It seems to me that the matter is actually fairly clear (though it is
superficially juicy enough that the media is pumping it for all it's
worth). As much as I may personally despise Yoo's legal opinions, if the
US government is unwilling to prosecute Yoo with a criminal offense,
then one can hardly expect his employer to leap into the breach in their
stead (and if they did, it would begin a very expensive legal and public
relations brouhaha from which UC Berkeley might not actually recover).
If Yoo were convicted of something, he could be fired. If he is not
convicted of anything, then there is no legal basis on which to
over-ride the protections of tenure.
The rhetorical question of "what tenure protects?" in this case is
exactly parallel to the question of "what the right to remain silent
protects?" when faced with a person who is well known to have committed
a crime, if not yet actually convicted of it. It protects everyone else
who the police might want to arrest who have done nothing illegal. And
in the case of tenure, it protects all those other people who university
boards might want to fire because they have uttered embarrassing truths,
but done nothing illegal.
Now what might make the Yoo case a little more interesting, would be if
some International (or other national) court were to convict him of War
Crimes, or such like (presumably in absentia, because he'd be a fool to
appear before them). That would make Berkeley's position a little more
uncomfortable (though I suspect, in the end, they would do nothing).
Regards,
Chris Green
York U.
Toronto
Mike Palij wrote:
In the NY Times there is a "discussion" about John C. Yoo who
is best known as the author of the "torture memos" which laid out
the legal rationale for the use of "enhanced interrogation" techniques.
Yoo, prior to joining the Bush White House, was a tenured professor
at UC-Berkeley's law school, a position he has returned to amidst
much "discussion". Several lawyers and academics, including the
current AAUP president Cary Nelson, try to review the issues
and whether the UC system should fire Yoo for his activities in
the Bush administration. See:
http://roomfordebate.blogs.nytimes.com/2009/08/20/torture-and-academic-freedom/
Yoo's siutation is apparently quite complex and whether he will be
held accountable for his activities is unclear (if the Obama Dept of
Justice was more interested in prosecuting members of the Bush
admin for alleged war crimes, this would be less uncertain).
Of direct relevance to TiPS are the following issues presented by
the lawyer/professor Brian Leiter; quoting from the NY Times:
|
|As a contractual and perhaps constitutional matter, Professor Yoo
|cannot be fired or penalized for the content of his scholarship and
|teaching, unless it involves research misconduct or intellectual dishonesty.
|A faculty member can also be disciplined by the university if convicted
|by a court of a serious criminal violation. Berkeley's regulations
|on this score are typical.
|
|Professor Yoo has defended his views about executive power in
|scholarly journals. Other scholars have defended similar views.
|Professor Yoo has not committed research misconduct. He has
|defended his views about executive power in scholarly journals,
|as well as in the memoranda he wrote as an attorney for the government.
|Other scholars have defended similar views. One may think (as I do)
|such views implausible, badly argued and morally odious, but they
|do not involve "research misconduct."
|
|If "research misconduct" or "intellectual dishonesty" were
|interpreted to cover what he has done then there would be nothing
|left of academic freedom, since every disagreement on the merits
|of a position, especially a minority position in the scholarly community,
|could be turned into a "research misconduct" charge that would lead
|to disciplinary proceedings and possible termination. (Something like
|this happened, in part, in the Ward Churchill case.)
Interesting mixture of "research misconduct", "intellectual dishonesty",
and "justifying torture". There are other considerations, particularly
legal technicalities, which are relevant but better handled by legal
scholars (e.g., see the following article, particularly pages 457-8,
http://graphics8.nytimes.com/images/blogs/roomfordebate/Clark-Torture-Memo-2005.pdf
).
-Mike Palij
New York University
m...@nyu.edu
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--
Christopher D. Green
Department of Psychology
York University
Toronto, ON M3J 1P3
chri...@yorku.ca
http://www.yorku.ca/christo
Office: 416-736-2100 ext. 66164
Fax: 416-736-5814
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