Brian W. Carver -- Share Alike

Boalt Controversy over Yoo Memo

Some background first, then some analysis:

On Friday, May 21, 2004 many Boalt students received a message like this:

Dear fellow Boalt students and alums:

By now, many of you have heard about the role Boalt Professor John Yoo played as part of the Bush Administration to pave the way for the egregious violations of international law we are seeing committed by US troops today in Iraq (see MSNBC or The NY Times).

A group of us graduating 3Ls decided that we could not stand by without speaking our outrage about Professor Yoo's actions as Deputy Assistant Attorney General under Bush. We've articulated that outrage in the attached petition and invite you now, as fellow students of any year and alumni, to join us.

If you are so inclined, please sign the petition at http://www.PetitionOnline.com/bh2004/petition.html before graduation on Saturday. Shortly thereafter we aim to present our perspective to Professor Yoo and the Boalt Administration.

Thanks for considering joining us. If you have comments or ideas, please send them to yoorepudiate at yahoo.com

The email was signed by eight current or graduating Boalt students who organized the effort. In case the news articles disappear, they mention a memo written by Boalt Professor John Yoo while he worked for the Office of Legal Counsel. The Newsweek article revealed that:

...on Jan. 9, 2002, John Yoo of Justice's Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.

Cut out of the process, as usual, was Colin Powell's State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, "we were horrified," said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department's chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis "seriously flawed." State's most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions," Taft wrote. "I have no doubt we can do so here, where a relative handful of persons is involved."

I have tried in vain to find a copy of the memo itself. If anyone can find the memo, please post a link here.

The petition read:

To: Boalt Administration and Prof. John Yoo

We, the undersigned students, graduates and alumni of the Boalt Hall School of Law, put forth this petition to express our outrage at certain actions taken by Boalt Prof. John Yoo during his tenure as Deputy Assistant Attorney General for the Office of Legal Counsel.

According to a recent report in Newsweek Magazine entitled “The Roots of Torture”, Prof. Yoo authored a memorandum in January, 2002 advising the Bush Administration that the protections of the Geneva Conventions would not apply to prisoners held by the United States in its execution of the war in Afghanistan. While Secretary of State Colin Powell and lawyers for the State Department vigorously sought to repudiate Prof. Yoo’s flawed legal analysis, subsequent actions taken by the Bush Administration and the military demonstrate that our government has taken Prof. Yoo’s advice to heart.

We believe that the actions taken by Prof. Yoo contributed directly to the reprehensible violations of human rights recently witnessed in Iraq and elsewhere. By seeking to exploit and magnify any technical ambiguities in the Geneva Conventions and the laws of war, Prof. Yoo and the Bush Administration have created a climate of disdain and hostility towards international law, effectively opening the door to the acts of outright torture, rape and murder that we now know were committed by United States soldiers and civilian interrogators. Such abuses, if not explicitly ordered by the Administration or military commanders, were at the very least a foreseeable consequence of crippling the protections of the Geneva Conventions in the context of the “war on terror”.

The terrible consequences of these policies have now demonstrated their folly. The standing of the United States has suffered serious, lasting damage in the eyes of the world, while groups such as Al Qaeda have been strengthened and encouraged. As a result, the Bush Administration’s contempt for international law in numerous contexts has severely hindered our efforts to fight terror.

We therefore call on Prof. Yoo:

1) To follow the example of Boalt Hall's finest alumnus, Chief Justice Earl Warren, by his expression of deep regret for supporting the internment of Japanese Americans during World War II;

2) To publicly and unequivocally repudiate his official governmental position with regards to the application of the Geneva Conventions as applied to prisoners captured by the United States anywhere in the world;

3) To use his influence with the Bush Administration to encourage United States compliance with the Geneva Conventions in all its military endeavors; and

4) To reject as immoral the use of interrogation techniques involving serious physical and psychological coercion, regardless of whether he believes they may or may not be technically defined as “torture” under existing laws.

Should Prof. Yoo refuse to take these actions, we would then call on him to resign as a faculty member of the Boalt School of Law.

We emphasize that this petition does not constitute an attack on academic freedom, as we fervently believe in a free and open discussion of ideas; rather, our position is a response to those governmental actions taken by Prof. Yoo in his official capacity as Deputy Assistant Attorney General that have caused severe damage to this nation, and the world.

Sincerely,

It was signed by many current students and alumni. As of May 29, the total was 295 signatures.

Then at graduation, some 3Ls participated in a silent protest by wearing red arm bands over their gowns. This action received news coverage before graduation at The Oakland Tribune and afterwards in an AP story.

Then, a week after the first message, on Friday May 28, a number of students received the following email:

Fellow Boalties,

We are a group of students that are becoming concerned with the growing anti-free speech climate at Boalt Hall. In response to calls for faculty resignation and looming speech codes, we have drafted a petition to send an unequivocal message to the Boalt Administration that the student body demands that free speech and academic liberty be protected.

We understand that most of you strongly disagree with the opinions expressed by these faculty members, but we urge you to sign the petition, not as an affirmation of the challenged beliefs, but as a display of your commitment to free speech rights. Any feelings you have as to the content of the speech may be addressed in the "comments" section of the petition. This space is provided so that you do not feel bound by the language of the petition, please express yourself.

http://www.petitiononline.com/boaltfs/petition.html

Most importantly, forward this on to people you think would be interested.

Many Thanks
The Concerned Boalt Students Coalition
concernedboaltstudents at yahoo.com

The counter-petition read:

To: Interim Dean Robert Berring, Assistant Dean Victoria Ortiz, and Dean Christopher Edley

Petition in Defense of Academic Liberty, Free Speech, and Open Discourse at Boalt Hall School of Law

We, the undersigned students and alumni of the Boalt Hall School of Law, put forth this petition to express our concern about the growing threat to academic liberty and free speech at our institution.

In April of this year, interim Dean Robert C. Berring responded to a student complaint that alleged racially insensitive comments had been made by a guest lecturer during a role-play exercise. Dean Berring's solution to this incident was the proposed drafting of a speech code for Boalt faculty, which would outline what language or subjects were permissible, in effect issuing a prior restraint on professors' speech. Still more troubling was Berring's stated plan to resolve the "personnel issues involved;" this comment seems to suggest reprisal against the non-tenured faculty member that had invited the guest lecturer.

More recently, a group of Boalt students has called for Professor John C. Yoo to repudiate a January 2002 memorandum, written while he was a Deputy Attorney General for the Office of Legal Counsel. In this memorandum, Professor Yoo analyzed the legal status of non-state enemy combatants, namely Taliban and al-Qaeda operatives, and proposed that said combatants were not protected by the Geneva Convention. This group of students has called for Professor Yoo's resignation as a professor of law if he does not repudiate his past findings.

Regardless of the merit or veracity of the above viewpoints, the undersigned are unanimous in the belief that unfettered dialogue should be the paramount concern of any academic institution. The proposed retaliatory measures, if realized, would undo decades of free speech tradition at U.C. Berkeley, which has been a haven for both mass movements and the exposition of unpopular opinions. As such, we fully support the right of those students to engage in protest and to petition, but we reject the imposition of speech codes and retaliatory hiring and retention practices.

The enterprise of law school is a laboratory in which opinions and beliefs are ushered into our great marketplace of ideas. History and public consensus are free to reject any of these espoused views, but such a determination can only come about through free and open discourse.

We therefore make the following resolution:

1) We, the undersigned, reject the May 21st petition which called for Professor Yoo's resignation, and condemn any attempt to implement a new speech code or the enforcement of any preexisting speech code.

2) We, the undersigned, reaffirm our abiding belief in the right of free speech and academic freedom.

3) We, the undersigned, demand that the Boalt Administration reaffirm its commitment to academic liberty and free speech, and formally recognize these rights as inviolable.

We, the undersigned, make this resolution, and do so without expressing approval for any of the viewpoints at issue.

Sincerely,

A day later it had 116 signatures.

I have not signed either petition. This is primarily because I think both make excellent points and both fail to appreciate all the relevant points the other side makes. I also think the entire debate would proceed better if all involved had read the memo. As I said, I have not read it because I cannot find a copy. On the other hand, the key concerns I have with the petitions might not be resolved by the memo's content itself. Here's why.

The memo could, from a legal standpoint, be well-argued or not. If it is a total sham piece intended only to support a convenient course of action for the Bush administration, then it should be condemned and might be so irresponsible as to represent something that we would not want from any Boalt faculty member. I doubt that its arguments are that bad.

However, even if it is well-argued from a legal standpoint, one only needs to hear the conclusion to rightly say that it is certainly short-sighted. A large purpose of the Geneva convention is self-protection. We agree to treat prisoners humanely, in part, because we want our own soldiers to be treated humanely when they become prisoners. So, good legal distinctions or not, the obvious consequence of deciding not to treat some prisoners according to the guidelines of the Geneva Convention is that others, be they nations or rogue groups, will be more likely to find their own legal distinctions to justify treating our soldiers and citizens inhumanely as well. This is an ill-advised path to follow. I am not sure it rises to the level of calling on a faculty member to resign.

But another motivation for the Geneva convention is a simple appreciation of human dignity. Again, one need only hear the conclusion of the memo to rightly say that it seems to fail to adequately appreciate the importance of treating all people with respect. This is a core value of American society and Common Law legal systems. Suppose you had an accused criminal that was guilty beyond any shadow of a doubt. Why do we provide this person with all the same legal protections of the innocent? (Think on that.) I believe one big reason is a simple appreciation of human dignity. We say to the guilty person, "We so respect human dignity, that we will provide you with all the protections of our legal system. We value human dignity too much to do otherwise." There are other reasons for this practice as well.

The issue here also goes beyond legal due process concerns to the justification of torture. Ethicists debate whether the information a terrorist might reveal could ever justify torture. I do not know of any who believe it can be justified except in the narrowest of dire circumstances. Human dignity again demands such practices be abhorred. But the question here becomes, does a law professor's failure to agree with or appreciate the value our legal system places on due process rights and the values of human dignity in these contexts rise to the level of requiring his resignation? I think that's a tough question about which reasonable people could disagree. Here, in particular, the actual text of the memo might be crucial.

Those who called for resignation make a distinction between Yoo's public policy work for Government with his academic endeavors. They call for his resignation, not because of anything he said in a classroom or as part of his academic work, but because of his actions while in Government. This distinction is supposed to support the notion that one can call for his resignation while supporting his academic freedom. I believe this distinction fails. You inevitably implicate academic freedom when you suggest resignation as the solution for extra-academic speech. Call on him to repudiate his views, call on him to rethink them, call on him to better justify them, but resignation from an academic post seems an inappropriate solution.

I doubt one could find a more staunch defender of academic freedom than I. I agree that "unfettered dialogue should be the paramount concern of any academic institution." But I also am willing to be persuaded that some actions in some contexts can be so irresponsible as to not represent the good judgment we expect of our faculty. A friend recently reminded me that those in the Nazi government likely wrote many memos supporting their actions, and might protest they were just doing their jobs or that they had good legal distinctions on which to base their positions. But there comes a point when the fascists have taken power that you have to stand up for what is right and doing otherwise is immoral and irresponsible. Does the present situation go this far? I'm not sure.

I do believe that there is probably nothing the Bush administration has done that is more misguided or more dangerous than its treatment of those it detains. From the Arab "material witnesses" detained after 9/11 for months on end to Guantanamo to Padilla and Hamdi to Abu Ghraib, the administration's view that it can presume guilt, fail to provide counsel, not bring charges, etc. is frightening and contrary to true American values. An argument could be made that supporting such a sweeping reversal of important civil liberties is so irresponsible that it has no place among Boalt's faculty. I have yet to see that argument made convincingly though. I think it is difficult for anyone truly committed to academic freedom. (I would also revise the above to say that the administration's policy of pre-emptive war is probably more dangerous and frightening.)

So, without further information, I think those who call for resignation may be unjustified in thinking there is a relevant distinction that justifies calling on a faculty member to resign for their work in government policy-making. Any call for resignation implicates academic freedom. But I also think the staunch defenders of academic freedom have to ask themselves tough questions about its limits. Let's have a look at the memo. Let's think about the consequences of the policies of this administration. Let's think about the values that support our commitment to due process rights and the rights of prisoners to humane treatment, free from coercion. A careful articulation of those values and their place in the present context might lead us to believe that those who fail to appreciate these values are miserable failures as faculty members at a law school.

Yoo is quoted in the AP article above as saying, "I'm happy to listen to their viewpoints. Beyond that I'm not going to change what I think." I hope this represents an offer to be persuaded by reasoned argumentation. If so, more effort should be expended on carefully explaining why Yoo's current view is unsound. He says he'll listen and he might even be persuaded. If on the other hand, his declaration that he's not going to change what he thinks represents an unwillingness to even entertain the possibility that an alternative viewpoint could persuade him to change his mind, then that attitude would truly be one worthy of requiring his resignation.

I also posted this in an online forum for Boalt students.

Posted by Brian at May 29, 2004 11:59 AM | TrackBack