Free to be You?

Should controversial political viewpoints affect a professor’s job security?

by Jake Parsley

To his opponents, John Yoo represents the worst aspects of the recently departed Bush administration. Yoo worked as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice from 2001-2003 and played a key role in shaping the Bush administrationâÄôs policies regarding detainee treatment after the terrorist attacks of Sept. 11, 2001. YooâÄôs writings for the OLC reflected an expansive interpretation of presidential power during times of war. When some of the so-called âÄútorture memos,âÄù of which Yoo was a chief architect, were released last April, The New York Times summarized the documents as âÄúdozens of pages of dispassionate legal prose âĦ the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail âÄî like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.âÄù Yoo himself described the composition of the memos on âÄúThe Daily ShowâÄù in a Jan. 11 appearance. âÄú[The White House and the CIA] came to the Justice Department âĦ and they said, âÄòWhat are the legal limits of what weâÄôre allowed to do in interrogation?âÄô âÄù Yoo said. âÄúHow much can we interrogate people and not violate the ban on torture?âÄù Essentially, according to Yoo, the activities that he and his fellow attorneys at the OLC recommended to the Bush administration were not, legally speaking, âÄútorture.âÄù But this column is not about the legal or moral limits on the interrogation of suspected terrorists. This column is about YooâÄôs role as a law professor. Yoo has taught at the University of California, Berkeley since 1993. Not surprisingly, YooâÄôs work for the administration has been viewed with skepticism by some. YooâÄôs academic credentials are remarkable and include degrees from Harvard and Yale, multiple scholarly publications and a clerkship on the Supreme Court of the United States. But many in the legal community believe that YooâÄôs legal advice regarding torture (or, if you prefer, enhanced interrogation) should prevent him from teaching. YooâÄôs list of opponents is long. In an April 2008 press release, the National Lawyers Guild âÄî a group of self-described âÄúprogressive civil rights attorneysâÄù âÄî said that âÄúJohn Yoo should be disbarred and he should not be retained as a professor of law at one of the countryâÄôs premier law schools. John Yoo should be dismissed âĦ and tried as a war criminal.âÄù Protesters have picketed the past several UC Berkeley Law School graduations because of Yoo, and his spring semester class locations are not publicly listed on the Berkeley Web site because YooâÄôs classes have routinely been interrupted by protesters. The anti-Yoo movement has their own Web site at The University of Minnesota Law School faced a similar situation a few years ago when Robert Delahunty, a professor at St. Thomas Law School, was brought in to teach a constitutional law class in the spring of 2007. Like Yoo, Delahunty was a former employee at the OLC who wrote and sometimes co-wrote with Yoo memoranda regarding âÄúthe use of military force to prevent or deter terrorist activity.âÄù A petition was circulated among students of the Law School protesting the hiring of Delahunty, and nine faculty members at the school argued against DelahuntyâÄôs appointment in an open letter to the University community. âÄúWe can only assume that the Law School would not have hired Enron to teach accounting to our students. Nor should we hire, even if on a temporary basis, a lawyer so directly implicated in what many in the international community regard as war crimes,âÄù the faculty letter stated. Interestingly, as I was writing this column, Newsweek reported that the Office of Professional Responsibility, an ethics watchdog unit within the Department of Justice, has concluded in a forthcoming report that Yoo and another OLC lawyer, despite exercising âÄúpoor judgment,âÄù did not violate their professional obligations as lawyers in writing the controversial detainee memos. So it appears that there will be no official sanctions for Yoo regarding his work for the OLC, yet the battle over his academic position rages on. Should the likes of Yoo and Delahunty be allowed to teach the next generation of lawyers? Apparently a lot of people think they shouldnâÄôt. But I find the practice of blackballing disagreeable viewpoints in the world of academia unsettling. Is it possible to be so certain of the legal and moral boundaries in the realm of international terrorism that we can exclude certain corners from even participating in the debate? Were the torture memos controversial? Of course. Were they unconstitutional? Illegal? Immoral? Maybe, and maybe not. As long as our nation fights terrorists, this will continue to be an important political discussion, and tomorrowâÄôs political leaders are being trained in the nationâÄôs colleges and universities today. I think Christopher Edley, the dean of BerkeleyâÄôs law school, summarized things perfectly in an April 2008 response to calls for YooâÄôs removal. âÄúMy sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor YooâÄôs analyses, including a great many of his colleagues at Berkeley,âÄù Edley wrote. âÄúIf, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.âÄù