In April 2008 I was returning to my hotel room across the street from the Berkeley campus. The sidewalk was filled with chanting protestors, and a dozen or so people dressed in orange jump suits were writhing on the ground to simulate torture victims at Guantanamo. In the hotel ballroom Berkeley law professor John Yoo was speaking to an audience admitted on the basis of an approved list monitored by campus police. The protestors were demanding that the dean of the Boalt Hall School of Law fire Yoo immediately because of his alleged participation in war crimes. I introduced myself (to the protestors who were standing) as president of the American Association of University Professors and explained to them that Yoo had to receive due process, that the dean could not act unilaterally. They were happy to adjust their demands and argue instead that appropriate hearings commence immediately.
I spent a half hour or so discussing the case, and then approached the police to gain entrance. I was not on their list, but they confirmed I was a hotel guest. Yoo had left, but there was a reception for those who had attended the event. I spoke with several groups of faculty and with Berkeley law students both sympathetic and not. Some students vowed they would never take a course with him. Others were mightily offended that his presentation (a response to an earlier speaker) had twice been interrupted by protestors who were then escorted out. When they characterized that as a heckler's veto, I suggested that an interruption of a speech that was allowed to continue was not quite a veto; at that point the conservative students refused to speak to me any longer.
The complex character of the Yoo case has made it exceptionally controversial on campus, but some clarity is possible. A tenured faculty member cannot be dismissed for his political views. One also hears the argument that Yoo has to be held harmless for extramural statements, statements made, moreover, when he was on leave working for the Bush administration. But extramural statements that bear on a faculty member's areas of professional competence are subject to review. If you write an article for a newspaper that shows you are ignorant about your academic field you are vulnerable, tenured or not. Of course in Yoo's case the arguments in his memos justifying torture, intellectually irresponsible or not, are not the entire issue. It is their purpose, their use, and their effect that may put him at risk. Thus people have argued that the brutal impact of his memos on the lives of real people bear on his moral authority as a faculty member. His advocacy activities on behalf of the Bush administration, his participation in potential war crimes, are an affront to human decency. Yet had Yoo published his views in scholarly essays and a time when no U.S. sponsored torture was taking place, his legal opinions might have been seen as more absurd than sinister. Yoo's case is thus inescapably moral and political.
One thing we can dismiss, despite the U. S. legal system's fascination with evidence of intent and regret, is any effort to base an academic decision on Yoo's intentions at the time he wrote the memos, though he has certainly not apologized for or contradicted the positions he took. Indeed his book War by Other Means reinforces his stance on unfettered executive power. Some have argued that Yoo was simply cynically serving his masters in what he wrote. Others insist he believed everything he said. I believe we will never know for certain what was in his heart at the time. Nor do I assume he knows. The issue has to be decided on the nature of the memos and their impact.
Such considerations are clearly fair when deciding whether or not to hire a faculty member in the first place. You have a right not to hire someone whose views you consider reprehensible, though the bar must be very high. One might thus choose not to invite an avowed Ku Klux Klan member, a Holocaust denier, or an advocate of state torture into your departmental community. As a tenured faculty member, Yoo, however, has a right to full due process. Under AAUP standards, the dean should call for the faculty to elect an informal committee to recommend whether there is sufficient basis to hold formal hearings. If the informal committee decides affirmatively, then the dean can call for the election of a formal hearing committee, unless a standing hearing committee already exists.
Such a process would concentrate on determining professional competence. Academic freedom does not protect a law professor from, say, clear evidence that he or she does not understand the law. Yoo's memos were applications of his professional authority and expertise. They will be debated in legal circles for years. One might suppose he will never again write something with such wide impact. What is so challenging about Yoo's case is that it raises new-and potentially dangerous-grounds for determining what activities and contexts bear on defining and establishing professional fitness.
The model for an academic review would be to cabin off political considerations and just analyze and evaluate the memos themselves. Do they, in other words, so badly represent legal history and logic as to render Yoo incompetent to teach major areas of the law? The problem with the purportedly disinterested character of such a procedure is that it would nonetheless have been triggered by the international political reaction to the Bush administration's policies and practices. The academic review would be in the domain of politics by other means. It would be situated on Ward Churchill territory.
Thus some respond by requiring a legal, rather than political, external trigger: indictment and conviction by a U. S. or world court, or at least a case review by the U. S. Attorney General, but of course none of those developments would be apolitical either. One obvious concern for an academic review would be confidence about whether the panel had all the facts. Certainly when I happened into that rally in 2008 it was clear there might be further disclosures. That has since happened, courtesy of the Democratic political victory in 2008, and we have no way of knowing even now whether all the relevant Bush administration documents have been made public. In the end some will decide that it is necessary to protect Yoo's job even if he is despicable, that too much is at risk for the academy's future if his tenure removal is politically compromised.
1. I should emphasize that this is my personal opinion, not AAUP policy. Nor should it be institutional policy. I am merely addressing the realities of individual decision-making in hiring votes, which are often highly subjective. But I am opposed to treating political or religious views as reprehensible even then. I also believe tenure decisions must be based exclusively on the written file and must be far more objective.
Cary Nelson is a professor of English at the University of Illinois-Urbana and national President of the American Association of University Professors. This commentary originally appeared in the AAUP online member newsletter, and a shorter version was published in THE NEW YORK TIMES.