John Yoo and Tenure

I am not a first amendment lawyer nor am I well-qualified to write about academic freedom, but I have been intrigued by the discussion of whether John Yoo can or should be fired in connection with his authorship of the infamous torture memo.

The National Lawyer’s Guild, which opposed efforts to fire Ward Churchill at the University of Colorado, has called for Yoo to be fired. Obviously, the two situations are not identical. Churchill’s views were “merely” unpopular and the investigation into his background would never have taken place but for the outrageousness of his speech. By contrast, Yoo’s speech has led to tangible results, results that the NLG claims constitute war crimes.

Brian Leiter, who was a defender of Churchill’s right to speak his mind has come to Yoo’s defense while making his distaste for Yoo’s views clear. I think that I fall into the same camp. As a Boalt alum I am embarrassed to have my alma mater associated with Professor Yoo’s legal advice to the Bush administration. Yet I am proud of Dean Christopher Edley for coming to his colleague’s defense:

“My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley,” Edley wrote. “If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless,” he added.”

[Cross-Posted on MoneyLaw]

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13 Responses

  1. WL says:

    I agree with Edley.

    There is a difference between a lawyer giving flawed advice and a client using legal advice (flawed or not) in furtherance of unlawful acts. (And yes, I do think the Gitmo treatment amounts to unlawful torture.) How many times has the defense of “but my lawyer said it’s OK!” failed to hold up in court, and yet the lawyer is not punished? Even Vinson & Elkins, which advised Enron, got off pretty much scot free. My understanding is that recent cases where lawyers have gotten into trouble with their clients involved lawyers actually engaging in misconduct themselves, not merely giving advice.

    The NLG press release mentions that Yoo should be disbarred. I think that avenue will be more likely to yield the NLG results than calls for Yoo’s termination or prosecution. Doesn’t the NLG have California or DC members with standing to file a complaint with the bar?

  2. Larry Sheldon says:

    Truth is I have not read all of the memos all of the way through.

    But Of that that I have read, it seems to me that he was not answering the question “Is this right or wrong?”

    It seems to me that he was answering the request “List all of the laws, treaties and so on that speak to the legality of this practice (or these practices).”

  3. Mark McKenna says:

    I’m inclined to think Edley did the right thing here, but is it so clear this is an academic freedom issue? Unless I’m mistaken, the calls for Yoo’s firing are based on Yoo’s arguments in a legal memo offering advice to his client. By contrast to the Ward Churchill controversy, Yoo wasn’t an academic when he wrote the memo. Would it have been a violation of academic freedom for schools to have refused to hire him on the basis of the memo, had it been public at the time he was hired? If not, it seems strange to argue that it would violate academic freedom to dismiss him when the memo became public later.

    Even if this is an issue of academic freedom, surely there is some point at which schools should be able to fire someone because of the advice given to clients. If the memo clearly told the President to violate the law, that would be unethical and could be the basis for firing, no? I’m not suggesting Yoo’s brief crossed this line – I’m deeply offended by it, but I don’t know the area well enough to determine whether it had a plausible legal basis. But if it was clear that the memo crossed the line, that would give a basis for firing, wouldn’t it?

  4. Austin says:

    As a law student, I think focusing the debate over whether a tenured professor should be fired over something of this magnitude is important. However, I think there’s a second layer to the inquiry: assuming that Yoo is not fired, which I would argue is the likely result, what does Boalt do with him? Should he be teaching Constitutional Law to 1Ls?

    I think an important step would be to relegate him to upper level courses so students are able to avoid him. I would feel my education was tainted if Yoo taught me about the structure of the Constitution — Dames & Moore should be taught with skepticism.

  5. John C says:

    Yoo committed war crimes – he concoted a legal “justification” for torture that was already being imposed on human beings in American custody. How can academic freedom (which I believe in and would support with every ounce of my energy, because I think it is a derivation and sister-right of the First Amendment) be construed to protect the employment of a war criminal in the very field he consciously abused to commit his crimes?

  6. Patrick S. O'Donnell says:

    I think the argument that John Yoo, at least at this juncture, should not be fired, is persuasive, for reasons provided by Leiter, Dean Edley, et al. To the degree that Yoo’s colleagues find his legal scholarship wanting, they can rely on informal professional sanctions and shaming mechanisms not unlike those often used in the enforcement of social norms generally. However, and not unrelated to this, I think the more pressing question, and one that appears to have been broached by the National Lawyer’s Guild, is the extent to which the “infamous torture memo” reflects legal (in)competency as such, *given his position assisting the Attorney General in the Office of Legal Counsel.* So it has nothing whatsoever to do in the first instance with First Amendment issues nor Yoo’s scholarship, including his specific legal and political theories.

    I happen to think that the torture memo *does* reveal legal incompetence and that it is thus important to concentrate on this question. For further analysis, please see (in addition to the wonderful stuff over at Balkinization by Lederman, Levinson, Balkin, et al) the post (and comments) on this at the Legal Ethics Forum by Brad Wendel:

  7. Patrick S. O'Donnell says:

    Erratum: National Lawyers Guild

    So, set aside the argument for dismissal from Boalt Hall and postpone the argument for complicity in war crime, and address the question of professional legal competency along the lines suggested by the NLG:

    ‘According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

    The federal maiming statute, for example, makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.

    Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result; Yoo’s definition contravenes the definition in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution’s Supremacy Clause. Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances, even in wartime. This memo and another Yoo wrote with Jay Bybee in August 2002 provided the basis for the Administration’s torture of prisoners.’ See

    Cf. too Benjamin Davis’s discussion at Jurist:

  8. Mike Zimmer says:

    I agree with the comment of John C. The first level question is whether those who drafted, signed and implemented the torture memos committed or aided and abetted the commiting of war crimes. If convicted, either in US or other countries’ courts, then tenure should be removed as a matter of course.

    The next level question is whether, in lieu of criminatl prosecution, some other venue can litigate those issues and, if the conclusion is that war crimes were committed, tenure should be removed. Obviously, one venue for federal judges would be the Senate in an impeachment trial. Maybe less obvious would be a university procedure addressing the continued tenure of a faculty member.

    Whether or not the limits of academic freedom and the independence of the judiciary might limit sanctions for actions short of the commission of crimes, certainly the commission of war crimes would justify removing tenre.

  9. Howard Wasserman says:

    To Simon:

    I disagree. I knew that many of my law professors came into the classroom with strongly held views about the doctrine they were teaching, some of which were not widely accepted and some of which may be as radical as Yoo’s views are about executive power. I welcomed hearing their full views as part of my learning process. Relatedly, the most effective teachers do not cram those views down students’ throats or cut-off those who disagree with them–and I have no reason to believe that Prof. Yoo is any different in his teaching style.

    To Mark:

    I believe academic freedom and, more specifically, the protections of tenure extend to non-academic work, whether it be commenting as a “public intellectual” or working directly on public policy in government. But you raise a good point about timing: If it would not violate academic freedom to decline to hire him or to deny him tenure because of the memo, why is it wrong to fire him post-tenure? At the risk of being too formalist, I wonder if tenure is just different, that once you cross that threshold, the standard for what can get you fired gets ratcheted up–perhaps including the idea that even shoddily written/reasoned stuff is not enough.

  10. Mark McKenna says:

    Howard –

    I accept that academic freedom extends to things that may not classicly be regarded as scholarship, though I wonder if it extends to positions taken representing a client during periods in which one is engaged full-time in the practice of law.

    But even if this is clearly a matter of academic freedom, and even if the standard should be ratcheted up post-tenure (which, having just received tenure, I readily embrace), saying the standard is ratcheted up is not the same thing as saying there is no longer any standard. There must be some point at which it would be legitimate for a school to dismiss even a tenured faculty member based on his or her advice. Again, I don’t know that this case clearly exceeded the standard, but I think we should acknowledge that, in saying Edley did the right thing, we’re implicitly saying Yoo’s memorandum wasn’t so obviously bad that it crossed the line.

  11. Patrick S. O'Donnell says:

    In reading afresh Stanley Karnow’s Vietnam: A History (2nd ed., 1991) I came across this nugget, which bears comparison to John Yoo’s legal work for the Bush administration, although in this instance, the constitutional blessing was after the fact:

    “…[I]t was doubtful if Nixon had the authority to broaden the war [into Laos and Cambodia] without congressional endorsement–just as it was doubtful that he had the power to begin, in secrecy, the bombing of Cambodia the year before [1969]. Almost as an afterthought, he assigned the task of preparing a legal justification to William Rehnquist, an assistant attorney general, who came up with the argument that the law mandated presidents to deploy troops ‘in conflict with foreign powers at their own initiative.'”

    It’s clear that Rehnquist’s career did not suffer from providing obsequious legal dissimulation on behalf of conspicuous war crimes. Seen in this dark light, and whatever the odious ethical and legal nature of Yoo’s infamous Torture Memo, it pales into comparison to crafting legal sanction for the bombing and invasion of Cambodia. (cf. Richard Falk’s work on the Vietnam War and international law)

  12. Patrick S. O'Donnell says:

    Doing a bit of research I discovered that Bruce Shapiro wrote something about the remarkable historical connection between Rehnquist’s white paper, “The President and the War Power,” in his capacity as head of the Office of Legal Counsel and Assistant Attorney General Jay Bybee’s Torture Memo:

    ‘What do Nixon and Cambodia have to do with the beatings and rapes at Abu Ghraib? Ask Bybee, because it is his memo that makes the comparison with Cambodia and Rehnquist, a comparison that lays open the deeper motivations, goals and implications of the Bush Administration’s interrogation policy.

    The Bybee memo attempts to erect a legal scaffolding for physical and psychological coercion of prisoners in the War on Terror. Coming from the Office of Legal Counsel, it holds the authority of a policy directive. The memo proposes so finessed and technical a reading of antibrutality laws that all manner of “cruel, inhuman or degrading” interrogation techniques–including beatings and sexual violations like those in Abu Ghraib–simply get reclassified as Not Torture. The memo’s language so offends common sensibility that within a few days of its release, White House officials were disavowing its conclusions and selectively declassifying documents allegedly showing the President’s commitment to humane treatment of prisoners.

    Yet even while putting up a smokescreen of concern for humanitarian treatment of prisoners, the Administration made no attempt to distance itself from Bybee’s most crucial theme: unreviewable presidential war powers. Anti-torture laws, the memo argues, simply do not apply to “detentions and interrogations of enemy combatants pursuant to [Bush’s] Commander-in-Chief authority.” All the documents released by the White House reflect this same obsession with presidential war powers-and in many cases, incorporate Bybee’s precise language.

    It is in defense of his view of the Commander in Chief’s legal impunity that Bybee invokes the Cambodia precedent, citing Rehnquist’s 1970 white paper as his principal authority. Rehnquist spelled out his arguments both in that memo and in an article later that year for the New York University Law Review.

    One glance at the Rehnquist documents and it is easy to see why his 1970 reasoning resonates throughout the Bush Administration’s 2002 and 2003 memorandums. Just as Bybee finds that torture isn’t torture, Rehnquist argued that the invasion of Cambodia wasn’t really an invasion: “By crossing the Cambodian border to attack sanctuaries used by the the enemy, the United States has in no sense gone to war with Cambodia.” The Bybee memo offers officials accused of torture the “necessity” defense; in 1970, Rehnquist argued that pursuing Vietcong troops into previously neutral territory was “necessary to assure [American troops’] safety in the field.”

    In particular, Rehnquist offered the Nixon White House a bold vision of the Commander in Chief’s authority at its most expansive and unreviewable: The President’s war power, he wrote acerbically, must amount to “something greater than a seat of honor in the reviewing stand.” Cambodia–where the devastation of the war and the Nixon Administration’s carpet-bombing following the invasion would prepare the way for the Khmer Rouge holocaust–amounted to “the sort of tactical decision traditionally confided to the commander in chief.”

    For Rehnquist, the invasion of Cambodia in May of 1970 was a dual watershed. On the one hand, it marked the greatest assertion of expansive presidential warmaking power, crystallized in the white paper cited by Bybee. At the same time, protests against the Cambodian invasion led Nixon to centralize the gathering of domestic political intelligence directly in the White House; Rehnquist supported this domestic expansion of executive-branch authority, arguing in court for no-knock entry, preventive detention, wiretaps and other ancestors of today’s Patriot Act.

    The authority of Nixon and his successors was soon curtailed–at least on paper–by reform-minded legislation: the War Powers Act, the Freedom of Information Act, CIA reform, the War Crimes Act and a host of other statutes. And ever since the invasion of Cambodia, a parade of conservative policy-makers–among them Rehnquist, Rumsfeld and Vice President Dick Cheney–have repeatedly sought to regain the expansive presidential power asserted in Rehnquist’s memo.

    This is what is really at stake in the torture scandal. The circle of history has come around: The Bush Administration’s theory of unconstrained war powers connects straight back to its Nixonian origins.

    [….] The Bush Administration’s memos not only facilitate torture as public policy. Like the Nixon Administration in 1970, they articulate a philosophy of the presidency best described as authoritarian. That is the hidden message of Abu Ghraib.’

    Please see

  13. “My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley,” Edley wrote.”

    Didn’t a lot of “legal academics” also share in the reasoning that got smacked down so easily by SCOTUS in the FAIR v. Rumsfeld case? If poor legal reasoning (and I don’t think Mr. Yoo is guilty of that) becomes a cause for dismissal, there could be a lot of empty faculty lounges…