What's a liberal to do with Yoo?
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.
P.S. I really liked this comment from Alan’s earlier post on this subject:
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.
I agree with the primarily politically conservative critique that there’s no such thing as neutrality when it comes to metaphysical values, and that the liberal stance on neutrality is an act that hides the metaphysical values it promotes. However, ironically enough, that’s a fundamentally post-modern critique, or in other words no ones a foundationalist anymore.
If that’s the case, if everyone is an anti-foundationalist in our society, that how do you achieve social and political consensus? Some libertarians and small government conservatives argue for subsidarity and a return to federalism, but that merely begs the question because deciding what should be decided by the states versus the federal government is itself a metaphysical value judgment (abortion anyone?). Unless you are an anarchist, the government must make metaphysical value judgments and in a democracy that usually means mob rule. Or said another way, my metaphysical value judgments win because there are more of me, then you.
Put another way, this liberal thinks Alasdair McIntrye may have had a point.
— Joseph · Feb 22, 06:31 PM · #
I’m perfectly happy with the charge of postmodernism, though to be clear I think that MacIntyre would insist that e.g. Aristotle and Aquinas weren’t “foundationalists”, and in this he’d have a point.
— John · Feb 22, 06:39 PM · #
It is simply wonderful watching factions who only a short time ago were extolling the virtues of majority rule suddenly (re?)discovering the virtue of minority rights. Before this is all over, I fully I expect I’ll find myself arm in arm with Rick Warren, singing “Well shall overcome..”
— Tony Comstock · Feb 22, 07:50 PM · #
You people use “metaphysical” in a funny way.
— Byron the Bulb · Feb 22, 07:58 PM · #
Agreed, though there’s a rather authoritative precedent for the usage.
— John · Feb 22, 08:05 PM · #
“[John Yoo] should be made the subject of a war crimes investigation, and perhaps pelted with eggs.”
I’m going to ignore the repellent, mob rule aspects of the second part of that second sentence, and confine myself to noting that Brian Leiter has convincingly answered the first part. Who would conduct such a war crimes investigation? The University of California faculty utterly lacks the institutional competence to conduct criminal investigations. Any such investigation would clearly be a partisan witch hunt. That leaves the Justice Department. Obviously that isn’t going to happen, because the leaders of the Justice Department know that if they did such a thing, the next administration would investigate them, and the United States would be spiraling into banana republic territory.
— y81 · Feb 22, 10:20 PM · #
Not sure what one man’s egg-throwing has to do with mob rule. But I never suggested that the UC faculty should conduct any sort of criminal investigation; indeed, my whole argument is premised on the assumption that they shouldn’t. But – especially since, as you correctly note, there’s approximately zero chance that our political system will allow for the sorts of investigations that I think ought to be conducted – the idea that it’s only with a criminal verdict in place that Yoo could be fired or censured seems hugely problematic to me.
— John · Feb 22, 10:34 PM · #
Re: “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 the assumption that if they were an instance of such speech then they’d not have been a fireable offense…”
Say not “seems to grant” but rather “concludes that we do not need to reach the issue of balancing the preservation of academic freedom against the torturing of Maher Arar and company.” If we did have to balance, I don’t know where I would come down: I would still be dithering…
— Brad DeLong · Feb 22, 10:57 PM · #
Regarding only Prof. Delong’s letter (i.e., I don’t want to get into a normative debate about what should happen to Yoo), I must say he makes a weak case.
His first accusation is that Yoo failed to discuss Youngstown in his torture memo to the Administration. Youngstown was decided on a particularly fine point of law: the power of the President to seize private property in an emergency, in the absence of an enumerated or statutorily created Presidential prerogative. Other than being about the President and Article II, Youngstown’s relation to the Geneva Conventions (a non-self-activating treaty) and interrogation is tenuous at best.
Secondly (and bizarrely if Prof. is right), Yoo wasn’t tasked with writing a neutral opinion. Instead (and I quote Prof.), he was asked “to write a document to override objections to an already settled-upon course of action.” In other words, he was asked to be a lawyer, to make a good faith justification of conduct already underway (note: this would be enough to defeat a Rule 11 motion against). If true, this is a point in Yoo’s favor, not a point against him.
I’d say more but I have an existential hurdle approaching.
— JA · Feb 23, 01:59 AM · #
JA: You left a thoughtful and constructively critical comment that I think got deleted in a spam cleansing. Please repost, if you can find the time.
[EDIT: Fixed; never mind.]
— John · Feb 23, 02:48 AM · #
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.
Hmm, but the key word there is student — that means that the act comes in direct conflict with one of the core functions of the university. I don’t think it’s really a moral judgment — if the professor has an affair with some random young woman not affiliated with the university, would that still be considered a firing offense?
— kenB · Feb 23, 03:01 AM · #
At a religious institution, perhaps. But no, not at UC Berkeley, of course.
One way to put my question, though, is whether one might think that e.g. not providing legal cover for war crimes might also be thought of as “one of the core functions of the university”. If we refuse to consider this possibility, doesn’t that suggest a significant failure of imagination?
— John · Feb 23, 03:04 AM · #
“One way to put my question, though, is whether one might think that e.g. not providing legal cover for war crimes might also be thought of as “one of the core functions of the university”. If we refuse to consider this possibility, doesn’t that suggest a significant failure of imagination?”
That was my thought. Professors taking of their position of their relationships with student is sadly common, hence there are well enumerated expectations. If providing cover for war crimes was commonplace, no doubt there’d be something in the code of conduct about that too.
None the less, it seems to me that one of the things that makes this country a nice place to live is that sometimes bad things don’t happen to bad people that deserve to have bad things happen to them; 10 guilty go free rather than hang an innocent man and all that high-minded stuff. Being a believer in that sort of rubbish, I’d be inclined to have Yoo stay. Let the students and faculty shun him if they like; shame being much in vogue these days (or so I’ve read.)
OTOH, not particularly swayed by the tit for tat argument about DOJ investigation. It’s not like we haven’t seen “investigations” used as a political weapon before, and the republic survived (more or less.) I’d risk a descent into banana republicanism for an airing of the facts surrounding “harsh interrogation”; up to and including prosecutions if warranted. (And speaking of banana republics, thank god or bhuda or whoever you like to thank that the officers’ corp rebelled. Or maybe just be thankful they still teach humanities at West Point. My guess is that before I die, history will judge that as the point where we stepped back from the abyss.)
The fudging experimental results argument angle resonated. I expect that a physicist who made analogous mistakes (intentional or unintentional, and such as an analogy can be imagined) would be laughed out the business. What are Ponds and Fleishman up to these days?
— Tony Comstock · Feb 23, 03:33 AM · #
I finally read the torture memos, and, from a legal standpoint at least, the best you can say is they’re not mainstream arguments (the worst you can say is they’re hermetically sealed from the world of Otherthought — a grave disservice to his employer).
I still don’t buy into Prof. Delong’s pique, though. Yoo’s philosophy is an uncritical, lidless Hamiltonianism, sure, and profoundly uncomplicated, but I don’t think it rises to the level of professional malfeasance.
— JA · Feb 23, 03:17 PM · #
“he was asked “to write a document to override objections to an already settled-upon course of action.” In other words, he was asked to be a lawyer, to make a good faith justification of conduct already underway (note: this would be enough to defeat a Rule 11 motion against). If true, this is a point in Yoo’s favor, not a point against him.”
Not so at all. OLC’s job is not to rationalize whatever the White House’s heart desires; it would be worthless if that were so.
Rather, OLC is supposed to provide as objective an opinion as possible on whether future conduct is legal.
Contrary to popular opinion, lawyers are not simply advocates for their clients. People think that because that’s what you see lawyers doing. But a lawyer is also a counselor; he is supposed to provide his client with objective advice to help that client plan his actions.
Yoo would’ve been okay making the torture-memo arguments in court to justify past actions, but that is not the same as “here’s what we’ve decided to do, tell us if it’s legal” (let alone, “tell us THAT it’s legal”).
My best analogy is to telling your lawyer you don’t want to pay income taxes, and getting a crazy memo about how income tax is unconstitutional. That’s professionally deficient legal advice that deprives your client of the competent counsel you owe him.
— Anderson · Feb 23, 06:08 PM · #
Yoo may not be prosecuted in the States because of our disfunctional system. I doubt this will be true internationally.
— Cascadian · Feb 23, 07:37 PM · #
Well, then, we blogswarm Yoo’s academic work and root out any plagiarism or indefensible shoddiness it may contain.
— Bosch's Poodle · Feb 23, 10:34 PM · #
Interesting discussion. I share John’s lack of satisfaction with the “professional incompetence” argument. We would not usually permit a tenured professor to be fired because he gave an incompetent opinion to a private client (e.g., miscalculated a limitation period). It is the immorality of what Yoo has done (and not merely defended, but done) that is the issue.
— Pithlord · Feb 24, 12:30 AM · #
So I take it Mr. Schwenkler would have no objection if Justice Blackmun had been pelted by eggs whenever he attempted to speak in public. After all, he wrote an opinion so bad that the dean of freaking Stanford Law School described it as “not just bad Constitutional law, it isn’t even trying to be Constitutional law,” or words to that effect. And that shoddily reasoned opinion, in the views of many who are much more sophisticated moral philosophers than I, legalized the murder of millions of human beings.
Mind you, those aren’t my views. I am not particularly pro-life. But I pro-civility and anti-mob violence, which seems to separate me from most of the liberals suffering from BDS.
— y81 · Feb 24, 01:47 AM · #
But what of the conservatives suffering from it?
And would it be uncivil to suggest that, civil as you may be, you have a tendency to take things a bit more seriously than they were intended?
— John · Feb 24, 02:17 AM · #