Grasping Reality on TypePad, by Brad DeLong

Berkeley law dean Chris Edley writes on John Yoo "as dean, but speaking only for himself" here.

I am not satisfied:

Dear Chris--

I note your statement in re John Yoo that:

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..."

I don't yet have an informed view in re John Yoo--I am not a lawyer. I suspect that when I have an informed and settled view it will be the Ernst Kantorowicz view: that once somebody is a member of the university their judgment is not to be constrained in any way whatsoever on any question that could possibly be considered "political."

But I do know lawyers expert in human rights who say that in their judgment John's memo of March 14, 2003 suggests a fact pattern that, if developed and filled out in ways that we can reasonably project, make him part of a conspiracy to commit crimes against what Thomas Jefferson would call Nature and Nature's God.

And I do know lawyers expert in constitutional law--including some Boalt professors--who say that in their judgment the failure of John's memo to make any attempt to distinguish the situation he was analyzing from the situation in Youngstown takes the memo out of the realm of possible good-faith argument and into that of being a serious breach of professional ethics--misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work.

I cannot help but think that it is time for some appropriate arm of the university that is expert enough to have an informed view to consider the matter, and to advise me and the rest of the faculty (a) why John's memo of March 14, 2003 does not, despite appearances, rise to the level of participating in a conspiracy to torture goatherds from Afghanistan who have been sold to the military by clan enemies falsely claiming they are members of Al Qaeda; and (b) why John's memo of March 14, 2003, does not, despite appearances, constitute a breach of the duty of a lawyer to his clients (in this case, the majors and colonels of the U.S. army who did the torturing) of a level equivalent to that of the falsification of evidence in a scholarly work--or to say (c) that in spite of substantial evidence of participation in a conspiracy to torture innocent goatherds and to deceive the majors and colonels who were his clients and acted in reliance on his advice, the Kantorowicz freedom-of-academic-speech position still applies.

I would like to know.

There is, I think, only a choice of poisons here no matter which way Berkeley moves. But I would like smarter and more informed people than me to publicly say what they think the least damaging poison for us all is.

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Yours,

Brad DeLong