Should Berkeley Fire John Yoo??? Forum

[badlydrawn]

If he ends up disbarred he should be fired. Otherwise, he should be allowed to continue to teach. I think Justice Thomas is a nutcase, but he has an interesting legal opinion. Same with Yoo.

Tyranny dressed in the trappings of mere matter of Constitutional interpretation is not "an interesting legal opinion."

[rayiner]

I think they should keep him around. I loved Face/Off.

[Lowndes]

As a Berkeley student who has taken a class from Yoo I don't think he should be fired. (1) He is an excellent teacher who cares a lot about his students and doesn't let his political opinions come into the classroom at all. (2) I believe in Academic Freedom and it would be a scary state of affairs if we started firing people we disagree with.

[sbalive]

As a Berkeley student who has taken a class from Yoo I don't think he should be fired. (1) He is an excellent teacher who cares a lot about his students and doesn't let his political opinions come into the classroom at all. (2) I believe in Academic Freedom and it would be a scary state of affairs if we started firing people we disagree with.

The issue is not whether you disagree with him. The issue is whether he did something that was both unethical and actively harmful. Just off the top of my head, the correct analogy might be to a medical researcher who uses an experimental drug or performs an experimental procedure while lying to the participants or in some other way doesn't get informed consent. It's not a question of academic freedom at that point, it's a question of professional ethics.

Again, I'm not saying that he should lose tenure or be fired. Although, I'm a little concerned that The Nature of the Legal Profession as we see it in the US is such that what he does could be construed as being (a) sanctioned and (b) covered by free expression / academic freedom. A doctor who feeds an infant mercury tablets because she believes it helps prevent asthma would be seen differently - no matter how great she is in teaching a classroom of med students. Of course, if you don't think what Yoo did was as bad as that, than that's an argument - but assert that point.

[Oblomov]

As a Berkeley student who has taken a class from Yoo I don't think he should be fired. (1) He is an excellent teacher who cares a lot about his students and doesn't let his political opinions come into the classroom at all. (2) I believe in Academic Freedom and it would be a scary state of affairs if we started firing people we disagree with.

Just to play Devil's advocate, he wouldn't be fired for stating his opinion. Torture memos are not law review articles. He would (potentially) be let go for his actions, not his opinions. Clearly it is okay to fire a tenured prof for moral turpitude (like when he or she rapes a student), what about when they provided material support for that moral turpitude?

As I stated, I don't think he should be fired, but not because of reasons of tenure privileges or 1st amendment --those don't hold up to criminal acts. I just don't think the criminal acts he may (or may not) have committed (for which he should be prosecuted) are germane to his being dismissed.

[sbalive]

As a Berkeley student who has taken a class from Yoo I don't think he should be fired. (1) He is an excellent teacher who cares a lot about his students and doesn't let his political opinions come into the classroom at all. (2) I believe in Academic Freedom and it would be a scary state of affairs if we started firing people we disagree with.

Just to play Devil's advocate, he wouldn't be fired for stating his opinion. Torture memos are not law review articles. He would (potentially) be let go for his actions, not his opinions. Clearly it is okay to fire a tenured prof for moral turpitude (like when he or she rapes a student), what about when they provided material support for that moral turpitude?

As I stated, I don't think he should be fired, but not because of reasons of tenure privileges or 1st amendment --those don't hold up to criminal acts. I just don't think the criminal acts he may (or may not) have committed (for which he should be prosecuted) are germane to his being dismissed.

Wait - I'm up to you to the point where there's ambiguity here, but if he were found to have acted criminally acting in a function as a lawyer, he would belong nowhere near a faculty of Law. Maybe he can teach political science or philosophy, but Law is a profession, and Law schools are professional schools.

[Lowndes]

I think Dean Edley summed it up nicely in a recent comment:

?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?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met."

Many in the press want to talk about how he is a war criminal and what he did was clearly wrong. However, that is by no means the consensus in the legal community. That was the point about Academic Freedom I was making earlier. John Yoo has not been convicted of any illegal acts nor is there a consensus of whether his acts were unethical or not.

I certainly disagree with the legal analysis of the memo's but that doesn't really matter for this question.

[Tave]

He willingly and knowingly broke the law.

Which law would that be?

[Lowndes]

He willingly and knowingly broke the law.

Which law would that be?

Yes, please state the law he broke.

[sbalive]

He willingly and knowingly broke the law.

Which law would that be?

Yes, please state the law he broke.

I guess the issue is this. If professional ethics in Law = you don't break the law, that's very limiting. Should we allow law to be a tool for acts we consider evil? Law is unique among professions in considering almost no social responsibilities.

[JJim1919]

For those who think Yoo should be fired, please read this article by Brian Leiter.

http://leiterlawschool.typepad.com/leit ... int-1.html

Main point..

1) UCB has no legal authority to fire him under their guidelines for tenure.

[Oblomov]

Wait - I'm up to you to the point where there's ambiguity here, but if he were found to have acted criminally acting in a function as a lawyer, he would belong nowhere near a faculty of Law. Maybe he can teach political science or philosophy, but Law is a profession, and Law schools are professional schools.

I thought about this. Do you really want a law prof who is legally barred from the practice of law? But really, why not? First, it's Berkeley. How many of the profs there really ever practiced any more than he did? He probably shouldn't be teaching an ethics class, to be sure, but Con Law and political science aren't all that far removed. It would be okay in one building and not another?

Another point: while not forever barred, I'd be willing to bet that a lot of top law schools have a tenured faculty member kicking around who never went to law school (probably a history/poli phd or MBA w/ experience). It's not like you must be legally qualified to be an attorney in order to teach at a law school, as absurd as that sounds on first hearing.

[sbalive]

For those who think Yoo should be fired, please read this article by Brian Leiter.

http://leiterlawschool.typepad.com/leit ... int-1.html

Main point..

1) UCB has no legal authority to fire him under their guidelines for tenure.

I think it's fascinating that there is no such thing as "research misconduct" in the eyes of legal scholars.

In the 1930s, there were similar views among physicists and biologists. Things that would easily fit the definition of misconduct today were considered acceptable.

[Lowndes]

He willingly and knowingly broke the law.

Which law would that be?

Yes, please state the law he broke.

I guess the issue is this. If professional ethics in Law = you don't break the law, that's very limiting. Should we allow law to be a tool for acts we consider evil? Law is unique among professions in considering almost no social responsibilities.

Well, professional ethics in law don't just equal you don't break the law. If you are arguing a professional ethical violation then point to a specific rule that he violated. It doesn't mean much if you just sit back and say he violated the law or he violated an ethical duty.

[JJim1919]

He willingly and knowingly broke the law.

Which law would that be?

Yes, please state the law he broke.

He broke the Convention Against Torture, which was signed by the US, and ratified as law. The question is, of course, whether water boarding and the stress positions actually constitute torture. Nevertheless, as my previous post states, he would have to be found guilty in a criminal court before he could be ousted from berkeley.

http://en.wikipedia.org/wiki/United_Nat ... ies_of_CAT

[Lowndes]

Wait - I'm up to you to the point where there's ambiguity here, but if he were found to have acted criminally acting in a function as a lawyer, he would belong nowhere near a faculty of Law. Maybe he can teach political science or philosophy, but Law is a profession, and Law schools are professional schools.

I thought about this. Do you really want a law prof who is legally barred from the practice of law? But really, why not? First, it's Berkeley. How many of the profs there really ever practiced any more than he did? He probably shouldn't be teaching an ethics class, to be sure, but Con Law and political science aren't all that far removed. It would be okay in one building and not another?

Another point: while not forever barred, I'd be willing to bet that a lot of top law schools have a tenured faculty member kicking around who never went to law school (probably a history/poli phd or MBA w/ experience). It's not like you must be legally qualified to be an attorney in order to teach at a law school, as absurd as that sounds on first hearing.

[Tave]

He broke the Convention Against Torture,

He did?

Uh, not according to any court.

[sbalive]

I guess the issue is this. If professional ethics in Law = you don't break the law, that's very limiting. Should we allow law to be a tool for acts we consider evil? Law is unique among professions in considering almost no social responsibilities.

Well, professional ethics in law don't just equal you don't break the law. If you are arguing a professional ethical violation then point to a specific rule that he violated. It doesn't mean much if you just sit back and say he violated the law or he violated an ethical duty.

I'm not arguing that point. I'm just throwing out the possibility that this case reveals that the professional ethics that govern lawyers and legal scholars are incomplete. Lots of professions have developed new ethical rules in response to events that demonstrate the limits of the rules which were already in place. Right now, other than plagiarism, legal scholars can pretty much do whatever they want. Is that a good thing?

[Tave]

I think it's a wonderful thing that legal scholars are allowed to interperet the law as they will. Should we censure them to preclude any unpalatable views and opinions? No. We let those opinions come forth and allow the legal community to judge them on their merits.

[heyyitskatie]

So basically, Yoo would have to be convicted in some sort of war crimes tribunal (or something other than the university) in order to get fired? (According to the Leiter article)

I'm trying really hard to understand the legal/professional side of this and not just be pissed off at Yoo...I understand that he's supposedly a good teacher, and also that academic freedom is incredibly important...but I can't help but feel like an apologist when I admit that Berkeley can and should apparently do nothing...

[sbalive]

I think it's a wonderful thing that legal scholars are allowed to interperet the law as they will. Should we censure them to preclude any unpalatable views and opinions? No. We let those opinions come forth and allow the legal community to judge them on their merits.

That argument asserts that how those interpretations are actually used is not the responsibility of the scholars who developed them.

[Tave]

That argument asserts that how those interpretations are actually used is not the responsibility of the scholars who developed them.

Yes it does.

Should Wagner and Nietzsche be held accountable for the Holocaust?

[sbalive]

That argument asserts that how those interpretations are actually used is not the responsibility of the scholars who developed them.

Yes it does.

Should Wagner and Nietzsche be held accountable for the Holocaust?

This is really closer to asking whether the bureaucrats who wrote the policies in Berlin should be held accountable... But, yeah, that's actually a good question. One good enough for people to actually think about and argue over, if you'd like to search around for it.

I don't know if this is a worthwhile discussion to continue. But, I do think it's raised some points that I'd like to investigate further on my own.

[asealclubber]

As far as I know, although Prof. Yoo's analysis is criticized by many, there isn't a consensus in the legal community that his arguments are completely ridiculous. Why are many people here simply assuming that he violated professional ethics---if he backed up his positions with somewhat plausible interpretations of law, then how was he professionally unethical?

[badlydrawn]

He broke the Convention Against Torture,

He did?

Uh, not according to any court.

Please. By sheer ontology he has. Of course, in a court of law he would be presumed innocent. Should no one be arrested, tried and prosecuted in a court for a violating the law simply because a court has deemed the individual beforehand? Come now.


From Thomas's dissent in Hamdan, h/t Glenn Greenwald (Greenwald: "Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so"):
"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions)."