The Torture Memos, Professor Yoo, and Academic Freedom
Christopher Edley, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean
UC Berkeley School of Law
While on leave of absence from Berkeley, serving as a Deputy Assistant Attorney General in the Bush Administration, Professor Yoo wrote and contributed to memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our nation’s efforts to combat terrorism. The controversial reasoning and conclusions in these documents have been widely criticized in the academic literature, the media and in protests stretching over the past two years or more. Locally, I have received thousands of communications criticizing Professor’s Yoo’s continuing presence at Berkeley Law. In recent weeks protestors have frequently gone to Professor Yoo’s home and posted signs in his neighborhood. Now, protestors have intentionally disrupted our classes and threatened to continue—not just assembling to voice their views, but attempting to prevent Professor Yoo from teaching, to the detriment of students who have chosen to enroll in his course. Other classrooms are also affected.
As dean I feel obliged to comment. Nonetheless, I speak only for myself in the following remarks, with no expectation that I will completely satisfy anyone.
Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.
It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.
Does what Professor Yoo wrote while away from the University somehow place him beyond the pale of academic freedom today, when he is back on campus? If this were some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that a still easier case.
Or consider the more contemporary possibility of a pro-choice professor, who wielded power while on leave serving in government, or gained notoriety leading weekend rallies. The professor is attacked at his college, a socially conservative place where the prevailing view is that abortion is murder and active defenders of a woman’s right to choose are complicit in infanticide. In Professor Yoo’s case, additional things are obviously in play. Gravely so, because some of the views he authored while a professor were merely controversial back then; while in government those same views became consequential.
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; this includes most though perhaps not all of his Berkeley Law colleagues. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.
There are important questions about the content of the Yoo memoranda—about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law that he finds bothersome or interfering. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn a challenging or even abhorrent idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, or a promising way to seek deeper understanding in a world of continual, strange revolutions.
There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda declared available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. The law does not criminalize every immoral act, however, and there is a strong argument that these more direct actors get a “pass” because they relied on the DOJ memoranda. (Even if Rumsfeld thought his actions were legal, that didn’t make his choices moral.) Lawyers, on the other hand, should not have blanket immunity for all their advice and actions, no matter what. But it does matter to me that Yoo was an adviser, while President Bush and his national security appointees were the deciders.
What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demanded greater, not reduced, vigilance for constitutional rights and safeguards.
What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach or even a war crime? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.
Assuming one believes, as I do, that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:
Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]
This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate. But I will put aside that shield and state my independent and personal view of the matter:
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 performance now? Did writing the memoranda, and any related acts, 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.
When the Attorney General releases the results of DOJ’s internal ethics investigation, I and many others will review it carefully and consider whether there are implications for this campus. In all candor, I doubt that there will be. Non-clinical faculty need not be a member of a bar, and Professor Yoo does not teach our courses on Professional Responsibility.
On the other hand, prosecution, followed by conviction and unsuccessful appeal, would be a very different matter. As a board member of the Obama Presidential Transition, I argued that fidelity to the Rule of Law requires investigation of possible criminality by officials in the previous administration, despite the political cost of being attacked for conducting a “witch hunt.” My belief then, and now, is that only in a court of law can we have definitive findings of fact and conclusions of law. We need both. My friend Eric Holder, Attorney General of the United States, should either pursue the matter, or tell us that he believes there was no criminality. We need to know what happened, and not just from journalists. We need to know where the boundaries of lawful conduct are in combating national security threats. We need to know when legal advice and advocacy become criminal.
University faculty and administrators are not competent to answer these questions. If we try to do so in the circumstances at hand, we imperil values at our very core.