The day I arrived there was a protest in front of Boalt Hall about the return of John Yoo -- architect and/or tool of the Bush torture policy -- which launched a defense of Yoo's academic freedom by Dean Christopher Edley of the Law School. Here is the text of Edley's email. I think it is a thoughtful approach to the issue and though I personally think Yoo is merely one (and not the biggest) of the unindicted war criminals of the Bush administration, the case for academic freedom here seems to be to indisputable.

Edley wrote in part:
"What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demanded greater, not reduced, vigilance for constitutional rights and safeguards.

What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach or even a war crime? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter—provide a bulwark to political and bureaucratic discretion. And it shouldn’t require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here at the University of California is the relevant excerpt from the “General University Policy Regarding Academic Appointees,” adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of

Types of unacceptable conduct: … Commission 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. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate. But I will put aside that shield and state my independent and personal view of the matter:

I believe the crucial questions in view of our university mission are
these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic performance now? Did writing the memoranda, and any related acts, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met."

and here is an interesting critique of it on Opinio Juris.


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