What To Do With Yoo


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We like to think academia's ivory tower stands above the pettiness of mainstream politics, the baseness of ordinary watercooler debate, and the vulgarity of personal vendettas. We like to think that free speech, as a constitutional right, is more protected on Berkeley's campus than anywhere else in the world.

But the dilemma of what to do with two academics-one on either side of the ideological spectrum-who have outraged many with their opinions forces us to examine exactly how far free speech can go, even at a university.

Ward Churchill, an ethnic studies professor at the University of Colorado, made headlines when he wrote in a 2001 essay that "little Eichmanns" who worked in the World Trade Center were responsible for provoking the terrorists' attack on 9/11. Churchill quickly became a target (never mind that it was 2005 before anyone had noticed what he wrote), and he lost his job after being charged with plagiarizing part of his research. Earlier this month, a jury found that he had been unfairly dismissed, and he got his job back.

Here at Berkeley we have our own Churchill, but he couldn't be more different. John Yoo, a professor at Boalt Hall School of Law and former attorney at the Department of Justice, is one of the authors of the so-called "torture memos" that legalized tactics like waterboarding used by the Bush administration against terrorism suspects. Many faculty members and students at Berkeley consider his actions criminal and more than enough reason for him to be fired. But Christopher Edley, dean of Boalt Hall, has stood by Yoo, writing last year that though 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."

A Spanish judge is currently considering whether war crimes charges should be brought against Yoo and five other American legal advisers. In even more bad news for Yoo, there is building momentum to get him disbarred, though even that would not mean an immediate dismissal. So what do we do with Yoo now?

The key distinction between Churchill and Yoo is the consequences of their words. Churchill's words had no real impact, except to create red meat for right-wing radio hosts and stir up debate about 9/11. Yoo's words led others to carry out orders that were probably illegal under the Geneva Conventions and which President Obama has condemned as morally contemptible. I disagree with Edley-I think Yoo did more than "offer bad ideas and even worse advice." He knew his words could be used to hurt people, he just thought the hurt was justified. If that's not criminal, what is?

But the core question we must ask is whether people like Churchill and Yoo are being unfairly singled out because of the attention given to 9/11 and the war in Iraq. Would Churchill have been targeted for plagiarism if he hadn't been talking about 9/11? Definitely not. He deserves his job back. Would Yoo's writings from a former job be scrutinized if they had been about child labor conditions in third-world countries instead of terrorist suspect interrogation tactics? Definitely not. He deserves to keep his job, at least until he is charged with a criminal act.

Those calling for Yoo's head should ask themselves this: Should all professors' products from former jobs be scrutinized to see what kind of harm was caused as a result of their legal opinions or research analyses? Most people would say no, but Yoo deserves special attention because he did something so much more damaging than the actions of anybody else on campus. Hmm, do we know that for sure? Are the real criminals those who wrote the memos or the ones at the highest levels of government (I'm thinking of you, Dick and Don), who put their stamps of approval on them? In my opinion, they are all guilty, but either you prosecute everyone on that chain of barbarity, or no one.

Justice is not about collective outrage deciding what is and isn't a crime. Yoo is an indicted criminal only when the Attorney General says he is (and the AG is considering just that as you read this), and not a moment before. Even Obama has opted out of saying whether Yoo's actions were criminal or not.

No matter what you think of Yoo, everybody should agree that we do not want mob mentality directing prosecution. If Berkeley stands for the freedom to say what you want in a tolerant setting, then selective justice meted out to those we most disagree with is a direct violation of that principle.

Find out why Yoo ain't all that at [email protected]

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