Berkeley law school dean won't fire 'torture memo' author

Nick Juliano
Raw Story
Saturday, April 12, 2008

The dean of Berkeley's law school says he is "substantively" troubled by former Justice Department lawyer John Yoo's legal memos, which critics say authorize torture, but he does not believe Yoo's conduct while working for the Bush administration justifies his dismissal from the law school where he has taught for a decade.

As a tenured professor at the University of California, Berkeley, Law School, Yoo has a guarantee of employment that can only be removed in the most extreme circumstances, writes Dean Christopher Ederly, Jr., in a statement posted to the school's Web site.

"My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley," Ederly writes. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless."

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Yoo authored several controversial memos that authorized harsh interrogation methods critics say are tantamount to torture, and he outlined a legal doctrine with a vastly expanded interpretation of a president's powers during war time. The National Lawyers Guild has called on the law school to dismiss Yoo because of his hand in these opinions. Although he won't fire Yoo, Ederly harshly criticized his opinions.

"What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics," he writes. "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 demands greater, not reduced, vigilance for constitutional rights and safeguards."

Ederly goes on to outline the necessary threshold to dismiss a tenured professor at a public university like Berkeley.

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 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 Regents:

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, 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 position? Did the writing of the memoranda, and his related conduct, 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.

The House Judiciary Committee is investigating the administration's approval of "torture policies" and has invited Yoo to testify along with several other current and former high-ranking Bush administration officials.

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