Why John Yoo Must Stay

Edley, as Columbia Law School professor Scott Horton wrote, "is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. . . . Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis?"

Yet the message sent to students by dumping Yoo would be even worse: that some opinions are too dangerous to express. Lawyers are used to staking a foothold on slippery slopes, but this one, with academic freedom at issue, is too treacherous to risk.

The most useful analogy I've read on this subject comes from Princeton professor Deborah Pearlstein, who asked what Berkeley would do if a molecular biology professor "had written a medical opinion while in government employ disclaiming the truth of evolution," and continued to dispute the theory of evolution once he resumed teaching.

Pearlstein, a human rights lawyer, found Yoo's memo "blatantly, embarrassingly wrong under the law," but she conceded that legal conclusions lack the hard certainty of scientific truth. Yoo should no more be removed from a teaching job than a Supreme Court justice who writes a despicable opinion -- upholding slavery, allowing separate but equal facilities, permitting the internment of Japanese Americans during World War II -- should be impeached.

Keeping John Yoo at Berkeley is the high price of liberty.

marcusr@washpost.com