John Yoo and Academic Freedom

Interesting debate over at the NY Times about whether John Yoo should be fired from his post at Berkeley for his memos giving the Bush administration legal cover for torture. Two of the commentators they solicited think he should be fired, the other three are against it.

I side with the minority on this one, believing that he should be fired, though agreeing with them that the prudent course of action would be to conduct an official inquiry and only fire him if the inquiry concludes that professional misconduct had been committed.

In fact, this is the type of system I see as a much better alternative to tenure: colleges being able to fire faculty, but only after after official inquiry. This would make it difficult to fire professors for controversial ideas, but would open the door to firing them for incompetence or for grave ethics violations.

In Yoo's case, the issue is not about incompetence, but about doing something unethical. For those who think Yoo should be fired, this issue really isn't that he holds the wrong opinion, but that his actions represent professional misconduct. We expect doctors to uphold standards of conduct when lives are on the line (though quite excessively sometimes). Shouldn't lawyers be held accountable for malpractice when lives are on the line?

Insofar as Yoo is supposed to provide legal counsel, he must interpret the law to the best of his judgment, and there will be a lot of disagreement on interpretations. But that's not the problem. As Brad Wendel (who thinks Yoo shouldn't be fired) summarizes:

The memos purporting to justify the harsh treatment of detainees could do so only by twisting the law beyond all recognition, and doing so in secret so that the flawed legal advice would not be challenged. When the memos were disclosed publicly, virtually no one could be found to defend them on the merits.

Yoo is not simply offering opinion, he is offering legal cover, and in a cagey way. If he had published such opinions in a scholarly journal, people might disagree with him adamantly, but there wouldn't be serious consideration of firing him. Even if Bush and his administration co-opted published articles to give them legal cover, the weight of moral responsibility would lie with the Bush administration, not the articles' author.

An inquiry into Yoo's conduct would not have the effect of inhibiting scholars' ability to express controversial opinions openly, though it would, one would hope, discourage them from giving legal cover to actions of a dubious moral standing.