2004 Boalt Hall grad Mike Anderson defends the anti-Yoo petition on his blog, Mere Dicta. (See my prior post here.) While Anderson claims his petition does not challenge academic freedom, I don’t buy it. According to Mr. Anderson and his fellow petitioners, because Professor Yoo, on behalf of a client (the United States), adopted a legal position he had adopted as an academic, he should be forced to repudiate this position or resign.
Academic freedom protects viewpoints; it does not amount to immunity for immoral or illegal actions. If a professor commits a crime or behaves in a morally reprehensible way, the community has the right to demand accountability. If, as we believe, Prof. Yoo’s actions amount to aiding and abetting war crimes, that absolutely demands accountability.
Note, however, that the infamous 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. Nonetheless, the petitioners accuse Yoo of “aiding and abetting” the commission of War Crimes! USD’s Tom Smith asks “If the law were clear that illegal combatants, say, are out of luck when it comes to conditions of confinement, for example, then [wasn’t] it the job of Yoo to advise his client of that?” Apparently not, according to the petition.
Interestingly enough, in today’s WSJ, Defense Undersecretary Douglas Feith claims that Geneva Convention protection (though not POW status) was extended to Taliban and Al Qaeda detainees, as clearly required by law, as well as to detainees in Iraq. According to Feith:
[In February 2002, President Bush determined] that the Conventions apply by law (and not just by policy) to our conflict with the Taliban regime. But Taliban detainees are entitled only to basic humane treatment, for the Taliban failed to meet the Convention’s conditions for POW status — e.g., wearing uniforms and complying with the laws of war. The Conventions do not apply to the conflict with al Qaeda. But al Qaeda detainees are entitled anyway to the same basic humane treatment, consistent with the Conventions’ principles.
As to Iraq, the U.S. government has recognized from the outset that the Geneva Conventions apply by law and all Iraqi detainees are covered by them. All Iraqi military detainees have had POW status. As we all know from the horrible photos, some detainees in Iraq have been abused, but that mistreatment violated the Defense Department’s policy as promulgated by the secretary.
(Link for subscribers only.)
At bottom, the anti-Yoo petition argues that to advance a legal opinion that may dire negative effects should disqualify an individual from serving as a law professor. (Alan Dershowitz, call your attorney!) In my opinion, the idea that this petition represents neither an attack on academic freedom, nor the ability of lawyers to take unpopular positions on behalf of unpopular clients, is absurd. Apparently others disagree.
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