dislike and some with expertise in the area find seriously flawed.

    Firing Churchill is therefore not inconsistent with retaining Yoo. A better comparison would be between Churchill and other comparable plagiarists — those who borrow whole works, not the piddling lifting of sentences by the Harvard folks. I find it hard to imagine a good university retaining such a plagiarist, whatever his or her political leanings. (Having written that last sentence, I have to confess that Columbia may be an exception. It apparently sanctioned but did not fire Madonna Constantine, the woman who claimed someone put a noose on her office door, for publishing others’ work as her own some two dozen times over the past five years. A cynic might suggest that her quick playing of the race card probably saved her job. But I digress.)

  20. Timothy Burke says:

    Here’s an interesting side question, though. To what extent do academic standards govern tenured academics who render expert scholarly opinions, consultatations, and so on while working in another capacity, when the expertise that they are offering is the same as the expertise which they express in their faculty position?

    The practical, lived answer is: they don’t. But ought they? Why aren’t Yoo’s memos “scholarly publications”? Yes, they didn’t go through peer review, but not everything that we judge to be scholarly does. They’re memos that state an expert, scholarly opinion that is directly related to the expertise that Yoo offers as a faculty member.

    Obviously, this is a tricky thing. On this blog, I frequently speak to things which are not directly tied to my specialized expertise. Would I want to be held accountable for them to the same standard that I am accountable for what I write in a peer-reviewed manuscript? No. Would I want to suppress the ability of academics to operate as public intellectuals, speaking to a variety of issues of concern from the general perspective of an educated or erudite person? No.

    But the line is hard to draw sharply in the other direction. The reason that Yoo was the author of the torture memos was precisely that he was asked to render an expert legal opinion, not that he was just a smart guy whose political insight was judged to be valuable counsel and advice. If a historian were to testify as an expert in a legal case about a matter of historical fact, I’d argue that this would be a role which was “scholarly” in some direct sense, and if that historian were to give testimony that was outrageously inaccurate, possibly with a willful intent to manipulate the outcome, I’d see that as a case of scholarly misconduct, not just “whatever you do with your free time”. I don’t know that I see clearly why Yoo’s memos are absolutely not “scholarly works”.

  21. Dennis Nolan says:

    Now you’ve raised an excellent question. Like most excellent questions, it doesn’t have a clear answer.

    One distinction I’d make is whether the academic’s work for hire was intended as scholarship. I’ve known historians, geographers, economists and geologists who have served as consultants or expert witnesses in court cases. When they are hired by a party, their job is to find evidence to support that party’s case. There’s nothing wrong with that. It’s the way the adversarial system works. But what they do there shouldn’t be confused with scholarship, and their schools shouldn’t fire them because they disagree with the hiring party’s position or even because they think the academic’s work for that party is substandard.

    On the other hand, if an academic produces a work that purports to be scholarship, but does so in the service of a client, the university should evaluate that work as well as any other scholarship. If it proves biased or shoddy, then of course it would count against the academic. A good example might be scientists who conduct studies about the safety of a drug while being paid by the drug’s manufacturer. Again, there’s nothing inherently wrong with that, assuming full disclosure. But because the work claims to be objective scholarship, the university should examine it just as it would any other scholarly work.

    I’m not sure where Yoo’s memo would fall on that scale. Yes, he was working as an expert, but he also had a client of sorts. But let’s assume for the sake of argument that he wore the former hat. The very worst that should happen, it seems to me, is that the next time he comes up for review or promotion or a chair or whatever, his dean should consider the merits and demerits of that memo along with everything else in his file. Agreed?

    What bugs me about many of the comments here and elsewhere is that they reduce the proper evaluation of a faculty member to a crude and simplistic test. Hestal on this blog, for instance, seems to say that Yoo wrote a memo that has received a lot of criticism and therefore Berkeley should fire him regardless of what else is in his file. (I’ll assume for lack of evidence to the contrary that Hestal has actually read the memo and knows enough about international and constitutional law to judge its quality. If he hasn’t or if he doesn’t, then he shouldn’t be telling Berkeley what to do.)

    And if you’ll pardon me, Tim, your own equation of Yoo with a serial plagiarist like Churchill who apparently has no redeeming academic value even in his other publications is almost as troubling. It’s unfair and simplistic. Here’s an alternative: deal with Churchill on his merits and Yoo on his. Good universities fire serial plagiarists. They don’t fire faculty members simply because of their lawful outside activities.

  22. Timothy Burke says:

    Ok, I agree with that. I am being quite consciously mischievious in the comparison. This is because I think that a tremendous amount of what has been said about the work of scholars who have some other beef with academics is wrong-headed, for some of the reasons that you complain about the tests people are placing upon Yoo. For example, as I’ve said many times, I strenuously object to the way that the scholarship of some faculty at Duke has been read dismissively by people who object to what those scholars did in relationship to the lacrosse scandal. Their conduct in that case is objectionable, but reading their scholarship is a different kind of critique and requires a different kind of care and regard.

    Which doesn’t mean that I think Yoo should get off scot-free, any more than I think the mistakes of the Duke faculty have no implications for their academic reputations or work. In fact, I would regard someone who gave expert testimony in an adversarial context that was significantly in breach of what they would say as scholars to be engaging in misconduct that might call their general reputation as a scholar into disrepute. It’s not the same thing as plagiarism, not an offense that requires questioning someone’s tenure, someone’s right to be an academic. It doesn’t mean that you start holding those people to standards which others are not held to. I do think there is some overlap, though, between what we do in the public arena and what we claim for our scholarship, and that some of what we do as public actors, when it involves trading on our expertise or scholarly knowledge, should rebound on how we are understood and respected as scholars.

  23. hestal says:

    Dennis Nolan,

    I do agree with you to a small degree. The difference between right and wrong is ??simple,?? but it is not a ??crude and simplistic test.??

    I do not say that Yoo should be punished because he ??wrote a memo that has received a lot of criticism.?? I say he should be punished for his part of a scheme to create and enact a national policy of torture a crime against humanity. You seem to say that because he has ??tenure?? he should be immune from all adverse consequences flowing from his actions. And you seem to be saying that judging someone??s tenured status and employment should not include questions of right and wrong you seem to say that there are no grounds for removing tenure or censoring an individual for wrong acts. If you are correct and that is the way tenure works in academia, then again I say ____ tenure.

    Insofar as Yoo??s 87-page memo, as you admitted, it has been subjected to lots of criticism. I could get into it with you but there would be nothing of value in such a discussion in fact, it would hardly be a discussion. I expect that you would defend Yoo??s arguments against my criticisms on the basis of his method of Constitutional interpretation. I favor a philosophical approach which is akin to the application of general engineering principles to construction of something very real, like a culture of torture, or our healthcare system. Mr. Yoo, on the other hand, favors a little of this and a little of that. He believes in expediency, or as my father would say: ??He cherry-picks his arguments without regard to the facts or consistency.?? Mr. Yoo makes elaborate arguments that are intended to serve his masters. So you were right, exactly right, when you said that what he did wasn??t ??scholarship??, but ??legal work for hire.?? Because his arguments are some of this and some of that it is clear, to me, and others, that he knew what he was doing. He could not actually show that the President was on the side of the angels but he knew he didn??t have to do that. All he had to do was provide cover. He knew they could freely torture and if the public found out and started asking questions, then they could throw up a smokescreen based on his ??legal opinions.?? So he was either a determined liar in pursuit of an immoral goal or he was a ??hack.?? Herr Burke, ever the softy, called him a ??hack.??

    As an aside, this kind of obfuscation to cover high crimes has matured over the years. When one looks back on Reconstruction, for example, the evildoers were plain spoken. After the last Federal troops had been withdrawn from the South and the southern states started rewriting their constitutions to establish Jim Crow laws, South Carolina senator Benjamin Tillman, responding to pleas for equal rights for blacks and whites in the new document said, ??We have done our level best. We have scratched our heads to find out how we could eliminate every last one of them. We stuffed ballot boxes. We shot them. We are not ashamed of it. The whites have absolute control of the government, and we intend at any hazard to retain it.??

    I say that Yoo, by virtue of his disingenuous memo(s), would, in the same spirit expressed by Tillman, say, ??We have done our level best. We have scratched our heads to find out how we could torture anyone we wished. We have written legal opinions, with phony arguments. We pushed executive power far beyond constitutional limits. We are not ashamed of it. The torturers have absolute control of the government, and we will tell any lie and break any law to retain it,?? but he knows that such plain language might land him and others in jail, but even then in our present world of ??refined and elaborate tests,?? they still might get away with it. But rather than take chances they just obfuscate and move on down the road.

  24. Jmayhew says:

    Are lawyers who commit ethical violations so grave as to be disbarred usually allowed to keep their tenured positions as law professors? In other words, is there some presumption that legal ethics are a condition of tenure? I can imagine a tenured medical school professor losing a medical license for grave misconduct and thus being in some sense disqualified to be a tenured member of the faculty. (Say by taking a sabbatical, going to a third-world country, and conducting cruel medical experiments.)

    Suppose that a law professor took a few years off to work for the mob and crossed the line in a way that she began to advise her clients to break the law in certain specific ways. I don’t think criminal conspiracy is covered under the first amendment.

    So the argument has to come back to whether Yoo’s drafting of that memo crosses that threshold, ethically and/or legally. If it does, it is surely more grave than plagiarism or sexual harrassment–two of the things that can cause you to lose your tenure. If it doesn’t cross those lines, I’d like to know why. Is it simply because he hasn’t been disbarred or prosecuted, and likely won’t be, given the political climate? Or because what he did is really *ok.*

  25. Dennis Nolan says:

    Jmayhew: Yes, losing one’s license or being convicted of a crime might be a basis for getting rid of a law faculty member, provided that holding a license and not committing that crime are stated conditions of employment. You can’t just make these things up afterward, as some posters seem to think. Usually contracts for law professors don’t get into that much detail. For example, most law faculty tend not to be licensed in the state where the law school is located because they came from another state and aren’t practicing law. Some law schools hire people from other disciplines — psychiatry, economics, etc. The lack of a license doesn’t disqualify one from teaching.

    Nobody seems to think of those things at the front end. The result is that later ethical violations are somewhat uneasily squeezed into other bases for removing tenure or, more commonly, the law school buys out the person it no longer wants around.

    In the Yoo case, I’m not aware of any ethical rule that he would have violated even if the memo were as bad as some people (not all) say it is. For all of hestal’s sputtering in his last few posts, he mentions no law or ethical requirement that would provide a basis for firing Yoo. So far as appears, Yoo was asked to give a legal opinion stating what international, constitutional, and statutory law allowed the president to authorize. He did that. Lots of people disagree with his conclusions. Some others (a minority, I think) do not. (I’ll repeat that his memo is not in my area of law so I’m not expressing any opinion on its merits.) If hestal wants to file criminal charges against him for being part of some nefarious conspiracy, let him go ahead. I’ll give very generous odds against conviction. And without some violation of law or code of professional responsibility, Berkeley can’t fire him, nor should we want Berkeley to do so.

    Tim: I think we’ve reached the point of agreement. Yes, criticism from one’s colleagues is the appropriate penalty for doing some professional work they dislike. I’d be very cautious about going down that road, however, because it tends to reinforce the group-think mentality so many disciplines already have. Universities are already so conformist on many political matters that I wouldn’t want to encourage more of the same.

    To give one example: the reasons for job differentiation between sexes are numerous and enormously complicated. Conscious discrimination is one possibility, but not the only one, and certainly not one that explains every case. Several years ago, when female Sears workers brought a class action for sex discrimination, the trial went off on various social science questions like whether women, for cultural or other reasons, sought certain jobs and avoided others. You’d think that would be a subject about which reasonable people and even reasonable academics could disagree. No so. One feminist scholar who testified as an expert witness for Sears was condemned in terms that make Randi Rhodes’s comments on Hillary and Geraldine look tea-party polite. It’s safe to say that she suffered enormously in terms of professional reputation and employability, not because her work was shoddy but simply because she was on the “wrong” side. (Sears won, by the way, so whether she was on the “wrong” side is not at all clear.)

    That happens all too often in higher education. It has made faculties far less interesting than they should be. In the most politicized departments, like minority studies, women’s studies, social work, education, and so on, it’s hard to find anyone who disagrees with the majority on any fundamental questions. The herd quickly ostracizes and punishes anyone who breaks the code. That has nothing to do with scientific fact (the earth is flat, there is no climate change, or whatever). It has everything to do with political ideology.

    Students and teachers alike should want faculties with a wide range of views, from libertarian to socialist, from originalists to “living constitution” lawyers, from traditional literary scholars to Theory people, and much more besides. Instead, each faculty tends to pick a flavor and then hire and tenure only people who like the same flavor. That’s worse than discriminatory: it’s dull. Some readers of this blog may be in more varied places, but I’ve attended three universities and have taught (permanently or as a visitor) in six more, and that, to one degree or another, has been what I’ve found in all of them.

  26. hestal says:

    Dennis Nolan,

    Nowhere in any of my sputtering did I call for firing Yoo. That is a word that you keep trying to put on my lips, but I never uttered it. I have other punishments in mind.

  27. Dennis Nolan says:

    Jail? Summary execution? Drawing and quartering? In any event, we normally wait until the criminal law process is completed before declaring with such certainty that someone is guilty of a crime against humanity. Or were you thinking of something a little speedier, like vigilante justice? Come on, out with it. If you had other punishments in mind and now fault me for not reading your mind, give us the punch line. Since you’ve saved Yoo the trouble of a trial by convicting him in your mind, the least you can do is tell him what punishment he faces. As the Queen told Alice, verdict first, then trial.

    Recall, though, that this whole thread began with Tim’s mischievous equation of Yoo with Churchill and his suggestion that we should treat Yoo the same as Churchill because he is “just as big a hack when it comes to constitutional law as Ward Churchill was when it came to Native American history.” Churchill got fired, something Tim disagreed with, so you can see why one might conclude that Tim’s logic also called for Yoo’s firing. Your 5:33 post complaining about my suggestion that tenure protected Yoo from firing also led me to the conclusion that you believed it didn’t — that is, that he should be fired regardless of tenure. I confess that I didn’t dream you had something more serious in mind when you referred to “the punishment he deserves.” Since I’m not aware of any law he violated, it didn’t occur to me that you were suggesting criminal punishment. In fact, I asked you about three times to tell us what law or ethical rule he violated. Don’t you think it’s about time you either put up or quiet down?

    (By the way, Tim, your initial language was atypically harsh, saying that Yoo made claims “that are just factually wrong or are screamingly disingenuous.” Don’t you owe it to your reader to cite those factual errors and screaming disingenuities? Chapter and verse, and all that. I assume you read the memos before writing that sentence, so it should be easy for you to pick out the portions that are so flagrantly wrong. Or is it enough for a blogger to piggyback on press judgments without having to justify doing so? I don’t find those things in the memos. I fault him instead for his judgment calls.)

  28. hestal says:

    Dennis Nolan,

    I mentioned two: removal of tenure and censure. And I think his actions and those of others in the administration warrant an investigation, but as I said, in the present circumstances that won’t happen.

    As for verdict first and trial next, that is just so much rubbish. The presumption of innocence in not incumbent on me. If I were a juror or serving in some other role in this case then I would disqualify myself. But it is nice to see you seek the protection of the law, when you approve Mr. Yoo’s plan to deny it to others.

    You will have to ask Herr Burke what he meant in his remarks. I know what I meant and you can read what I wrote. If you and Herr Burke think that firing is good enough then that is up to you, but that is not what I suggested. As my father said, repeatedly, “a man who does not read, might as well be a man who cannot read.”

  29. Doug says:

    Here’s my layman’s understanding of what’s in the memo: “The president may authorize people to undertake actions that the government of the United States has, in the past, prosecuted as war crimes and crimes against humanity.” That is, it is Yoo’s professional opinion that the president may authorize crimes against humanity, and no arm of the United States government may gainsay him in any form or fashion.

    Calling it “work for hire” reminds me of “just following orders” in the various Nuremberg trials. Tenure seems a fully second-order question. If Berkeley wants to be known as the place that harbors enablers of war crimes, I suppose that is its business.

  30. Doug says:

    Not kidding with the Nuremberg reference. Harper’s reports:

    The memo was authored by John Yoo. This memorandum was designed to authorize the introduction of torture and other cruel, inhuman and degrading interrogation techniques to be used upon prisoners held at Guantánamo, and ultimately also used in Afghanistan and Iraq. The memorandum authorized waterboarding, long-time standing, hypothermia, the administration of psychotropic drugs and sleep deprivation in excess of two days in addition to a number of other techniques. Each of these techniques is long established as torture as a matter of American and international law. The application and implementation of these techniques was and is a crime. …

    Following the implementation of these techniques, more than 108 detainees died in detention. In a large number of these cases, the deaths have been ruled a homicide and connected to torture. These homicides were a forseeable consequence of the advice that Haynes and Yoo gave.

  31. CJColucci says:

    Lawyers, being whores (as a lawyer, I can say that), will happily argue, for pay, one position for one client today and the opposite position for another client tomorrow. Academics sometimes write things not for pay — at least not directly for pay, though perhaps to gain tenure or sell a treatise — and find themselves embarassed thereby. Samuel Williston, who wrote a treatise on contract law, once argued a case for a paying client. One of the judges taxed him with the inconsistency between the position he was advocating and the position taken in his treatise. Professor Williston mustered up all his considerable sangfroid and blandly replied, “Since I wrote that, Your Honor, I have learned a great deal.”

  32. Doug says:

    Yes, but the day after they argue that the law places no limits on the executive, their profession is over.

  33. hestal says:

    My God, 108 deaths… ?

  34. Doug says:

    Approved almost all the way to the top, according to ABC:

    In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

    The so-called Principals who participated in the meetings also approved the use of “combined” interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

    Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

    The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

    The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

    At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

    As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies. …


    Unless the President himself is engaged with an issue, policymaking doesn’t get any higher-level than the NSC Principals committee. While Bush will have made clear what he wanted, I wonder if he was foolish enough to leave any written, or more likely taped, evidence.

  35. Doug says:

    Why did I think Bush would be ashamed to admit he and his appointees made torture the policy of the United States of America?

    That’s me being wrong. Here’s the Post with a direct quote:

    “President Bush says he was aware that his top aides met in the White House basement to micromanage the application of waterboarding and other widely-condemned interrogation techniques. And he says it was no big deal.

    ‘I’m aware our national security team met on this issue. And I approved,’ Bush told ABC News’ Martha Raddatz on Friday. ‘I don’t know what’s new about that; I’m not so sure what’s so startling about that.’ ”


    Tim, there will be no truth and reconciliation, because the Republicans believe that nothing wrong has been done. Torture is an American value, as far as they are concerned.

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