Opinion: Berkeley law dean (kind of) defends John Yoo


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What do you do when a guy high in the running for most hated man in the world teaches at your law school? If you’re Christopher Edley Jr., dean of UC Berkeley’s Boalt Hall law school, you half-heartedly defend the professor while highlighting your powerlessness to do anything -- as he did last week did for his embattled faculty member John C. Yoo.

Yoo, of course, is the Berkeley law professor best known as the former Bush administration lawyer who authored the infamous ‘torture memo’ of 2003. Besides laying out a legal argument he thought could protect practitioners of almost certainly illegal ‘enhanced interrogation’ methods from prosecution, Yoo exhibited in his writings a stunning disregard for international law and a creepy nonchalance about expanding the president’s terrorism-fighting authority. That much Edley denounces, just as the administration did when the public got wind of the memo. Edley’s criticism of Yoo’s work in the Bush administration isn’t surprising.


More intriguing is how Edley approaches the question he set out to answer: Why is Yoo a professor at such a prestigious university when his legal advice to the most powerful man in the world has come under such resounding criticism by his colleagues? This is where Edley’s insight sheds some light on the machinations of the great academy; ready why after the jump.

Edley comes closest to defending Yoo’s work in the following exceprt, in which the Berkeley dean effectively separates a lawyer’s legal analysis from its practical application:

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.

This is the closest Edley comes to actually mentioning what consequences may have arisen from Yoo’s legal advice. Indeed, when read with the rest of the statement, this excerpt makes clear that Edley (and surely other lawyers and academics) approaches the question over Yoo as a matter of scholarly disagreement, not one that may have led to bad policy and injury to an unknown number of detainees.

Then there’s this little nugget that sheds light on how bullet-proof a professor’s job is after receiving tenure:

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?


So Yoo would have to commit a crime to be fired as University of California professor? No offense to Yoo or anything (and I’m not one to call for his dismissal), but such a fine-print defense by my boss wouldn’t inspire a whole lot of self-confidence.