I've managed to last this long without commenting on John "If the president decides that it's necessary, it's legal!" Yoo and I have no intention of breaking the streak today. I have no more inclination to dissect the raw idiocy of his words and actions than I have inclination to box a 90 year-old woman. I use that analogy purposefully, as the activities have their level of difficulty in common.
The issue at hand in the Ivory Tower is whether or not UC-Berkeley should dismiss Yoo. The WaPo had a pro/con editorial debate about the issue (h/t Non-Seq) and Ruth Marcus weighed in on the Don't Fire Him side. Marcus, like everyone else to the left of Curtis LeMay, concedes that Yoo's memo illustrates "shoddy legal reasoning" and is both "outrageous" and "repellent." She also notes that the administration rejected the memo. Her conclusion: Yoo may be a moron, and he may be wrong, but these are not reasons to fire someone. Free speech, 1st amendment, academic freedom, insert red herring here, etcetera.
Firing tenured faculty is hard. Real hard. Marcus notes:
Absent "very substantial evidence" of "clear professional misconduct" or criminal violations, Edley said, "no university worthy of distinction should even contemplate dismissing a faculty member."
She goes on to conclude (implicitly) that Yoo's actions constitute neither criminality nor misconduct. That's a fantastic leap across Assumption Gorge, yet Marcus seems to think this is simply obvious; her entire argument is premised on the assumption that, duh, of course he did nothing illegal.
Here's the rub. A professional who writes a blueprint for how to commit war crimes under the flimsiest, shoddiest, not-a-chance-to-stand-up-in-court reasoning could be considered a lawbreaker. Committing murder and plotting a murder are both crimes. Committing torture and plotting torture could also be argued to share that relationship. I'm not a lawyer and I'm not going to try to answer that question. My point is only that it's far from obvious that he violated no laws, and even less so that he did not engage in misconduct as a lawyer.
And then she writes her way onto logic's shit list.
Pearlstein, a human rights lawyer, found Yoo's memo "blatantly, embarrassingly wrong under the law," but she conceded that legal conclusions lack the hard certainty of scientific truth. Yoo should no more be removed from a teaching job than a Supreme Court justice who writes a despicable opinion — upholding slavery, allowing separate but equal facilities, permitting the internment of Japanese Americans during World War II — should be impeached.
Bullshit stacked upon crates of bullshit. Slavery is blatantly unconstitutional, and a judge who authored an opinion today supporting its legality would in fact be impeached. It's no different than if a judge decided that murder is legal. But to Marcus, these issues are apparently subjective. Reasonable people can disagree about the legality of slavery or torture. No "hard certainty." Yoo's actions constitute little more than expressing an opinion. And we know everyone's entitled to those!
No. This is not an opinion issue. Torture. Is. Illegal. Period. The Constitution does not give the president the power to supercede the law with his wishes simply by saying "wartime powers" or "Article II" or "I think this is really, really necessary." The entire "academic freedom" angle is nothing but a red herring. This has nothing to do with Yoo's right to express an opinion. If he wants to say that Freemasons run the country or torture is cool or Proust is boring he has every right to do so. This is about hard facts. Not opinions. Not subjectivity. Not reasonable people agreeing to disagree.
No amount of phony hand-wringing changes the fact that this is an objective issue. Did he or did he not break the law? I am amazed that Marcus would invoke a slavery analogy since it is possibly the most cut-and-dried legal and moral issue. It's illegal, it's unconstitutional, and it's morally wrong. Some people may choose to disagree, but here's the rub: they're wrong. In error. Incorrect. Of course we have the right to be wrong in this country. Unfortunately there are consequences to abusing the privilege, and Yoo doesn't get to avoid them by semantically turning the facts about torture – it is illegal and immoral – into an "opinion."
Yes, "some people" argue that the law permits torture by executive fiat. And some people argue that the sun revolves around the Earth. So fucking what?