April 17, 2008
Should John Yoo Be Fired?
In the wake of the public disclosure a few weeks ago of a sweeping March 2003 Justice Department memo on interrogation methods, a fierce debate has raged across countless legal blogs about the memo's controversial author, John C. Yoo, who is now a professor at the law school at the University of California at Berkeley, and whether the document is grounds for his removal from the faculty there.
The Yoo memo is perhaps most noteworthy for its very narrow definition of what constitutes torture:
“The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result...”
Many have argued, including Jane Mayer of The New Yorker, that Yoo's March 2003 memo established the legal underpinning for the sort of abuses that were later revealed to have taken place at Abu Ghraib.
The disclosure of the Yoo memo has led to numerous calls for his dismissal from the law school at Berkeley. The New York Times ran a scathing editorial in which they characterized Yoo's employment at Berkeley as inexplicable. (Yoo received tenure at Berkeley in 1999.)
On April 10, Christopher Edley Jr., dean of the law school, released a statement in which he affirmed that "because this is a public university, [Yoo] enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights."
Philip Carter, an attorney and former Army officer who edits Slate's Convictions blog, argues that Edley "gets it exactly wrong -- and epitomizes why people deride the 'Ivory Tower' as insulated from reality. ... Academic freedom should not be a dodge for personal or professional responsibility."
Brian Leiter, who thinks that "Bush and his gang of war criminals deserve to have their status confirmed by a court of law," nonetheless thinks efforts to oust Yoo from Berkeley are a "disgraceful attack on the academy and tenure."
Henry Farrell, a political scientist at George Washington University who blogs at Crooked Timber, argues that the dispute is not, in the end, an issue of academic freedom because "it doesn’t concern Yoo’s ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the US government to facilitate war crimes." The Yoo case, Farrell writes, is an instance "where traditional academic freedoms don’t and shouldn’t apply."
Brad DeLong, who teaches in the economics department at Berkeley, confessed he was torn about whether a committee should be convened to examine whether Yoo's appointment to the Berkeley faculty should be revoked for moral turpitude.
For more on Yoo's influential and expansive theory of executive power, check out this recent Michael Nelson essay from The Chronicle Review.
And then, from deep in the archives of The Harvard Crimson, there is this 1988 opinion piece by a young John Yoo announcing his support of Michael S. Dukakis for president because, among other reasons, a president Dukakis would execute a humble foreign policy that understands "that America can no longer dictate to the rest of the world."
Evan Goldstein | Posted on Thursday April 17, 2008 | PermalinkComments
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Fired? No. Jailed? Yes. At the least Yoo should be ashamed to show his face in public. But that would require a conscience.
— Tony B Apr 17, 10:42 AM #
If he is convicted of a crime he should be fired.
Of course, they could always Ward Churchill Mr. Yoo. There must be something on his record that would be considered inappropriate.
— me Apr 17, 11:24 AM #
ABSOLUTELY! He is a disgrace to the academic profession!
— Gerald W. Berkley-Coats Apr 17, 02:52 PM #
There are many different scenarios in which Mr. Woo is culpable. The larger question is whether his task was simply to justify a desired practice or whether the Bush coterie was really convinced by his argument that what Rumsfield wanted to do was appropriate. Also, what discipline has the expertise to define torture?
— Droste Apr 17, 02:55 PM #
Let us hope that the students at UC-Berkeley’s law school will vote with their feet and refuse to take Yoo’s courses. Yoo has declared the president to be essentially above the law (see the essay by Michael Nelson cited in the article). Were I a student there, I would not take a course from someone who either is that ignorant of the law or that stunningly arrogant.
— James Apr 17, 03:28 PM #
Forgive my dissenting voice on this matter, but isn’t the whole point of academia to produce a community in which opinions can be offered, argued and defended, and ultimately the larger guild of scholars can then decide for themselves? If the Bush administration wanted more opinions, they were certainly able to obtain them. If anything the excessive secrecy of the Bush administration caused a lack of debate on what constitutes torture and reduced the process to a private memo. Have we really come to a point in which a person’s perspective on an issue warrants wholesale rejection from their community, loss of job, and loss of social status? In response to #4: is it possible that his task was simply to articulate a definition of torture that reflects his most honest and educated opinion? I’m personally disgusted by the responses I see in the blog on this matter—and I’m disgusted exactly because I’m such a left-leaning liberal. Anybody who thinks that Mr. Yoo should be charged criminally or even lose his job is an intellectual fascist. Is this still America?
— John Apr 17, 04:42 PM #
Dean Edney’s statement is worth reading in full — it’s incredible: he sees no hint of professional misconduct in the Yoo memo. In Edney’s logic, a lawyer advising a client to break the law bears no responsibility when the client follows the advice. He confidently concludes that no committee need investigate the matter. By the way, what does it take to be investigated at a law school faculty? Dershowitz gets away with plagiarism, Yoo with legalizing torture…
— John R Apr 17, 05:40 PM #
I’m not a lawyer—nor did I stay in a Holiday Inn Express last night—but most of the responses above seem to assume that the definition of torture is clear in international law. It most definitely is not.
In 1976 Ireland brought a case against Britain before the European Court of Human Rights. The British were accused of—and admitted—(i) placing Republican suspects (detained without charge or trial) in painful “stress positions”; (ii) starving them of food and drink; (iii) not allowing them to sleep; (iv) subjecting them to deafening noise; and (v) tying a hood over their heads while (i) to (iv) inclusive was taking place. The British Government acknwledged that this was done for the purpose of extracting information from them under duress (though in fact many of the detainees, having nothing whatever to do with the IRA, were not in a position to provide it). The ECHR (5310/71) ruled two years later: “Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word ‘torture’ as [conventionally] understood.”
We might perhaps like to believe that Prof. Yoo’s position is an outlier. In reality, a lot of eminent legal minds think as he does, and they have precedent to back it up.
— Gustave Apr 18, 01:42 PM #
Professor Yoo should be disgraced, fired and jailed for his stupidity. There is no excuse.
— kvc Apr 19, 12:10 PM #
Calls for Dr Yoo’s dismissal are without justification. The doctrine of ‘moral turpitude’ does not apply. See my [London] online Guardian article [15 April] at: http://commentisfree.guardian.co.uk/geoffrey_alderman/2008/04/wrong_target.html
— Geoffrey Alderman Apr 21, 03:55 PM #
You’re an errand boy, sent by grocery clerks, to collect a bill. —-Col. Kurtz
— first marci Apr 23, 02:35 PM #