No Comment — August 17, 2009, 10:34 am

Yoo Returns to Berkeley

Today, John Yoo returns to teach at Boalt Hall, the prestigious law school of the University of California at Berkeley. Alumni and students are marking the occasion with a protest. Their circular states:

As a direct result of Yoo’s legal memos thousands have been subjected to torture, tens of thousands incarcerated, tens of millions spied upon, and a million plus have died in U.S. imperialist wars. Without the provision of “legal cover,” many of these crimes would not have been possible.

But Boalt Hall Dean Chris Edley has risen once again to Yoo’s defense. In an email message to faculty sent on Saturday morning, Edley states that he intends to address the protesters and explain why he opposes any sort of action against Yoo:

I believe the University should not take any steps along the lines demanded by the protesters, because no law enforcement or even bar proceedings have been initiated, much less completed. Furthermore, UC faculty and administrators are not competent to act on their own to discover the facts at issue or make informed, formal judgments about the ultimate policy and legal claims.

In the overall order of things, it’s good that the dean of a professional school stands up for a faculty member under broad public attack for unpopular views. It’s right to insist on proper process and to oppose a rush to judgment, even though it’s ironic in this case, since Yoo’s offenses include some measure of just that. Academic freedom is important, particularly for a university, and a faculty member should not be expelled simply because of public agitation.

But Dean Edley’s remarks—brief as they are—reflect a refusal to grapple with some serious issues. Edley states that “no law enforcement or even bar proceedings have been initiated,” which is flatly false. In fact, Yoo is the subject of a pending criminal investigation in Spain’s Audiencia Nacional, where investigators are probing his role in a process that led to the torture of five Spanish subjects. In a preliminary ruling, the court found that culpability for these crimes lies principally with the “intellectual authors” of the torture program, and particularly the lawyers who gave permission for it. Does Dean Edley think the university should be oblivious to foreign legal proceedings or to crimes committed against foreigners? That’s what his formulation suggests. Moreover, Attorney General Eric Holder is now widely expected to appoint a special prosecutor to investigate torture. There is a reasonable prospect that the special prosecutor will look into Yoo’s dealings. The Pennsylvania Bar has received complaints about Yoo, but bar disciplinary measures involving Justice Department employees start in the Justice Department: in this case, with a report of the Department’s Office of Professional Responsibility, which has been five years in the making. That report has been finished since last October and has been held up largely by Yoo’s maneuvers, but it will in any event be issued shortly. Reports suggest that it excoriates Yoo, attacking his professional judgment and the competence of his legal work—and that it recommends that the matter be referred to bar associations for appropriate disciplinary action.

It is reasonable for the University of California to await the conclusion of these criminal investigations and professional reviews before reaching a decision on dismissal or other disciplinary measures. But is it appropriate for the University to abstain from judgment entirely, as Edley suggests? That would be an abdication of responsibility to the entire university community.

The question that the University faces is not just whether to dismiss John Yoo. Assume, as I do, that there is a process to run which will likely stretch over several years. The university has to address what to do with John Yoo in the interim. One question is whether it is appropriate for Yoo to be teaching international law, international humanitarian law, and constitutional law. Even John Yoo’s colleagues in the Bush Administration considered his scholarship to be unacceptable; his torture memoranda were repudiated by Jack Goldsmith and Stephen G. Bradbury, before the Obama Administration came to office. If the Justice Department formed the conclusion that Yoo’s work on constitutional and international law issues was shockingly substandard—indeed incompetent—why should he be teaching those exact subjects at Boalt Hall? Does Dean Edley also take the position that he and his colleagues on the faculty are not permitted even to exercise quality control? Protecting the integrity of the academy requires the recognition of more interests than John Yoo’s. The rights of students and the reputation of the university should count for something, too.

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