No, I’m not especially inclined to reopen this can of worms, but looking at Brad DeLong’s latest foray into the John Yoo controversy seems to me to be a helpful way to bring into clearer relief some important aspects of the debate over liberalism that’s lately been raging in these parts and elsewhere. So here goes.
Depending on your perspective, you might think that what John Yoo did during his time in the OLC was some or all of the following: (1) gravely sinful, (2) grossly immoral, (3) criminal, (4) an instance of shoddy legal work, or (5) a serious violation of professional standards. (Of course, you might also think it was heroic, terrific, patriotic, or basically unobjectionable, but in those cases this post isn’t the post for you.) Not all of these judgments constitute, however, sufficient reasons for Yoo to be fired from his post at Boalt Hall: academia is a funny place, after all, and tenure is tricky, and we don’t just go firing people simply because they’ve said or done things we happen to find (even extremely) wrong or objectionable. And so predictably, DeLong bases his argument for Yoo’s dismissal on considerations in the vicinity of nos. 4 and – especially – 5, though he does raise the charge of criminality as well: Yoo’s arguments in the torture memos were, he says, a poor model of the sort of professional behavior that law professors are supposed to model for their students; they were not an example of the sort of honest scholarship becoming a university; there is reason to think that Yoo’s arguments were a matter of political convenience rather than a forthright expression of his own views. “Academic freedom”, writes DeLong,
… is a powerful and important principle. But I do not believe it provides a shield for weathervanes. I do not believe it shields those whose work is not the grueling intellectual labor of the scholar and the scientist but instead hackwork that is crafted to be convenient and pleasing to their political master of the day.
Now, looking closely at the situation it’s hard to believe that judgments of gross immorality aren’t a significant factor here, too; in any case, it’s hard to imagine his case garnering this kind of attention if the moral and political stakes weren’t so high. But the crucial thing to see is that from a certain perspective the issues of scholarly shoddiness and professional misconduct – and perhaps criminality, though I’d be happy to explain in the comments why I think this turns out to be much less relevant than one might think at first glance – ought to be the only ones that matter in a case like this: if you think (as is, of course, a natural thing to think if you’re in these parts) that academic freedom, and freedom of expression more generally, constitutes the supreme value in the academy, then you’re likely to insist that no mere utterance, unless it was one that amounted to something akin to a breach of contract, is itself grounds for the loss of an academic post; hence DeLong’s letter centers on the claim that Yoo’s arguments were not the sort of speech that falls under this rubric, and he
seems to grant chooses not to challenge (ed: see Prof. DeLong’s comment below – JS) the assumption that if they were an instance of such speech then they’d not have been a fireable offense.
This can, however, be a hard consequence to swallow, and it’s not a long way from there to a position like the one that Noah alluded to in response to Damon Linker, namely that while freedom is certainly a value, it’s not at all obvious that it’s the supreme one, and in any case making the argument that it ought to have such a status is going to require venturing into territory that looks suspiciously metaphysical. And it is, I think, precisely with an eye to staying out of this latter territory that so much of the criticism of arguments like DeLong’s take a primarily legalistic form, focusing on the claim that universities aren’t allowed to fire or censure people like Yoo, rather than straightforwardly arguing that they shouldn’t do so. Free speech rules, because that’s the law; just don’t ask me to say any more than that.
That’s not, of course, to say that there are no reasons why someone who thinks that Yoo’s work at OLC was criminal, sinful, or severely unethical might not still think that he shouldn’t be fired; for an argument to this effect that goes beyond the purely legalistic, see the post of Brian Leiter’s that Reihan excerpted here. And it may be that that argument, or another like it, should carry the day; to be quite frank I’m horribly conflicted about this question, and am much less confident that John Yoo should be fired than that he should be made the subject of a war crimes investigation, and perhaps pelted with eggs. But the point is just that if you think that John Yoo did what I think he did and still think that he shouldn’t be fired, then you seem to think that the University of California is a rather extraordinary place: not just a “neutral” place, but a place where the commitment to neutrality has been elevated to such a height that it calls for some sort of substantive – and dare I say metaphysical? – justification. Why isn’t it possible, one wants to know, for other sorts of values to figure in our deliberation, and to be weighed against the value of academic freedom to see which one triumphs? (All of this is made much more complicated by the fact that the alternative values on offer here are in a very important sense liberal ones; no one is proposing that professors be held to religious tests, or forced to take an oath of loyalty, but only that they not provide flimsy legal cover for moral atrocities.) Free speech, goes the thought, is a good thing, and we ought to protect it – but not in every case, and not at every cost.
To sum up: either you agree to weigh the value of freedom against other values, in which case you’re doing metaphysics; or you defend the value of freedom as absolute and inviolable, in which case you’re doing metaphysics; or you eschew such concerns and focus only on the legal questions, in which case you’re avoiding metaphysics at the expense of failing to face up to the weightiness of the issues at hand.
Having a sexual affair with a student might not be illegal, but the university can recognize it as a moral scandal and fire you for it. I wish the moral scandal of helping the USA become a nation that tortures people were equally obvious.