Berkeley Law Dean: Yoo Was Not The Decider

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John Yoo is a professor of law at the University of California-Berkeley School of Law. He’s never been a particularly popular faculty member there, but the recent release of his March, 2003 Justice Department memo, in which he advised that military interrogators could torture detainees as long as their only motivation wasn’t sadism, has made him considerably less popular. Earlier this week, the National Lawyers Guild called for Berkeley to fire Yoo.

In a statement posted on the school’s website today, the school’s dean Christopher Edley, Jr. offers a statement “as dean, but speaking only for myself” for why he does not think that Yoo should be fired.

His argument largely comes down to this:

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.

Because of “the complex, ineffable boundary between policymaking and law-declaring,” Edley writes, too many questions remain to pass judgment on Yoo beyond finding his legal reasoning flawed:

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.