Friday, December 05, 2008

Why Won't UC Berkeley Investigate John Yoo?

The National Lawyers Guild San Francisco Bay Area Chapter, the organization I work for, has asked the University of California to "initiate an investigation into whether Professor Yoo’s 'outside professional conduct,' as an attorney of the U.S. Justice Department’s Office of Legal Counsel, violated the Faculty Code of Conduct as set out in the University of California Academic Personnel Manual (Section 015)." The University, through a statement written by Law School Dean Edley, a letter written by Chancellor Birgeneau, and a statement by a University spokesperson, has refused to do so misstating University regulations and the need for a criminal conviction (and possibly even jail time) before they can move forward with any sort of disciplinary action. Such a policy would be illogical; which is probably why it really is not the policy at all.

As our letter to the University points out, the UC Academic Personnel Manual’s Faculty Code of Conduct "specifically identifies outside professional conduct that can lead to formal investigation. While it includes violations of the law resulting in convictions, the list of unacceptable faculty conduct it enumerates is specifically noted as 'not exhaustive.'" So there is no need to wait for a criminal conviction before the University takes action.

It would be bad policy for a University to have to wait for a conviction, particularly when the bad acts are as serious as those committed by Yoo. What if President Bush were to issue a preemptive pardon to Yoo and others for any wrongdoing associated with interrogation policies during his administration? The University ought to be able to investigate wrongdoing even if a conviction is blocked by a President.

Try a simpler example: what if a professor were cleared in a criminal court but found culpable in a civil court and ordered to pay millions to his victims? A University should not have to ignore a civil court ruling simply because the professor was not "convicted of a crime and sent to jail."

On the other hand, if it were true that a conviction and perhaps even jail time were necessary precursors to any sort of academic investigation, then relatively minor acts, such as possession of marijuana, would be sufficient to trigger an investigation as long as there was a conviction, even as war criminals remain safe. Even worse, a professor arrested for nonviolent, civil disobedience, such as blocking the gates at San Quentin to oppose the death penalty, would be fair game for the University administration.

There may be another reason to defer to a court of law, whether civil or criminal, before taking action against a professor. Courts are better suited to gather evidence, present both sides, subpoena witnesses, and utilize other tools that a University does not have. A former professor of mine at the University of Texas School of Law, Brian Leiter, made an argument like this on a radio debate with a colleague of mine, Attorney Sharon Adams. The argument may apply in certain circumstances, such as if a lone accuser were to approach administrators with a claim about a faculty member believed to be the perpetrator in a hit-and-run. Such a charge should probably be tested in a court of law before University officials begin to hire private investigators and collect photos of the crime scene. But in this instance there is a growing body of evidence in the public domain - from the actual memoranda Yoo authored, to his Congressional testimony.

While the investigation and hearing may still not be as thorough as one in a court of law, the potential consequences are far less. Hundreds of thousands of people are in prisons in the United States for actions that did not cause nearly the level of harm that John Yoo and his co-conspirators caused. I have no doubt that many of those in prison are completely innocent. As thorough and fair as our courts ought to be, they remain incredibly flawed and unfair, particularly to poor people and people of color. But in theory, the more serious the consequences, the more safeguards are provided and the more tools are given to courts. Simply disciplining a professor who, as ample evidence demonstrates, provided legal cover for some of the worst crimes of the Bush administration, ought to involve a certain level of due process, but all of the tools of the criminal or even civil courts are not necessary.

There is more of a need for Yoo's employer to take action since it does not appear that any action is going to be taken to hold the architects of torture from the Bush administration accountable at the federal level, at least not without significant pressure from below. While the Obama administration may make some positive changes in policy, there are indications they do not want to use the Justice Department to prosecute. Unfortunately, policy changes can be changed again under future administrations, and unless the individuals who broke the law and committed these bad acts are brought to justice there is little to deter future administrations from re-adopting torture as acceptable practice.

There are other bodies that can take action to begin to build pressure from below and hold people like Yoo accountable. The City of Berkeley will consider on Monday whether it should pass a resolution that, among other things, would officially support our letter to the Chancellor calling for an investigation of Yoo. The University shouldn't require all this pressure; UC officials have a duty to investigate and discipline Professor Yoo and the notion that their hands are tied is at best a misinterpretation of policy and at worst a lie.

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