Yoo’s Presence and the Faculty’s Silence

Berkeley Daily Planet, Tuesday April 15, 2008

The recent disclosure of a memo by Boalt Law School faculty member John Yoo has given that school and the University of California itself a long overdue public relations nightmare. “Overdue” because quite enough was known about Yoo’s role in justifying the Bush regime’s claims to the dictatorial powers it has taken that a small group of concerned citizens held a weekly vigil outside his class several years ago. That vigil was almost entirely ignored by faculty and students too hurried or plugged in to their iPods to pause or take a leaflet let alone join. When Fernando Botero’s horrific paintings of torture came to Doe Library, few faculty members on panels organized to discuss them mentioned that the man largely responsible for the atrocities Botero depicted is a campus colleague. But when the New York Times published an editorial (reprinted in the International Herald Tribune on April 5) with the clause “Yoo, who inexplicably teaches law at the University of California,” mud finally stuck to Alma Mater’s teflon robes, and the administration had to act.

Boalt Dean Christopher Edley, Jr. wrote a position paper posted prominently on the University’s home page that I consider a masterpiece of judicious temporizing, concluding that “Absent [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] no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.”

I am no expert on the Nuremberg Tribunals and the international criminal laws formulated to ensure that atrocities perpetrated by the Nazis and Japanese would never happen again, but surely there must be someone on the besmirched Boalt Hall faculty or one of its sister institutions who could pass such judgment. That Professor Yoo has not yet been convicted of criminal acts is no reason to remain silent on the possibility of his having done so. Academic freedom cuts both ways: faculty bloggers may debate among themselves what should be done about their infamous colleague, but they have been impressively discrete about publicly criticizing him until the latest memo and a clause in the New York Times forced the point.

That succinct clause bears more consideration than Dean Edley’s voluminous rationale for letting sleeping dogs lie: why is a person whose legal opinions have subverted the U.S. Constitution teaching constitutional law at the University of California? Do his colleagues share culpability? In her April 11 editorial, Becky O’Malley asks the kind of question that Edley and other faculty need to answer: “who saddled their institution with this infamous character in the first place?” Furthermore, how did he get tenure? Is a university with such a professor “worthy of distinction?”

I understand the reluctance of faculty to wake the mastiff of the California Loyalty Oath once used by reactionaries to maul liberals, but John Yoo presumably signed it to obtain his job. The signers of that oath vow to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.” Such enemies include those in the executive branch, including themselves. To recommend or teach the Constitution’s subversion in the name of a “unitary executive” violates that oath.


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