My grandfather stopped working as a defense attorney when he realized he could not provide adequate defense for people he knew were guilty. The bastards, he deeply believed, deserved the best defense possible but he felt unable to provide it. Today, I sympathize with him, for I am going to try to defend another bastard. And I don’t like it. Still, I do understand, as my grandfather did (and as this bastard does not) that the rule of law and the concept of an honorable defense (and prosecution) are bedrock to our legal system.
The bastard in question is John Yoo, professor at the University of California’s Boalt Hall School of Law and former official in Bush’s Justice Department. It was Yoo who wrote infamous memos advocating torture and claiming the Geneva Conventions concerning prisoners of war and non-combatants in war situations did not restrain the United States. It was Yoo, in other words, who claimed that the protection of law only covered those the prosecutors wanted covered.
Now, the tables have turned: there are those, including the American Freedom Campaign, who want to exclude Yoo from protection.
Though I loathe Yoo, and believe his attitude is directly counter to the interests of the American system of governance, I cannot see that as justification for abandoning another system of protection—academic freedom—in order to punish Yoo. Frankly, I cannot see how anyone who believes in “freedom” can argue for denying someone freedom because he (or she) argued for denying someone freedom.
Yet that is what the American Freedom Campaign is doing:
John Yoo should not only be disqualified from ever serving in government again, but he should also be prohibited from spreading his distorted view of the law and the role of lawyers to young law students.
He must be fired.
Yet Yoo has been charged with no crime, academic or otherwise. Firing him would be a direct slap at the American right to hold an unpopular view without consequence (the First Amendment, of course) and it would also be in direct contravention to the Academic Freedom compact between universities and their faculties that is at the heart of the success of our institutes of higher education.
Some disagree. Writing in Inside Higher Ed, Scott Jaschik mentions:
Timothy Burke, an associate professor of history at Swarthmore College, [who compares] Yoo to Ward Churchill. Writes Burke: “So riddle me this: why isn’t John Yoo just as big a hack when it comes to constitutional law as Ward Churchill was when it came to Native American history? This isn’t about simple disagreement with the substance of his arguments in the ‘torture memos.’ It’s about Yoo making claims (claims with consequences far greater than what normally follows from scholarship, even legal scholarship) that are just factually wrong or are screamingly disingenuous. Whatever the standards might be for employment at the Justice Department (a different issue), shouldn’t this kind of approach to knowledge and scholarship disqualify someone for an academic post?”
As one who refused to defend Churchill, but does defend Yoo, let me answer: First, Yoo is fully qualified for his position in ways that Churchill was not for his. Second, Yoo did not warp the system of reference in academic publications to his own favor as Churchill appears to have done by publishing articles under different names. Third, the “facts” in any argument Yoo makes are there to be found, while those Churchill claims are sometimes obscured. Though I hate to call anyone a charlatan, Churchill comes close. Yoo, no matter how much one may disagree with him, does not.
What I see going on now reminds me of lines from Bob Dylan’s old “My Back Pages”:
In a soldier's stance, I aimed my hand
At the mongrel dogs who teach
Fearing not that I'd become my enemy
In the instant that I preach
If we are going to defend freedom, we need to defend it for everyone, or we become the enemies of freedom, be it freedom of speech or academic freedom. We need to defend it even for Ward Churchill and John Yoo. What was indefensible in Churchill’s case was dishonesty, not his freedom of expression. No one is accusing Yoo of anything like that (though Burke mentions ‘factual errors’ and even ‘disingenuous arguments,’ he does not show that they rise to that level).
By trying to equate the cases of Churchill and Yoo, Burke conflates different freedoms as well as different cases. Churchill may have been brought into the limelight through protected speech, but he was fired for other reasons completely (though they may never have come to light, had he not so annoyed people on the political right). Yoo, too, stepped into the spotlight because of statements with political edge. He has not (as far as anyone has shown), however, contravened his responsibilities under academic freedom.
Burke’s attempt to move the argument from freedom of expression to academic freedom (and responsibility) notwithstanding, there is little reason to move discussion of Yoo from the rights of freedom of expression (in this instance) to the rights of academic freedom. Doing so only muddies the distinctions between the two, distinctions that have become a little too hazy already.
Though Yoo’s ideas are a threat to what I believe is the foundation of the United States, his is a threat through ideas—and he needs to be fought by using ideas, not by attacking the man. Boalt Hall students will learn more if he remains, and if his ideas are countered by concerned students and faculty, than if he goes. When the bankruptcy of ideas is exposed, learning is much more possible than when a person is simply removed.