TCS Daily


What Academic Freedom?

By Pejman Yousefzadeh - June 16, 2004 12:00 AM

Do you know who John Yoo is? Click here and you will find that Yoo is a well-respected legal scholar with a rich professional background. He has worked in a number of high-profile legal positions in the Justice Department and the United States Senate, where he dealt with constitutional law issues as well as legal questions affecting national security and foreign policy. He has clerked for Supreme Court Justice Clarence Thomas, and other high-profile federal judges. Currently as his website points out, Yoo is a law professor at the Boalt Hall School of Law at the University of California, Berkeley. His intellect and experience should make him a prized member of academia.

But Yoo is facing a petition organized by law students at Berkeley demanding that he be forced to resign his teaching position unless he renounces positions he took while a lawyer at the Justice Department. Yoo wrote a memo discussing the scope of the protections of the Geneva Conventions, concluding that those protections did not apply to Taliban and al Qaeda members. According to petition signatories, the conclusions reached in his memo "created a climate of disdain and hostility towards international law."

These charges just don't square with the facts. As pseudonymous legal blogger Juan Non-Volokh points out, Yoo's memo

"did not advocate torture; it did not even advocate forgoing Geneva Convention protections for Al Qaeda and Taliban detainees. To the contrary, it explicitly took no position on the matter and made clear that the President could, pursuant to his authority as commander-in-chief could impose the Geneva Convention's requirements on military personnel. It was a legal memorandum written on behalf of a client, not a policy recommendation."

For lawyers, an interoffice memo -- such as Yoo's -- is not meant to advocate a particular argument. Advocacy comes only in briefs or memos of points and authority that are presented to a court. The writer of a brief or a memo of points and authorities will take a certain side, and will zealously argue it in an effort to persuade the reader (the judge) of the rightness of the position taken in the brief or memo.

Interoffice memos, on the other hand, are designed to explore and give both sides of an issue. Any conclusions will be tentative so as to allow readers of the memo the maximum possible flexibility to question or disagree with the conclusions of the memo. Even if the lawyer does not like what he/she finds in the course of researching an issue, even if the findings are not favorable for the lawyer's client, the lawyer's duty is to fairly and accurately report the law in the memo.

In writing his memo, Yoo did not editorialize on what the law should be. Instead, he found out what the law is on the issue of the Geneva Convention's applicability. His conclusions may be debatable -- it should surprise no one that legal issues become the subject of fierce debate -- but that does not mean that Yoo's findings should be renounced or that he should be dismissed from his teaching position.

It is more than a little shocking that some Berkeley law students don't seem to understand the function of a legal research memo. They will likely be called on to draft many such memos -- some of which may lead to unpalatable conclusions. Again, the drafters of those memos may very well have compelling public policy reasons for what the law should say on a given issue. But that doesn't mean that they can shoehorn their research and their findings to fit their own preconceived notions.

Finding that the rules of warfare don't apply to Taliban and al Qaeda fighters is hardly controversial. Those who examine the evolution of international law will find that fighters who employ the tactics and procedures employed by the Taliban and al Qaeda are traditionally treated with less deference and respect than are members of a national conventional army. The Lieber Code and the Laws of War tells us that "Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark or distinction of their own, can expect no quarter." General Order No. 82 is especially specific:

"Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers--such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

As terrorists, the al Qaeda or Taliban fighters seek "destruction or plunder," "without commission" (even non-commissioned officers have the possibility to gain a commission), and "without being part and portion of the organized hostile army." They do not change their character and appearance, and they share continuously in the war. Thus, international rules governing warfare, provide less protection to such fighters than they do to soldiers of a conventional army. The rules are structured this way because we want to encourage fighters in a war to observe the protocols and regulations necessary to prevent "destruction or plunder." We want to make it easy to differentiate between fighters and non-combatants to prevent mistaken attacks on non-combatants. We don't want soldiers to behave like "highway robbers or pirates."

The signatories against Yoo claim that they do not want to impinge on academic freedom, but it is hard to see how academic freedom can survive this kind of frivolous attack. The signatories believe there is only one right answer to knotty legal problems such as the ones Yoo addressed, and that anyone who takes up a contrary position in good faith should not only be disagreed with, but should have his/her career threatened. A healthy academic environment depends on the ability to engage in robust debate regarding the issues of the day. To demand that Yoo either renounce research findings that he uncovered in fulfilling his professional obligations or face dismissal from the faculty at the Boalt Hall School of Law is to dramatically undercut academic freedom.

The petition against John Yoo should concern us. Future lawyers are being led to believe that legal arguments with which they do not agree can be undercut via intimidation. Academicians are being deterred from robust debate and the expression of their honest opinions. And instead of engaging one another in passionate and respectful debate, we are moving towards an intellectual regime where the proponents of certain ideas will brook no argument against their positions. John Yoo is only the latest person to experience this kind of intolerance. It is chilling to think how much further it will go, and who will be next.

The author is a lawyer and frequent TCS contributor.


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