The List as of May 5,2008

Matthew C. Waxman

David S. Addington

John C. Yoo

William J. Haynes

Timothy E. Flanigan

Patrick F. Philbin

Robert J. Delahunty

John B. Bellinger III

Jay S. Bybee

Harriet E. Miers

Alberto R. Gonzales

Steven G. Bradbury

Daniel J. Dell'Orto

Douglas J. Feith

I. Lewis Libby

John A. Rizzo

John D. Ashcroft

John R. Bolton

Elliott Abrams

Gary L. Bauer

William J. Bennett

James Danforth Quayle

Peter W. Rodman

Stephen J. Hadley

Michael E. Dunlavey

Michael B. Mukasey

Viet D. Dinh

Brian A. Benczkowski

Alice S. Fisher

Statement from the Dean of UC Berkeley Law School Re: John Yoo

This statement was sent to the National Lawyers Guild by Prof. Christopher
Edley, Dean of the UC Berkeley Law School (Boalt Hall):


THE TORTURE MEMOS AND ACADEMIC FREEDOM

Christopher Edley, Jr.

The Honorable William H. Orrick, Jr. Distinguished Chair and Dean

UC Berkeley Law School

While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers' Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo's continuing employment at U.C. Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley's classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments -- be they left or right or lazy -- will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Did what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

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. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture", about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I don't believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

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 demands 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. 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 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.

April 10, 2008



2) University of California Personnel Manual

UC Office of the President --

UNIVERSITY OF CALIFORNIA
ACADEMIC PERSONNEL MANUAL

http://www.ucop.edu/acadadv/acadpers/apm/

Relevant sections...

* APM-015-II(E):

E. The Community

Ethical Principles. "Faculty members have the same rights and obligations as all citizens. They are as free as other citizens to express their views and to participate in the political processes of the community. When they act or speak in their personal and private capacities, they should avoid deliberately creating the impression that they represent the University." (U.C. Academic Council Statement, 1971) Types of unacceptable conduct:

1. Intentional misrepresentation of personal views as a statement of position of the University or any of its agencies. (An institutional affiliation appended to a faculty member's name in a public statement or appearance is permissible, if used solely for purposes of identification.)

2. 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.

* APM-075-II-C(3):

University Service, Public Service, and Professional Service Teaching and research are the main responsibilities of members of the professorial series, but reviewers shall also examine the quality and quantity of the individual's contributions in the areas of University service, public service, and professional service as part of the assessment of an individual's overall performance. As a guide in evaluation, reviewers shall use APM-210-1-d(3) and (4).

* APM-210-I-d(3):

Professional Competence and Activity -- In certain positions in the professional schools and colleges, such as architecture, business administration, dentistry, engineering, law, medicine, etc., a demonstrated distinction in the special competencies appropriate to the field and its characteristic activities should be recognized as a criterion for appointment or promotion. The candidate's professional activities should be scrutinized for evidence of achievement and leadership in the field and of demonstrated progressiveness in the development or utilization of new approaches and techniques for the solution of professional problems, including those that specifically address the professional advancement of individuals in underrepresented groups in the candidate's field. It is responsibility of the department chair to provide evidence that the position in question is of the type described above and that the candidate is qualified to fill it.

His own fault....

....

Judge Bates used a footnote to express irritation that a fair number of people concerned about Al-Ghizzawi's plight wrote to him… funny thing that, as a letter writing campaign by Scooter Libby fans and political allies to another federal judge on the very same court to try to keep old Scooter out of jail didn't seem to be a problem there. Judge Bates did say that he read all of the letters but was nonetheless resolving the matter “based on the law and the medical declarations that detail the care available to Al-Ghizzawi,” and that does represent, in form at least, what the Judge did. He reviewed the affidavits from the government and its doctors that detailed the care that the government said was available to Al-Ghizzawi if only Al-Ghizzawi would avail himself of it. Judge Bates conveniently ignored the affidavits from Al-Ghizzawi’s side of the case, notwithstanding that Al-Ghizzawi's affidavits absolutely disputed everything the government said and that the government could not be bothered to provide the actual medical charts to demonstrate that anything it said was true. So Judge Bates simply based his decision on the medical declarations from the military that detailed its version of the care available to Al-Ghizzawi, and called it a day.…

Counsel for Al-Ghizzawi respectfully suggests that it is not clear exactly what “law” the good judge was following: the law of war (in which case, heaven help us, the Geneva Conventions might just have to apply) or the laws of the United States regarding detention and custody of prisoners? Since Judge Bates seemingly elected not to follow either, I can only conclude that there must be some new brand of law that this particular counsel didn’t learn in either law school or come across in 25 years of practice.

The good judge made no comment about the fact that the government refused to confirm or deny the diagnosis of AIDS (apparently acquired while in American custody) that was casually dropped on Al-Ghizzawi by base personnel that led to the current round of motions until the government was ordered to come clean. So once again without looking at the medical records, Judge Bates decided that those records (that he did not see or ask to be shown) must conclusively demonstrate that Al-Ghizzawi conjured up the AIDS claim in his head and under no circumstances might it either be valid… or perhaps that a facility notorious around the world for the abuse and torture of its prisoners might chose to play some sadistic game on one of its guests. Oh yes, and further proof of the appropriate and fully adequate care that Al-Ghizzawi is receiving is shown in the fact that when counsel pointed out in court papers that Al-Ghizzawi had no use for the eyeglasses for distance that he was provided for use in his 4 x8 foot cell, but would have liked reading glasses. The government then claimed that it tried to haul Al-Ghizzawi back in and test his eyes again (for reading glasses…) this of course was after Al-Ghizzawi has not been able to read for want of glasses for almost one year.

The good news is that at least we all know that if Mr. Al-Ghizzawi dies, it is his own fault, because Judge Bates so held. Similarly, it is Al-Ghizzawi’s fault that he can’t swallow cold water and therefore can’t take the pills given to him for diarrhea. It is also Al-Ghizzawi’s own fault that he believed the lies that the medical staff told him when they told him he had AIDS and when they told him that a biopsy could cause permanent damage to his other vital organs… of course now the military says that these things are not true, so we must conclude that Mr. Al-Ghizzawi must have been lying about everything, including presumably the fact that the military itself has found that there is no reason whatsoever for Al-Ghizzawi to even be held at Guantanamo as a prisoner (oh wait, I have that report in writing)…..coincidently, this fact led the United States Supreme Court to reconsider hearing an appeal brought by Guantanamo detainees, but that of course, is yet another story.

So, as the good judge said “the record is clear that adequate medical care is available and has either been provided or offered”. And it is clear, of course, if one only reads the unverified, uncorroborated record as provided by the government without even bothering to see if the medical charts were consistent with that account, and if you conveniently don’t give any credibility to Al-Ghizzawi’s side because doing so might be inconvenient (and worse, perhaps justify a different outcome). Under such circumstances, the record certainly is clear.