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?


  • If only the answer to the question of what is fact and what is a matter of opinion were a fact and not a matter of opinion. It is the challenge of the pre-post-modernists to respond to people who are willing to question the objectivity of any claim with which they do not agree. I don't think that there is an easy answer.

    Additionally, I don't think the question of how and whether the law applies here is quite as objective as you'd like it to be. Torture is illegal, but Mr. Yoo didn't torture anybody. He didn't even plan to torture anybody. Your analogy to planning a murder is pretty tenuous – I think it's clear that Yoo is not going to be charged with anything any time soon.

    That said, *I* still think his construction of the memo should constitute clear professional misconduct, but even that's not so clear. Lawyers constantly construct plans for how they can twist the law to their own ends, and many of those lawyers are also academics. Blatant disregard for social mores, so long as they're standing the way of your goal, is just another day at the office.

    I'm not defending him or his continued appointment at Berkeley. But I see how people can.

  • I'm not really trying to answer the question of whether or not he violated the law. What is clear is that he advocated something – in a professional context – that is illegal.

    The undercurrent of the linked opinion column, liberally employed through the red herrings of academic freedom, freedom of speech, and the right to hold opinions, is that it's obviously unreasonable to punish someone on the basis of their opinions.

    I strongly disagree with that. Academics, teachers, journalists, lawyers, clergy, and other professions have responsibilities stemming from the very public and influential nature of their "opinions." And when those opinions are things like "Torture/murder/insert felony here is really OK" or "The world is flat" or "Black people are genetically inferior" then I don't see the slightest thing wrong with punishing them.

    You have the right to believe whatever the hell you want to believe in this world, but when it leaves your mouth there are consequences. There is a glaring difference between being entitled to one's opinion as an individual and expressing things that are flat-out wrong in a professional context. This isn't John Yoo, Private Citizen telling his neighbors that he thinks torture is OK. This is John Yoo, Attorney, encouraging people to violate the law under a justification that couldn't punch its way out of a wet paper bag.

  • Ed, I'm a student of yours… I found this website as I googled to learn more about George W. Bush and whether or not he was an active-positive or an active-negative president… I didn't know this was you until I read something that detailed the president and all his duties…… doooooooooties…………. Well, I had a really hard time coming up with a thesis for our research paper… but I learned a lot. I learned that politics pretty much suck. I validate your assumption that my last statement might just be an opinion. Point taken. Thanks for pointing me in the 'right' direction. Now I'm on the right track. I hope you go easy on my paper, I tried hard, learned a lot, and proudly failed to meet my own expectations. But you know what, frisbee golf is free… and If you ever want to play a round, I'll use a paper plate, and you can use my disk… Sorry to hear you didn't get hired here at IU… with your band being here.. It appears that would have kicked slight ass. Your humor reminds me of Bill Hicks… I hope you pursue a career in entertainment and comedy, you have a real gift, from the outside looking in, it appears politics are too stressful, but maybe I'm just running from life's problems by playing disc golf as much as possible, I do look at the "pink" soup cans in Krogers a little different now because of you… you make me question the world a little bit more, and for that, I gladly give you thanks for making me even more cynical… Keep up the good work, Sorry you read this.

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