08 Dec Berkeley Tries to Censor Boalt
Later today the Berkeley City Council will entertain measures to censor Boalt Hall:
Berkeley’s City Council will delve into national policy again next week when it votes whether to demand the United States charge Berkeley resident and former Bush adviser John Yoo with war crimes…. The five measures attacking Yoo were drafted by the city’s Peace and Justice Commission, the same group that recommended that the city tell the Marines they were “unwelcome intruders.” The City Council will vote Monday on the five measures. In addition to demanding that Yoo be charged with war crimes, the city will decide whether to order Boalt to offer alternatives to Yoo’s courses, so no student is forced to take a class from him if they don’t want to. Yoo has taught constitutional and international law at Boalt since 1993.
A copy of the proposal is available here. Boalt law students have expressed outrage at the City Council’s proposal:
While it is difficult to imagine a dumber idea than attempting to go head-to-head with the United States Marine Corps, at least the City’s behavior in that fiasco was (relatively) harmless…. This resolution, however, is actually dangerous. Freedom of speech and liberal ideals cannot be squared with the idea that a city government may publicly disapprove of a political point of view by taking affirmative steps to sequester it. The use of governmental power to suppress controversial (even dangerous) viewpoints is a neo-conservative tactic more befitting Karl Rove than a local municipality. The City is taking exactly the kind of reactionary moral-low ground that the “birthplace of the Free Speech Movement” is supposed to stand against. Berkeley’s mindset here is cancerous, it is dangerous, it is abusive, and (from this liberal’s point of view) it is embarrassing.
Of course, the City Council has no jurisdictional authority to regulate Boalt’s teaching policies, and even if it did Boalt is already doing what the City Council is demanding. A Boalt spokeswoman has stated that “We respect the politics of Berkeley, home of the free speech movement, and their right to debate this issue. They can pass this measure, but it won’t have any bearing on the university’s policy.” Thus, I rather doubt that the City Council’s proposal is actually dangerous, but it most certainly is embarrassing to the city that purportedly is the home to free speech. If Yoo is convicted of a crime that is one thing, but as things stand he is protected by academic freedom. The Yoo case represents a true test of a university’s commitment to controversial, even dangerous, speech. Boalt is doing the controversial but correct thing in protecting him from these sort of tactics.
UPDATE: The Berkeley City Council took the far more tenable path of encouraging the federal government to take action against Yoo and declining any effort to set policy for Boalt. Story here and official video and agenda of the hearing here.
Leaving aside the issue of whether the City Council could order Boalt to offer alternatives, when it comes to his actions that some consider to be war crimes, these weren’t committed in his academic capacity but in his capacity as a government official.
“If Yoo is convicted of a crime that is one thing, but as things stand he is protected by academic freedom. The Yoo case represents a true test of a university’s commitment to controversial, even dangerous, speech. Boalt is doing the controversial but correct thing in protecting him from these sort of tactics. ”
Someone please explain to me why academic freedom protects Yoo’s job at Berkeley for what he did in government?
Best,
Ben
So has Yoo ever been convicted of anything?
The city can pass any resolution it wants, but they are just making fools of themselves. Even those who agree that Yoo is a nutcase will at least admit that a City Council should not be in the business of condemning individuals and calling them out to be prosecuted like this.
Stick to picking up the curbside trash, and maintaining the local libraries and schools please. That is where your priorities should lie.
Why should a city not do something about someone who has countenanced torture? The line of thought that thinks this is ridiculous reminds me of those who jeered at the mothers in the plaza in Buenos Aires.
Best,
Ben
Why not indeed, especially when it’s clear that Yoo was complicit in virtually every crime the Bush administration has committed since 911, including the rape of Iraq. Would UC tolerate a known serial rapist or murderer serving as a tenured professor of law? They might even attempt to enforce the law — see 18 USC § 3041 (power of courts and magistrates): “For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate judge, or by any chancellor, judge of a supreme or superior court, chief or first judge of the common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found, and at the expense of the United States, be arrested and imprisoned or released as provided in chapter 207 of this title, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the office of the clerk of such court, together with the recognizances of the witnesses for… Read more »
I suppose the part that disturbs me most is the attempt to interfere with Boalt’s policies, and the general principle of academic freedom (here I agree with Brian Leiter’s discussion some time ago at his blog); however, a decision to demand that Yoo be charged with war crimes seems perfectly acceptable if only for the reason Charles (and, secondarily, Benjamin) offers above. Now if in the unlikely event Yoo was ever in fact convicted of a war crime then of course Boalt’s appeal to academic freedom becomes otiose.
By the way, and as pointed out at the Law Librarian Blog,
Yoo’s torture memos…remain the subject of a DOJ Office of Professional Responsibility investigation. According to The Public Record, OPR investigation “is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo.”
Ben & Charles, You may disagree with my assessment of the situation, but I would like to share my view as a political lefty who (1) has opposed almost every single policy decision of the Bush Administration, and who (2) is a law student at Boalt Hall. Both of you ask why academic freedom protects Yoo even though he was working for the Government when he wrote the memo. At first it does seem confusing — he wasn’t working in his university capacity. But think about the question from the other direction. Ask yourself, do I want to live in a community where professors may be fired for their non-university activities? Personally, my answer to that question is “no.” University professors should only be fired when convicted of a serious crime. Because that has not happened here, firing Yoo before a criminal conviction would, I believe, set very dangerous precedent. I do not think the issue here is whether Yoo should be punished, or whether he was complicit in war crimes. That question (which, despite the political hype, has no bright-line answer — these are mind-bogglingly technical and complex legal issues) is separate from the question of whether the Berkeley City Council should have veto influence over the University’s decisions about whom to… Read more »
Patrick, I get where you’re coming from. The problem is that the considerations of “politics creeping into the decision making process” weighs entirely against the notion that there is any reason to wait for an indictment and trial, because the very people who are ultimately responsible for enforcing the laws are directly implicated in the crimes, including the President, the VP, the Attorney General, the acting Solicitor General, and the Secretary of Defense, etc. The evidence of the crimes is completely open and shut on the administration’s own public record, but set all of that aside — what would you think of UC Berkeley extending tenure as a biology professor to someone who advocated an absolute creationist view of evolution on purely theological grounds? Would you hire an Adolf Eichmann or Heinrich Himmler as a professor of comparative religious studies? Does academic freedom mean freedom from any standard of honesty or scholarship whatever? Does it mean giving patent lies and fallacies the benefit of the doubt? You ask if I want to live in a community where professors may be fired for their non-university activities. When those activities include willfully subverting the laws of the United States for criminal purposes including… Read more »
Thanks Patrick. I agree the City Council should not have veto influence. But, I see no reason why they can not do something in a resolution about what a professor did when he was not a professor (he was on leave). I am sorry to be obtuse, but it seems to me that the levers of power are profoundly in the hands of people and supporters of Yoo and that those of us who are seeking criminal prosecution have been going uphill for nearly five years on this. That a city council wants to say something about the local guy to me is a good thing.
As to the Office of Professional Responsibility doing a rebuke – that is really bs. We must remember that soldiers have been convicted of crimes for betraying their oath following the advice of people like Yoo. It is not enough to say he did a bad job – misfeasance – when the folks below get charged with malfeasance. Same standard for the high and the low. Office of Professional Responsibility is another slap on the wrist which these folks will where as a badge of honor.
Best,
Ben