John Yoo and Tenure: A Guest Post by Greg Barnhisel

MANY OF THE READERS of The Weekly Rader are academics, have connections to academia or are interested in the world of academia and ideas. In fact, The Weekly Rader and indeed, the entire blogosphere, are primarily about freedom of expression. The recent calls for the termination of conservative UC-Berkeley professor John Yoo have caused an interesting rift among right and left wingers both inside and outside the academy.

Greg Barnhisel, our guest post-er, is an assistant professor at Duquesne University, where he teaches in the English Department. As a scholar of Ezra Pound and American poetry during the Cold War, he is interested in issues of free speech and academic freedom, which the Yoo case has is spades, hearts, clubs, and diamonds.

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JOHN YOO AND TENURE
A Guest Post by Greg Barnhisel

Who are these leftists and lawyers calling for Berkeley to fire John Yoo? What are they thinking? This logic appears to come from the same place as did Hillary’s vote on the Iraq war—“I’ll give them this authority, and I’m CERTAIN it’ll never come back to bite me in the ass.” To recap: John Yoo, the Justice Department functionary who wrote what have become known as the “torture memos," now has returned to his “happily” (this sneering adjective tends to accompany calls for his dismissal) tenured teaching post at Boalt Hall, Berkeley’s law school.

While working at Justice, Yoo sketched out, in what is both repugnant and faulty reasoning, an argument that the Bush administration has since used to try and immunize themselves from legal punishment for torturing prisoners. It’s the old “in a time of war, no law applies to the commander-in-chief” argument that the administration has been using since 2002, and basically Addington and others in the OVP wanted someone in Justice to provide them with an ostensibly “outside” legal opinion sanctioning what they wanted to do. Yoo, providing a model of independence that would later be taken up by Fredo Gonzalez, was pleased to serve.

I’m not a legal expert and thus I rely on the good work of those, such as Glenn Greenwald, who have pointed out that Yoo’s actual scholarship is pretty shoddy; he was acting entirely as an enabler to policies that were going to be pursued anyway. (If anyone’s a “little Eichmann” here, it’s Yoo.) I’m happy to hear that Yoo is back at Berkeley, in fact; he’ll do less damage there. Notwithstanding my disgust at Yoo’s puppy-dog enthusiasm to provide legal justification for the President’s right to crush a small boy’s testicles, I have been quite surprised by the vehement calls by many on the left for Yoo’s job.

Their argument, as I understand it, relies on two claims: 1) Yoo has the right to make whatever arguments he wants, but his legal advice has led directly to a “culture of torture” perpetuated by the Administration, and this—ideas leading to objectively repugnant acts—transcends the latitude of “academic freedom”; 2) and this is Ezra Klein of THE AMERICAN PROSPECT speaking

“tenure doesn't protect those with unpopular ideas, it just makes them harder to fire, and thus raises how unpopular an idea has to be before it merits termination. So on the one hand, firing someone with crackpot notions about tax cuts paying for themselves isn't really worth the trouble. On the other hand, if, say, Greg Mankiw called for the extermination of the Jews tomorrow, Harvard and MIT would direct their physics departments to come together and create a time machine in order to help them fire Mankiw last week. The question with Yoo isn't whether he's protected by tenure, but whether his claims are so self-evidently unconstitutional, and so morally odious, as to make firing him worth the trouble.”

I’m not sure what Klein is arguing, besides “Yoo’s ideas are REALLY awful, and this should override his guarantees of academic freedom.” Klein appears not to understand either what tenure is or the history of threats to tenure in this country. (The National Lawyers Guild have a different, and I think slightly better argument, which is that Yoo should be disbarred, which I believe would then exclude him from teaching law.) Boalt Hall Dean Christopher Edley posted a good statement on the issue, pointing out that “Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:
Types of unacceptable conduct: … 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. [Academic Personnel Manual sec. 015].” Good.

But what’s particularly disturbing to me is the scary blindness shown by any leftist who wants a tenured professor fired because of his or her beliefs. Just two years ago, David Horowitz was peddling his “Academic Bill of Rights” here in Pennsylvania, a smokescreen for ideological tests for profs (which would result in the exclusion and firing of most professors who tended to the left). The primary argument that the right makes about academia is that its faculty is out of the mainstream, that its ideas don’t reflect general societal consensus in America today, and that it is a haven of lefty ideas. Ward Churchill was a wonderful figure for them—scary, loudmouthed, insufficiently respectful of a national wound—but it is very clear that people like Horowitz would be happy to clean the leftists out of universities, using criteria based on the political views of the faculty. Use these criteria to fire Yoo, open this door, and I foresee a time when every last Marxist in every last English department at every last state university will be looking for a new job.

I graduated from two schools that ran leftist professors out during the McCarthy years, so I’m sensitive to this. And I am as furious at Yoo, and as hopeful that the Bush administration will face war-crimes charges, as anyone. But attempting to accomplish this by undermining academic freedom is a gravely misled way to show our revulsion at what Yoo helped create.