Why John Yoo Must Stay

By Ruth Marcus
Wednesday, April 16, 2008

The March 14, 2003, memo "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" is an abhorrent document. Better known as John Yoo's torture memo, it is shoddy in its legal reasoning, outrageous in its far-reaching assertion of presidential power and repellent in its purpose -- to offer legal cover to U.S. personnel who commit torture.

Should this man be teaching constitutional law at one of the nation's top law schools? If he were being hired on the basis of that memo, certainly not. But he is already teaching at Berkeley's Boalt Hall, and he has tenure, which makes the matter far more complicated and argues, in the end, for keeping Yoo on the faculty.

Yoo's memo for the Justice Department's Office of Legal Counsel has long been repudiated by the administration for which he worked, which gives some hint of how extreme it is.

Now the declassification of the document has ignited a new round of demands for his dismissal, with online petitions deluging the e-mail inbox of Boalt Hall dean Christopher Edley. Yoo "twisted the law in order to sanction what is highly likely to be considered a war crime," lectured a group called the American Freedom Campaign.

Edley, a veteran of the Clinton and Carter White Houses, responded last week with a memo of his own, concluding that Yoo "offered bad ideas and even worse advice during his government service." Still, he found, this failing does not "warrant dismissal or even a potentially chilling inquiry."

Absent "very substantial evidence" of "clear professional misconduct" or criminal violations, Edley said, "no university worthy of distinction should even contemplate dismissing a faculty member."

Disputes over academic freedom tend by their very nature to involve unpleasant choices. No one wants to have on the faculty, say, a literature professor who marches with Nazis, but pushing her out for that reason invites McCarthyite purges.

The scientist who argues that blacks are genetically inferior to whites (William Shockley) or the "ethnic studies" professor who describes those killed in the World Trade Center as "little Eichmanns" (Ward Churchill) may be even more repugnant because their offensive statements are intertwined with their academic work.

For this reason, Yoo presents an especially hard case. The strongest argument against Edley's view is that it misapprehends the role of the lawyer, particularly the government lawyer, and minimizes the seriousness of Yoo's conduct as an enabler of torture .

Yoo's job was not to be Dick Cheney's hired gun, making every conceivable argument on his client's behalf, no matter how outlandish. It was to determine, objectively and independently, what the law allows.

Edley concedes that government lawyers "have a larger, higher client than their political supervisors." But he notes that Yoo was merely "an adviser" -- "President Bush and his national security appointees were the deciders."

True, but Yoo was critical to the enterprise. His successor, Jack Goldsmith, described how the torture memos (there was an earlier one, in December 2002) gave government interrogators the "golden shield" to insulate them from being sued and to proceed with horrifying techniques such as waterboarding.

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.


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