Thoughts on Dean Edley’s Email About John Yoo

by Kevin Jon Heller

I want to offer a few thoughts on Dean Edley’s email, which I appreciate Deb posting.  I am much less impressed by his reasoning than Deb appears to be.  (And please, Deb, correct me if I am wrong about that.)

At the outset, it is important to note that I think Dean Edley’s conclusion — that Yoo cannot be fired, at least at this point — is unassailable.  As he points out, University of California policy permits the termination of a tenured faculty member only for “[c]ommission 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.”  Yoo has not been convicted of anything, nor is it likely that he ever will be. Rightly or wrongly, that’s the end of the matter — even if it’s clear that the failure to prosecute Yoo reflects Obama’s willingness (perhaps even desire) to whitewash the crimes of his predecessors, not the legal merits of the case against Yoo and the other torture lawyers.

Had Dean Edley stopped there, I would not have felt the need to write this post.  But he also makes a number of statements in defense of Yoo that I think are extremely questionable — to put it mildly.

First, consider what he says about Yoo’s (evident) First Amendment and Due Process rights:

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.

This is an unobjectionable statement, insofar as it is addressed to the individuals who are disrupting Berkeley classes as a form of protest against Yoo.  The anti-Yoo protesters have every right to post signs in his neighborhood and make their feelings known on the Berkeley campus, but they have no right to disrupt classes.  Let’s not forget, though, that Yoo’s torture memos, not his scholarship, are what’s being debated.  Those memos were written in secret, considered in secret, executed in secret, and held in secret.  But for the tireless efforts of progressive civil-liberties groups, they would still be secret.  It was the Bush administration who spent years trying desperately to “avoid these arguments” — so I think the protesters can be forgiven, though certainly not excused, for the zeal with which they are prosecuting the debate now.  They were denied that right when it mattered.

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?… 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.

This is a completely inapposite comparison, given that a pro-choice professor who promoted pro-choice policies while in government would not be committing a criminal act.  Abortion is legal; torture isn’t.  Indeed, Dean Edley seems to recognize that his comparison makes no sense, because he immediately qualifies it by pointing out that, in Yoo’s case, “additional things are obviously at play.”  (A wonderful euphemism, given that at least one “additional thing” is that Yoo’s ideas led directly to torture and murder.)  Why, then, make the comparison at all?

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 very immoral act, however, and there is a strong argument that these more direct actors get a “pass” because they relied on the DOJ memoranda.

With respect to Dean Edley, this is simply perverse.  Yoo is less morally culpable than the individuals who ordered or committed torture because he only provided the legal rationalizations for their acts.  And the individuals who ordered or committed torture get a “pass” because they only relied on Yoo’s legal rationalizations.  Voila!  No one is responsible for the countless acts of torture committed by the Bush administration.

I also strongly disagree with Dean Edley’s claim that “no argument” about Yoo’s actions “makes his conduct morally equivalent to that of his nominal clients… or comparable to the conduct of interrogators.”  If we view Yoo as simply an aider-and-abetter of torture, that may be true — although accomplices are punished as principals, we normally (though certainly not always) view them as somewhat morally less culpable.  But it is far from clear whether that is an accurate description of Yoo’s participation in the torture regime.  It is equally plausible, and in my opinion more so, to view Yoo as a member of a conspiracy to commit torture (under US criminal law) or as a participant in a joint criminal enterprise to commit torture (under international criminal law).  Either way, he is no less culpable than the Bush adminstration officials and CIA interrogators: it is black-letter law that a member of a conspiracy or a JCE is responsible for all of the actions of his co-perpetrators in furtherance of the common plan.

In fact, in at least one respect, we can see Yoo as more morally culpable than his co-perpetrators.  It is almost certainly the case that at least some members of the Bush adminstration would have refused to order torture if Yoo had made absolutely clear that ordering torture was illegal, would likely result in prosecution, and could not be justified by necessity or self-defense.  It is also almost certainly the case that at least some CIA interrogators would have refused to torture if they had known that Yoo believed doing so was criminal.  But Yoo did not write that memo.  Instead, he wrote a series of memos assuring both the orderers and the torturers that their proposed actions were legal, that they would be unlikely to be prosecuted, and that even if they were prosecuted they could argue self-defence and necessity.  Yoo thus significantly increased the likelihood that torture would, in fact, be ordered and committed.  Does this not make him more morally culpable than the individuals who participated in the torture regime honestly — if completely unreasonably — believing that their actions were legal?

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.

Absolutely — but deciders decide on the basis of their advisers’ advice.  And again, had Yoo given better advice, the Bush administration may very well have decided differently, no matter how committed to using torture it may have been.

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.

This comment is simply baffling.  As discussed above, termination could not be justified even by a DOJ report accusing Yoo of wholesale ethical violations.  But does that mean that such a report would have no consequences for Yoo in the law school?  Not even in terms of discretionary decisions, like raises, research support, leave, and the like?  Because he doesn’t teach professional responsibility?  So it would be okay to discipline him if he did teach professional responsibility?  What’s the difference?  I thought all law professors had a professional obligation to encourage their students to act ethically.

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.

At last, a statement with which I completely agree.  Sadly, I imagine John Yoo will be an emeritus professor at Berkeley long before that happens.

http://opiniojuris.org/2009/08/20/thoughts-on-dean-edleys-email-about-john-yoo/

6 Responses

  1. Actually I think the abortion analogy is only baffling because you are just as certain that Yoo sanctioned/justified/facilitated illegal torture as you are that abortion could not be murder.

    But frankly I can easily imagine a ‘pro-choice’ government lawyer trying to faciliate eg late-term abortions (ie murder; ie a crime) without any significant later implications for his or her career, even though I and many others would consider their immediate actions appalling immoral and arguably ‘illegal’.

    But for the rest I agree with your points.

  2. Your hypothetical works much better than Dean Edley’s, at least with regard to those states that criminalize late-term abortion (which isn’t all of them).  But that just underscores my claim that Dean Edley’s argument, which is far less nuanced, is extremely unconvincing.

  3. Actually I think the abortion analogy is only baffling because you are just as certain that Yoo sanctioned/justified/facilitated illegal torture as you are that abortion could not be murder.

    No, I think it’s baffling because abortion is legal in the United States, and torture is a federal crime.

  4. Another point that’s completely missing from Edley’s handwringing missive: There is currently a very active lawsuit against Yoo for torture filed by Jose Padilla.  Should Yoo lose the suit, is Edley really going to hide behind the standard he alluded to — the termination is premissible only in caes of criminal conviction?  By that standard, any profesor who loses a suit for, say, sexual harassment can continue teaching as long as s/he is not criminally convicted for sexual assault.

  5. Regarding the abortion-torture comparison: if Edley’s analogy purported to establish that there’s <i>no</i> morally relevant difference between a college’s sanctioning a pro choice professor and its sanctioning an apologist for torture then you’d be right that it fails because abortion is legal and torture isn’t. But Edley spent several paragraphs before the abortion-torture comparison arguing for a strong presumption in favor of Yoo’s criminal innocence. Read in light of that, the abortion-torture comparison should be understood as purporting to establish that <i>assuming Yoo committed no criminal act</i> there’s no morally relevant difference between a college’s sanctioning a pro choice professor and one sanctioning a torture apologist (it shouldn’t do either).

    I suppose you could still reply that, because promoting abortion is moral whereas arguing that torture’s permissible isn’t, a morally relevant difference remains. But then you’d be flouting an intuitive academic norm: that colleges should not punish (or otherwise treat differently) a member of the faculty simply because he has an unorthodox (perverse, even) conception of the good or the right. (Of course, it may punish a member of the faculty if his conception of the good leads to ineffective research or teaching, but it’s still not punishing him for his conception of the good – it’s punishing him for being a lousy prof.)

  6. Yoo thus significantly increased the likelihood that torture would, in fact, be ordered and committed.  Does this not make him more morally culpable than the individuals who participated in the torture regime honestly — if completely unreasonably — believing that their actions were legal?


    Maybe I’m wrong, but this comment seems to me to confuse moral and legal culpability. In a situation where X is morally abhorrent but legal, and I write a memo saying that X is legal, and Person B, believing X is legal, engages in X, I am much less morally culpable than B, I think, whether or not I was wrong in saying that X was legal. I am morally culpable, but only to the extent I was negligent or wilful in reaching the wrong legal conclusion (or in not making some personal appeal to B that he not engage in X). I have no moral duty to say that X is illegal if I don’t in act believe it to be illegal, whether I think it’s moral or not, right?

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