html xmlns="" xml:lang="en" lang="en"> From the archives: Maybe if the country were torturing white girls.

Friday, April 04, 2008

Maybe if the country were torturing white girls.

I want a statement from Boalt Hall and from the Regents of UC clearly stating their position on John Yoo. They could say lots of things. They could say:

Dude. We love torture and wish we could crush the testicles of small children personally, but our dirty hippie neighbors won't watch our houses for us when we go on vacation if we do. Prof. Yoo is our man!

They could say:

Oh man. Firing him would be a huge hassle. You don't know. Besides tenure, there are a million contract issues and the press would be unbelievable. From the inside, on a daily basis, he does a decent job teaching and is reasonably socialized and by now I'm pretty good at walking past him in the halls and shutting out the idea of repeatedly drowning innocent men. Besides, those men didn't look like me.

They could say:

It is too bad that we can't follow the train of causality between Yoo's memo and establishing a novel torture regime in the United States. These things are so complicated and all he did was write a memo. If only there were some discipline, some field that deals with responsibility for crimes, how to weigh those and what the penalties should be. But since there isn't, we don't know what to do. I guess we'll just do nothing!

They could say:

Thinking about this makes me aware that everything we teach about the rule of law is a blatant lie. Thinking about how I violate my personal standards for decency every day that I work with John Yoo makes my head hurt. So I'm not going to think about it. Hasn't the asparagus been tasty recently? I grilled it last night! Delicious.

They could say:

You know what is important to me? Technicalities and protecting the privileged. I love an abstract idea about scholarship way more than I care about torturing brown people. I don't even have to watch the torturing, so it practically doesn't exist! Now see, I can talk how tenure works and if I think about it long enough, it totally balances out practically non-existant things.

They could say:

Yes. Integrity matters to us and so does the concept of consequences. We are not a body that punishes, but we do not have to have a man who enabled our country to descend into torture among us. Praise the day when he is brought before a war tribunal, but until then, we will not tolerate him in an institution dedicated to the principle of law.

They have to say something, though. Dodging the question is unacceptable for a public university. I would respect any of the statements above more than I respect pretending that it isn't a problem.

UPDATE: Full props to Berkeley Law School Dean Edley for explicitly stating his position on Prof. Yoo. Looks like they went with Option 4. Also worth noting is that Dean Edley's read on the Faculty Code of Conduct is very close to Prof. Rauchway's.

UPDATE 5/6/8: Strangely, William Drummond, Chair of the Berkeley Division of the Academic Senate of the University of California went with Option 3, "No Expertise". Honestly, I didn't think Option 3 would get any takers. I thought my made-up reasons were facially ridiculous.


Anonymous Anonymous said...

While the public generally doesn't seem to have too much taste for the adversarial nature of practicing law, this is also a good example of why we have an adversarial system.

Had a similar memo been written that explained all the ways the same acts of "torture" were illegal, and all the ways those partaking in them would be held accountable, my money would be on that one prevailing in a court of law.

Any good attorney will provide her client with both arguments, and generally advise at to which is more in line with precedent and most clients would then choose the more risk-averse option.

What's unclear is whether the DOJ was asked for or provided a full analysis, or only those that suited the administration's wants.

In a business situation, this can lead to some pretty bad situations - they might have created a product without adequate safeguards, discriminated against individuals or groups of people, perhaps inappropriately disposed of hazardous materials, engaged in transactions that smell of fraud; some employees might get fired, product users might get hurt, money may be lost.

In a global political situation, this takes the risks to a whole other level. When we consider this military debacle, who is getting fired? Who is getting hurt? How much money is being lost?


3:03 PM  
Anonymous Anonymous said...

more directly related to your post, because boy did I get a little tangential.

I'm not sure if I agree Yoo should be fired for drafting a memo that explained how to possibly avoid culpability or that explained how certain acts might be construed as legally-ok. I might not even fire him for holding a view (if he even so holds it) that torture is okay.

My concern, as an institution for teaching the rule of law, is the misapplication of the laws and the failure (as shown in those memos) to interpret them in a balanced way and in a way that respects precedent and existing law. Reasonable minds will always disagree as to the interpretation of laws, but all should respect those laws that are in existence and the precedence on the books. We can change the laws, but we are bound to honor those that exist.

I was told often that if we didn't provide both sides of the issues in our exams, we'd fail.

How can Mr. Yoo teach that?

3:10 PM  
Blogger generic said...

Geez, it's amazing how closely that indictment extends not just to Boalt, but the to general populace. Let's see:

... dirty hippies ... huge hassle ... didn't look like me ... so complicated ... rule of law? ... abstract idea ... I grilled last night!

Yep. That pretty much covers it.

6:17 PM  
Anonymous Anonymous said...

They could say
“We’ve read the Bybee memo, it’s on Findlaw, so we know it states the law uncontroversially. He’s in line with the European Court of Human Rights in Ireland v United Kingdom (1978).

“We don’t whether anyone had formed the idea of waterboarding, and if so whether it had been described to John Yoo, before the memo was drafted, but the memo doesn’t read as though he’s lining it up. He’s literal all the way through about setting out implications clearly for his clients.

“Advices of Attorneys General and their political-level staff, to politicians, routinely read like this. Lawyers’ advice to clients is given in the form ‘It might be illegal; if anyone complains here are your defences.’ If you think the Executive shouldn’t canvass possibly illegal activity with their lawyers, then you think that the Executive shouldn’t do anything new ever again.”

“Waterboarding wouldn’t have happened unless a lot of people were prepared to go along with. A majority in the Senate doesn’t want to stop waterboarding.

“The channel through which to stop waterboarding is through your elected political representatives.”

2:20 PM  
Anonymous Anonymous said...

Actually, I think it's too late for Berkeley. What's astonishing is the pathetic fact that he capitalized on his position of enabling war crimes to land a position and achieve tenure.

So, the correct result is removing the dean that enabled this, since he does serve at the pleasure of the University President (or near enough - you might have to wait for a contract non-renewal moment).

But what else? How does a bar association tolerate a functional Nazi as a member? Remember, Yoo was not litigating here - he was under a duty to the Constitution to NOT give an opinion that enabled war crimes. He swore an oath, as all attorneys do, and there was no duty-to-client here that would allow him to push extreme ideas.

First step is disbarment. Then let's see if he can continue to be a professor of law.

2:44 PM  
Blogger Megan said...

What's astonishing is the pathetic fact that he capitalized on his position of enabling war crimes to land a position and achieve tenure.

I'm fairly sure he was a professor at Berkeley law school, took a leave to work for the Bush administration and returned to his professorship after.

3:08 PM  
Anonymous Anonymous said...

It is sunny and warm in Chicago today - at 63 degrees it is the warmest day in the past 3 months. People are out in the streets, and the sun warmed my shoulders as I walked about. I am inside now though because that's where the wireless is.

10:39 AM  
Anonymous Anonymous said...

Ennis -- YES! It was such a wonderful weekend here. People flooding out on the streets, lunching outside, enjoying the sun on our faces. Hooray for Chicago in the springtime! --A

9:47 AM  

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