Should Berkeley Fire John Yoo???

A forum for applicants and admitted students to ask law students and graduates about law school and the practice of law.
SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Wed Apr 29, 2009 8:09 pm

aer wrote:
topdawg wrote:3. As far as the ideals that our country was founded on....go read a little history. Look at how we treated Tories, Native Americans, African Americans, etc. Look at Sherman and the South during the Civil War or the use of napalm in Vietnam. Honestly, the tactics that the Bush Administration used were far more humane and limited than those used during most, if not all, previous wars. War is hell and there are definitely moral gray areas. The Founding Fathers provided Constitutional protections for American citizens, but failed to do so for foreign combatants, so I fail to see what ideals you are talking about (I am not saying upholding certain values or ideals is wrong, I am simply saying that the country was not founded on some ideal that limited the ability of the country to defend itself from outside attack). Do you honestly think they would have opposed dipping someone's head in water? I am not accusing you of this by any means, but it is the outrage in the media and on the left about how waterboarding is pretty much the worst thing we have ever done that reveals that hate of the Bush administration has everything to do with this discussion. As a nation, we have done a lot of bad things in our history (and plenty of good things as well), but this is a small blip in comparison with most of those things. Honestly, the fact that we exercised such restraint with Khalid Sheikh Mohammed when he hinted at future attacks demonstrates an amazing level of respect for human rights.


The ideals this country was founded on include the idea that all people deserve rights and protections. The fact that these ideals have not always been followed does not change the fact that we should follow them and when the government fails to they should be held accountable.

That said, even though I am repulsed by Yoo and his legal opinion, since his actions don't meet Berkeley's requirements for firing him he should not be fired. However, he should be disbarred and prosecuted.


You and others on this board wrongly suppose that simply because the ends of government can be put in such general terms, the means can as well. I take it you're not familiar with what are called the "mixed virtues." read up on LBJ and you'll see what I mean.

aer
Posts: 92
Joined: Mon Feb 23, 2009 5:04 pm

Re: Should Berkeley Fire John Yoo???

Postby aer » Wed Apr 29, 2009 8:24 pm

Honestly, I am not entirely sure what you mean by "mixed virtues." If you will give me a brief definition I will respond to your comment. It is finals week and so I do not have time to read up on LBJ.

Edit: I moved the edit to after SethD's response.
Last edited by aer on Wed Apr 29, 2009 8:57 pm, edited 2 times in total.

eruffin
Posts: 7
Joined: Sat Dec 13, 2008 1:59 pm

Re: Should Berkeley Fire John Yoo???

Postby eruffin » Wed Apr 29, 2009 8:44 pm

So I've read this whole thread, and just want to throw a question out at you guys. I ask seriously. Does it matter at all if many American people think torture is at least sometimes permissible? I ask because of this:

http://www.fivethirtyeight.com/2009/04/ ... lling.html

I assume some of you guys are familiar with 538. Silver calls himself progressive, but even as someone pretty libertarian-conservative, I think his analysis is generally insightful.

Anyway the link contains data from a pew research poll. The question is "Torture to gain important information from suspected terrorists is justified..." The choices are often, sometimes, rarely, and never.

The results have held fairly confident over several months. 25-30 percent say "never" and low single digits say "don't know."

This means that somewhere around 65 percent of the American public is willing to torture at least rarely. To the extent that the number of terror suspects actually waterboarded (granting that its torture, which it appears to be) seems to be in the single digits is this what the Bush administration policy amounted to, something over 60 percent of Americans would at countenance rarely?

I ask, mainly, because of moral absolutism tossed about through much of this thread.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Wed Apr 29, 2009 8:46 pm

aer wrote:Honestly, I am not entirely sure what you mean by "mixed virtues." If you will give me a brief definition I will respond to your comment. It is finals week and so I do not have time to read up on LBJ.


Examples of mixed virtues: lying and cheating in order to promote an agenda of racial equality; committing unjust acts in order to establish a system of trial by jury so that justice can be served; committing crimes against humanity (e.g. bombing Dresden to the point that people's body fat turns to liquid, from the heat, and begins to run down the pavement) in order to squash a genocidal regime, i.e. Nazism; etc.

aer
Posts: 92
Joined: Mon Feb 23, 2009 5:04 pm

Re: Should Berkeley Fire John Yoo???

Postby aer » Wed Apr 29, 2009 8:56 pm

I edited my original post before you responded, so I am moving my response here.

If I believed that performing an act of torture would save thousands of lives and not have other consequences then, while still finding the act of torture deplorable, I would support its use. The actions that Yoo supported do not meet this guideline. First, torture is normally not effective and gives false information. Second, there are consequences to using torture to gain information. The rest of the world knows that the United States has committed acts of torture (they have known long before Obama released the memos) and this impacts their view of the US. Not only does it contribute to the likelihood that our troops will be tortured if captured, but it can impact the willingness of other countries to sign on to our foreign policy agenda and encourage members of ethnic groups that are targeted to develop a hatred of the US. This can lead to a decrease in safety in the US and an increase in the need to gather intelligence. I honestly don't believe that the benefits of torture outweigh the risks.

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Wed Apr 29, 2009 10:25 pm

SethD2767 wrote:I can see now that you have an all-or-nothing approach to this issue.

SethD, topdawg was misconstruing the left's opposition to torture, seeing it as thin veil for knee-jerk hatred for all things associated with the Bush administration. I was hardly referring to solely my own position. Whichever side one falls on, he or she should care deeply if our government subjects those in our custody to extreme mental and physical pain and, in some cases, death. Indifference to this fact does not make one more reasonable, fair-minded, or prudent.

SethD2767 wrote:Unfortunately, political life does not afford us with the opportunity to cling to absolute principles (such as a principle opposed to torture). The highest principle in political life is prudence and even then there is a higher principle, a higher prudence, which can call itself into question. Imagine a person on a boat, who shifts his weight from left to right according to how the boat is affected by the waves. If he were to stand still--stand firm, if you prefer--he would be thrown off. It is a similar situation in the case of torture. No one advocates torture in all cases except the extreme; but, you won't even accept it then!


All very lovely and sententious, but it misses the point.

To my knowledge, no one in this thread has a political life, so we need not worry about political lives in this case. Nevertheless, the law not only affords us the opportunity to cling to absolute principles, but in this case even requires it (from Convention Against Torture):

"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Now, you might argue that the highest principle one can have is the prudence to discern which laws we should abide and which laws we should systematically violate with impunity. However, I submit that if an executive body wishes to actively disregard a treaty with the full force of law such as the Convention Against Torture, the legislative body must explicitly grant this power and formally bow out of our country's legal obligations. I'm sorry if my absolutism ties interrogators' wrists too tightly.

If you'd like, you can concede that torture is legally impermissible but, in extreme cases, morally permissible. I suggested earlier that torture might be morally justifiable in the hypothetical-and--to-public-knowledge-hitherto-still-relegated-to-24-episodes "ticking time bomb scenario." Let me be more specific. In this case, the torturers must ensure these conditions are met: A) they are certain beyond any doubt that their detainee participated in a conspiracy and possesses intimate knowledge of a plot C) the threat was known to be imminent--in other words, the torturers could not be merely fishing for information D) the chief target was a civilian population E) torturing the detainee is a last resort to prevent the plot from unfolding (after all, it's demonstrated unreliability should render it an act of desperation)

I haven't heard or seen anything that would leave me to believe this has ever happened.

SethD2767 wrote:To fight a war like gentlemen, I'm afraid, is a luxury that we cannot always afford. In order to save the world from the specter of National Socialism, for instance, we had to in some sense fight like the Nazis. Had we lost, many of our own generals would have likely been tried for crimes against humanity.


--Except that abstaining from torture is, by all perceivable accounts, a luxury that we can afford. Since extreme cases such as the one outlined above have never occurred, we have not met the threshold in which torture would be morally permissible. In any case, torture is still plainly illegal, and those suspected in developing and implementing a regime of torture should be investigated and, if found guilty of offense, prosecuted to the fullest extent of the law. Which gets back to the original question and my original answer. John Yoo's conduct should be investigated. If his memos demonstrated professional incompetence, he should be sanctioned accordingly. If he did not draft those memos in good faith, he should be held accountable.

John Yoo should probably still be allowed to teach.

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Wed Apr 29, 2009 10:47 pm

By the way, I'm a dude.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Wed Apr 29, 2009 10:52 pm

badlydrawn wrote:
SethD2767 wrote:I can see now that you have an all-or-nothing approach to this issue.

SethD, topdawg was misconstruing the left's opposition to torture, seeing it as thin veil for knee-jerk hatred for all things associated with the Bush administration. I was hardly referring to solely my own position. Whichever side one falls on, he or she should care deeply if our government subjects those in our custody to extreme mental and physical pain and, in some cases, death. Indifference to this fact does not make one more reasonable, fair-minded, or prudent.

SethD2767 wrote:Unfortunately, political life does not afford us with the opportunity to cling to absolute principles (such as a principle opposed to torture). The highest principle in political life is prudence and even then there is a higher principle, a higher prudence, which can call itself into question. Imagine a person on a boat, who shifts his weight from left to right according to how the boat is affected by the waves. If he were to stand still--stand firm, if you prefer--he would be thrown off. It is a similar situation in the case of torture. No one advocates torture in all cases except the extreme; but, you won't even accept it then!


All very lovely and sententious, but it misses the point.

To my knowledge, no one in this thread has a political life, so we need not worry about political lives in this case. Nevertheless, the law not only affords us the opportunity to cling to absolute principles, but in this case even requires it (from Convention Against Torture):

"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."

Now, you might argue that the highest principle one can have is the prudence to discern which laws we should abide and which laws we should systematically violate with impunity. However, I submit that if an executive body wishes to actively disregard a treaty with the full force of law such as the Convention Against Torture, the legislative body must explicitly grant this power and formally bow out of our country's legal obligations. I'm sorry if my absolutism ties interrogators' wrists too tightly.

If you'd like, you can concede that torture is legally impermissible but, in extreme cases, morally permissible. I suggested earlier that torture might be morally justifiable in the hypothetical-and--to-public-knowledge-hitherto-still-relegated-to-24-episodes "ticking time bomb scenario." Let me be more specific. In this case, the torturers must ensure these conditions are met: A) they are certain beyond any doubt that their detainee participated in a conspiracy and possesses intimate knowledge of a plot C) the threat was known to be imminent--in other words, the torturers could not be merely fishing for information D) the chief target was a civilian population E) torturing the detainee is a last resort to prevent the plot from unfolding (after all, it's demonstrated unreliability should render it an act of desperation)

I haven't heard or seen anything that would leave me to believe this has ever happened.

SethD2767 wrote:To fight a war like gentlemen, I'm afraid, is a luxury that we cannot always afford. In order to save the world from the specter of National Socialism, for instance, we had to in some sense fight like the Nazis. Had we lost, many of our own generals would have likely been tried for crimes against humanity.


--Except that abstaining from torture is, by all perceivable accounts, a luxury that we can afford. Since extreme cases such as the one outlined above have never occurred, we have not met the threshold in which torture would be morally permissible. In any case, torture is still plainly illegal, and those suspected in developing and implementing a regime of torture should be investigated and, if found guilty of offense, prosecuted to the fullest extent of the law. Which gets back to the original question and my original answer. John Yoo's conduct should be investigated. If his memos demonstrated professional incompetence, he should be sanctioned accordingly. If he did not draft those memos in good faith, he should be held accountable.

John Yoo should probably still be allowed to teach.


So, you basically agree that there are certain extreme cases, in which torture is justified. Of course, one doesn't have to cling too closely to the hypo I suggested. The bombing of Pearl Harbor might be another less dramatic but no less extreme case to consider.

I didn't quite understand the bit about none of us in this thread having a political life or how this related to my argument. Perhaps you could elaborate on this.

Also, as far as prudence being the highest virtue, well, I was just trying to get a rise out of people. Obviously, if one grants to rulers the right to disregard whichever laws they feel it prudent at the moment to disregard, one winds up with state of affairs that looks an awfull lot like tyranny (in which rulers rule according to their whims).

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Wed Apr 29, 2009 10:59 pm

SethD2767 wrote:I didn't quite understand the bit about none of us in this thread having a political life or how this related to my argument. Perhaps you could elaborate on this.

I actually didn't know how your original statement regarding a political life related to the argument in general. Could you elaborate on it?

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Wed Apr 29, 2009 11:05 pm

SethD2767 wrote:So, you basically agree that there are certain extreme cases, in which torture is justified. Of course, one doesn't have to cling too closely to the hypo I suggested. The bombing of Pearl Harbor might be another less dramatic but no less extreme case to consider.


I think Pearl Harbor is a much less extreme case if you're raising the possibility of torturing a uniformed Japanese officer with knowledge of an imminent attack on a Navy port. Are you suggesting all nations be allowed to torture prisoners of war who have knowledge of forthcoming military campaigns?

Tacitus
Posts: 37
Joined: Sat Jan 03, 2009 5:14 pm

Re: Should Berkeley Fire John Yoo???

Postby Tacitus » Fri May 01, 2009 2:13 pm

badlydrawn wrote:
If you'd like, you can concede that torture is legally impermissible but, in extreme cases, morally permissible. I suggested earlier that torture might be morally justifiable in the hypothetical-and--to-public-knowledge-hitherto-still-relegated-to-24-episodes "ticking time bomb scenario." Let me be more specific. In this case, the torturers must ensure these conditions are met: A) they are certain beyond any doubt that their detainee participated in a conspiracy and possesses intimate knowledge of a plot C) the threat was known to be imminent--in other words, the torturers could not be merely fishing for information D) the chief target was a civilian population E) torturing the detainee is a last resort to prevent the plot from unfolding (after all, it's demonstrated unreliability should render it an act of desperation)

I haven't heard or seen anything that would leave me to believe this has ever happened.




--LinkRemoved--

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Fri May 01, 2009 11:29 pm

Tacitus wrote:
badlydrawn wrote:
If you'd like, you can concede that torture is legally impermissible but, in extreme cases, morally permissible. I suggested earlier that torture might be morally justifiable in the hypothetical-and--to-public-knowledge-hitherto-still-relegated-to-24-episodes "ticking time bomb scenario." Let me be more specific. In this case, the torturers must ensure these conditions are met: A) they are certain beyond any doubt that their detainee participated in a conspiracy and possesses intimate knowledge of a plot C) the threat was known to be imminent--in other words, the torturers could not be merely fishing for information D) the chief target was a civilian population E) torturing the detainee is a last resort to prevent the plot from unfolding (after all, it's demonstrated unreliability should render it an act of desperation)

I haven't heard or seen anything that would leave me to believe this has ever happened.




--LinkRemoved--


It's not entirely clear that the cases meet conditions C and E. Ali Soufan, one of Zubaydah's interrogators, wrote an op-ed in the NYT a day after the the DOJ released these memos and argued that traditional interrogations were effective. These interrogations spanned months before the CIA began the harsh interrogation methods with the OLC's imprimatur. There might be a stronger case for KSM.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Fri May 01, 2009 11:45 pm

badlydrawn wrote:
SethD2767 wrote:I didn't quite understand the bit about none of us in this thread having a political life or how this related to my argument. Perhaps you could elaborate on this.

I actually didn't know how your original statement regarding a political life related to the argument in general. Could you elaborate on it?


You're familiar with logic, and I assume and know what a universe of discourse is. Well, I was basically saying that x was true (i.e. It is rare that we can always cling to absolute principles such as "torture should not be permitted") when the universe of discourse is political life.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Fri May 01, 2009 11:50 pm

badlydrawn wrote:
SethD2767 wrote:So, you basically agree that there are certain extreme cases, in which torture is justified. Of course, one doesn't have to cling too closely to the hypo I suggested. The bombing of Pearl Harbor might be another less dramatic but no less extreme case to consider.


I think Pearl Harbor is a much less extreme case if you're raising the possibility of torturing a uniformed Japanese officer with knowledge of an imminent attack on a Navy port. Are you suggesting all nations be allowed to torture prisoners of war who have knowledge of forthcoming military campaigns?


It depends on the extremity of the attack and the probability that torture would lead to the acquisition of knowlege sufficient (either by itself or when combined with other info) to duly prevent the attack.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Sat May 02, 2009 12:12 am

Ok, this discussion is just too interesting to leave undeveloped.

Let's suppose that there are situations, in which the state is morally justified in torturing a person; however, the torturing Yoo recommended as legally permissable did not in fact satisfy this criteria. From this, one may note several points: (a) what Yoo recommended as legal may have been legal but was certainly not moral; (b) even supposing what he recommended as being legal was in fact illegal, does this render his act of recommending it illegal?; (c) likewise, does the immorality of what he recommended render his recommending it immoral?; (d) supposing an answer of "yes" to b or c, should he be fired because of this? If so, why?

User avatar
mallard
Posts: 1092
Joined: Thu Aug 07, 2008 5:45 am

Re: Should Berkeley Fire John Yoo???

Postby mallard » Sat May 02, 2009 12:15 am

Seth, you remain incoherent.

aer
Posts: 92
Joined: Mon Feb 23, 2009 5:04 pm

Re: Should Berkeley Fire John Yoo???

Postby aer » Sat May 02, 2009 12:28 am

SethD2767 wrote:Ok, this discussion is just too interesting to leave undeveloped.

Let's suppose that there are situations, in which the state is morally justified in torturing a person; however, the torturing Yoo recommended as legally permissable did not in fact satisfy this criteria. From this, one may note several points: (a) what Yoo recommended as legal may have been legal but was certainly not moral; (b) even supposing what he recommended as being legal was in fact illegal, does this render his act of recommending it illegal?; (c) likewise, does the immorality of what he recommended render his recommending it immoral?; (d) supposing an answer of "yes" to b or c, should he be fired because of this? If so, why?


A. possible, but I don't have the background to really say.
B. same as above.
C. Yes it does.
D. If B is yes then he should be fired. Earlier in this thread there was a link to Berkeley's limitations on firing tenured professors and being convicted of a crime allows for firing. If the way that a person offers legal advice is illegal they should not be allowed to teach their methods to others. Would you want Mark Foley teaching incoming Representatives the proper way to interact with pages?
If C. is yes, but he did not commit an actual crime he should not be fired. The advantage of tenure is that it protects you from being fired except for under set circumstances and those have not been met. As much as I think that Yoo fails at being a decent human, I believe that the advantages of having a solid system to protect academic freedom outweighs the fact that he does not deserve to be teaching at Berkeley.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Sat May 02, 2009 12:39 am

mallard wrote:Seth, you remain incoherent.


If something I've said above doesn't make sense, feel free to ask me to clarify. There's no need to be rude. I thought we were having a friendly discussion here.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo????

Postby SethD2767 » Sat May 02, 2009 1:12 am

aer wrote:
SethD2767 wrote:Ok, this discussion is just too interesting to leave undeveloped.

Let's suppose that there are situations, in which the state is morally justified in torturing a person; however, the torturing Yoo recommended as legally permissable did not in fact satisfy this criteria. From this, one may note several points: (a) what Yoo recommended as legal may have been legal but was certainly not moral; (b) even supposing what he recommended as being legal was in fact illegal, does this render his act of recommending it illegal?; (c) likewise, does the immorality of what he recommended render his recommending it immoral?; (d) supposing an answer of "yes" to b or c, should he be fired because of this? If so, why?


A. possible, but I don't have the background to really say.
B. same as above.
C. Yes it does.
D. If B is yes then he should be fired. Earlier in this thread there was a link to Berkeley's limitations on firing tenured professors and being convicted of a crime allows for firing. If the way that a person offers legal advice is illegal they should not be allowed to teach their methods to others. Would you want Mark Foley teaching incoming Representatives the proper way to interact with pages?
If C. is yes, but he did not commit an actual crime he should not be fired. The advantage of tenure is that it protects you from being fired except for under set circumstances and those have not been met. As much as I think that Yoo fails at being a decent human, I believe that the advantages of having a solid system to protect academic freedom outweighs the fact that he does not deserve to be teaching at Berkeley.


I'm about to go to bed here, but i'll try to respond to your post.

As regards your answer of yes to c, I am not entirely convinced. If I am asked to give my opinion on whether it was legal in Ancient Rome for fathers to murder their daughters, I might well give an affirmative response: it was legal. Have I done anything immoral in this case? How is Yoo's situation different?

Also, as regards your answer to d, there are two points to respond to. First, the question is not whether according to berkley's rules, which govern employment practices, he should be fired, but, rather, whether according to dictates of morality he should be fired. In order to establish that he should be fired because the rules of Berkley require it, one would need a justification establishing that those rules are just. On the second heading, it is not clear to me that the fact that he wrote legal opinions which are incorrect necessarily means he is unqualified to teach. I think one can write legal opinions which are incorrect in their conclusion but, nevertheless, well-reasoned.

aer
Posts: 92
Joined: Mon Feb 23, 2009 5:04 pm

Re: Should Berkeley Fire John Yoo???

Postby aer » Sat May 02, 2009 1:26 am

SethD2767 wrote:
aer wrote:
SethD2767 wrote:Ok, this discussion is just too interesting to leave undeveloped.

Let's suppose that there are situations, in which the state is morally justified in torturing a person; however, the torturing Yoo recommended as legally permissable did not in fact satisfy this criteria. From this, one may note several points: (a) what Yoo recommended as legal may have been legal but was certainly not moral; (b) even supposing what he recommended as being legal was in fact illegal, does this render his act of recommending it illegal?; (c) likewise, does the immorality of what he recommended render his recommending it immoral?; (d) supposing an answer of "yes" to b or c, should he be fired because of this? If so, why?


A. possible, but I don't have the background to really say.
B. same as above.
C. Yes it does.
D. If B is yes then he should be fired. Earlier in this thread there was a link to Berkeley's limitations on firing tenured professors and being convicted of a crime allows for firing. If the way that a person offers legal advice is illegal they should not be allowed to teach their methods to others. Would you want Mark Foley teaching incoming Representatives the proper way to interact with pages?
If C. is yes, but he did not commit an actual crime he should not be fired. The advantage of tenure is that it protects you from being fired except for under set circumstances and those have not been met. As much as I think that Yoo fails at being a decent human, I believe that the advantages of having a solid system to protect academic freedom outweighs the fact that he does not deserve to be teaching at Berkeley.


I'm about to go to bed here, but i'll try to respond to your post.

As regards your answer of yes to c, I am not entirely convinced. If I am asked to give my opinion on whether it was legal in Ancient Rome for fathers to murder their daughters, I might well give an affirmative response: it was legal. Have I done anything immoral in this case? How is Yoo's situation different?

Also, as regards your answer to d, there are two points to respond to. First, the question is not whether according to berkley's rules, which govern employment practices, he should be fired, but, rather, whether according to dictates of morality he should be fired. In order to establish that he should be fired because the rules of Berkley require it, one would need a justification establishing that those rules are just. On the second heading, it is not clear to me that the fact that he wrote legal opinions which are incorrect necessarily means he is unqualified to teach. I think one can write legal opinions which are incorrect in their conclusion but, nevertheless, well-reasoned.



The original question was about recommending an immoral act, not stating that it was technically legal. Those are two very different situations. There is also a difference between stating that something was permissible in the past and giving someone justification for doing something in the future.

I do think that his actions were immoral to the point that he should be fired. I also think that protecting Berkeley's tenure policy outweighs his immorality.

SethD2767
Posts: 41
Joined: Thu Dec 11, 2008 4:20 pm

Re: Should Berkeley Fire John Yoo???

Postby SethD2767 » Sat May 02, 2009 1:36 am

aer wrote:
SethD2767 wrote:
aer wrote:
SethD2767 wrote:Ok, this discussion is just too interesting to leave undeveloped.

Let's suppose that there are situations, in which the state is morally justified in torturing a person; however, the torturing Yoo recommended as legally permissable did not in fact satisfy this criteria. From this, one may note several points: (a) what Yoo recommended as legal may have been legal but was certainly not moral; (b) even supposing what he recommended as being legal was in fact illegal, does this render his act of recommending it illegal?; (c) likewise, does the immorality of what he recommended render his recommending it immoral?; (d) supposing an answer of "yes" to b or c, should he be fired because of this? If so, why?


A. possible, but I don't have the background to really say.
B. same as above.
C. Yes it does.
D. If B is yes then he should be fired. Earlier in this thread there was a link to Berkeley's limitations on firing tenured professors and being convicted of a crime allows for firing. If the way that a person offers legal advice is illegal they should not be allowed to teach their methods to others. Would you want Mark Foley teaching incoming Representatives the proper way to interact with pages?
If C. is yes, but he did not commit an actual crime he should not be fired. The advantage of tenure is that it protects you from being fired except for under set circumstances and those have not been met. As much as I think that Yoo fails at being a decent human, I believe that the advantages of having a solid system to protect academic freedom outweighs the fact that he does not deserve to be teaching at Berkeley.


I'm about to go to bed here, but i'll try to respond to your post.

As regards your answer of yes to c, I am not entirely convinced. If I am asked to give my opinion on whether it was legal in Ancient Rome for fathers to murder their daughters, I might well give an affirmative response: it was legal. Have I done anything immoral in this case? How is Yoo's situation different?

Also, as regards your answer to d, there are two points to respond to. First, the question is not whether according to berkley's rules, which govern employment practices, he should be fired, but, rather, whether according to dictates of morality he should be fired. In order to establish that he should be fired because the rules of Berkley require it, one would need a justification establishing that those rules are just. On the second heading, it is not clear to me that the fact that he wrote legal opinions which are incorrect necessarily means he is unqualified to teach. I think one can write legal opinions which are incorrect in their conclusion but, nevertheless, well-reasoned.



The original question was about recommending an immoral act, not stating that it was technically legal. Those are two very different situations. There is also a difference between stating that something was permissible in the past and giving someone justification for doing something in the future.

I do think that his actions were immoral to the point that he should be fired. I also think that protecting Berkeley's tenure policy outweighs his immorality.


Sorry for my (potentialy misleading) questions. I assumed everyone was familiar with Yoo's case. As far as I'm aware he gave an opinion on an act's legality, not it's morality. So this is what I meant when I spoke earlier about "recommending" certain acts. Forgive me for speaking loosely.

Your response to my second point seems good. I think you're right.

User avatar
badlydrawn
Posts: 145
Joined: Sun Oct 05, 2008 12:11 am

Re: Should Berkeley Fire John Yoo???

Postby badlydrawn » Sat May 02, 2009 1:50 am

SethD2767 wrote:
badlydrawn wrote:
SethD2767 wrote:So, you basically agree that there are certain extreme cases, in which torture is justified. Of course, one doesn't have to cling too closely to the hypo I suggested. The bombing of Pearl Harbor might be another less dramatic but no less extreme case to consider.


I think Pearl Harbor is a much less extreme case if you're raising the possibility of torturing a uniformed Japanese officer with knowledge of an imminent attack on a Navy port. Are you suggesting all nations be allowed to torture prisoners of war who have knowledge of forthcoming military campaigns?


It depends on the extremity of the attack and the probability that torture would lead to the acquisition of knowlege sufficient (either by itself or when combined with other info) to duly prevent the attack.


We know the extremity of the attack. It's Pearl Harbor. Assume torture would lead to the sufficient acquisition of knowledge to prevent it.

In reality, there are simply too contingencies, and the negative externalities become unquantifiable. This renders a purely myopic utilitarian calculus useless. Does character consequentialism, the effects of which are not immediately apparent, ever enter your equation? Mark Drumbl opines on Prawfsblawg: "I have long thought that the ban on torture protected not only the tortured, but also the torturer. The humanity of the tortured and the torturer become intertwined." I think there's something to that.

We should recognize that (in the Pearl Harbor scenario) a captured uniformed Japanese officer otherwise abiding by the laws of war should be guaranteed a high degree of mental and physical integrity. If you submit that Pearl Harbor constituted a violation of the laws of war, should the officer's personal knowledge of this violation matter? If he's resistant, should we torture his children to glean information from him? His wife? Where do you draw the line? What about the available evidence of the attack that the U.S. failed to process?

When we view all problems within a utilitarian framework that only weighs the imminent harm with no regard to consequences of character and deontological principles, the rights of the majority continually trump those of the minority. It requires no vivid imagination to see such moral reasoning leading to societal cannibalism and mass contempt for self-determination.


P.S. It's debatable whether the firebombing of Dresden was necessary or anything remotely virtuous.

duckfan00
Posts: 13
Joined: Sun Nov 30, 2008 9:57 am

Re: Should Berkeley Fire John Yoo???

Postby duckfan00 » Sat May 09, 2009 10:42 pm

"Office of Professional Responsibility concluded that Yoo breached his professional legal ethics by skewing his legal advisory oprinion to provide a legal rationale for allowing the harsh interrogation techniques including waterboarding...."

User avatar
prezidentv8
Posts: 2821
Joined: Mon Dec 29, 2008 5:33 am

Re: Should Berkeley Fire John Yoo???

Postby prezidentv8 » Tue Jan 12, 2010 12:16 am

WHOA - John Yoo is on the Daily Show?!?!?!?!

Pearalegal
Posts: 1433
Joined: Fri Jan 30, 2009 10:50 am

Re: Should Berkeley Fire John Yoo???

Postby Pearalegal » Tue Jan 12, 2010 12:23 am

Do not bring this back.




Return to “Ask a Law Student / Graduate”

Who is online

Users browsing this forum: No registered users and 5 guests