Ruth Marcus Is Full Of It

Today the Washington Post has published Why John Yoo Must Stay by Ruth Marcus. Here are the first two paragraphs:

The March 14, 2003, memo "Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" is an abhorrent document. Better known as John Yoo's torture memo, it is shoddy in its legal reasoning, outrageous in its far-reaching assertion of presidential power and repellent in its purpose -- to offer legal cover to U.S. personnel who commit torture.

Should this man be teaching constitutional law at one of the nation's top law schools? If he were being hired on the basis of that memo, certainly not. But he is already teaching at Berkeley's Boalt Hall, and he has tenure, which makes the matter far more complicated and argues, in the end, for keeping Yoo on the faculty.

Marcus then goes on to explain that the recent declassification of this document has stirred many to call for Yoo’s dismissal from Berkeley. She then proceeds to give several very weak arguments as to why she thinks Berkeley should not fire Yoo.

Let’s examine some of them one by one.

Disputes over academic freedom tend by their very nature to involve unpleasant choices. No one wants to have on the faculty, say, a literature professor who marches with Nazis, but pushing her out for that reason invites McCarthyite purges.

Does one literature professor marching with Nazis have an effect on the behavior of the President of the United States? Does one literature professor marching with Nazis have an effect on the behavior of the interrogators of any of our captured soldiers? McCarthyite purges? This is a terrible analogy. Joseph McCarthy was a United States senator who abused the considerable power that he had as a senator. He was not a president of a college considering whether he should simply fire someone or not. The matter with Yoo is about one person. McCarthy had a huge list of people and used the government and Congressional hearings to railroad people on the list to “name names.” Peoples lives and careers were destroyed for no other reason than being on this list. The people on the list were not advocating physical harm toward others, nor were they advocating the breaking of any laws. Yoo, on the other hand was advocating torture and the breaking of laws to the President of the United States. Yoo is also just one person, not the many of McCarthyism. How would a college firing someone be anything at all like McCarthyism? Marcus has her McCarthy analogy completely backwards. Yoo is not the one being persecuted here, Yoo is the persecutor. Yoo and McCarthy both worked for the government and both abused the power that they had. Both have caused other people to suffer.

Edley, as Columbia Law School professor Scott Horton wrote, "is appropriately concerned about freedom of expression for his faculty. But he should be much more concerned about the message that all of this sends to his students. Lawyers who act on the public stage can have an enormous impact on their society and the world around them. . . . Does Dean Edley really imagine that their work is subject to no principle of accountability because they are mere drones dispensing legal analysis?"

Yet the message sent to students by dumping Yoo would be even worse: that some opinions are too dangerous to express. Lawyers are used to staking a foothold on slippery slopes, but this one, with academic freedom at issue, is too treacherous to risk.

Yoo did much more than simply express an opinion! Marcus makes it sound like all Yoo did was appear on Meet The Press and say to Tim Russert, “By the way, torture is just alright with me.” Yoo advised the most powerful person on the planet that it’s OK to break the law and torture people. As far as I know no one has died because of something someone said to Tim Russert. However, untold numbers of people will die because of what Yoo told Bush. This is not about academic freedom. This is not about something Yoo did or said on a college campus. This is about what Yoo did while serving the president and our country. If Yoo had spent his entire career as a college professor, then academic freedom and tenure could be invoked.

The most useful analogy I've read on this subject comes from Princeton professor Deborah Pearlstein, who asked what Berkeley would do if a molecular biology professor "had written a medical opinion while in government employ disclaiming the truth of evolution," and continued to dispute the theory of evolution once he resumed teaching.

The most useful analogy? This is the best that Marcus can come up with? Writing a medical opinion while in government employ disclaiming the truth of cigarette smoking causing cancer would have been a better analogy. No one would die or suffer enormous psychological damage from someone writing “ a medical opinion while in government employ disclaiming the truth of evolution,” and then continuing to dispute the theory of evolution once he resumed teaching. No one would be breaking the law or disregarding the Geneva Conventions because of this.

Pearlstein, a human rights lawyer, found Yoo's memo "blatantly, embarrassingly wrong under the law," but she conceded that legal conclusions lack the hard certainty of scientific truth.

This is truly idiotic. There is no such thing as “ the hard certainty of scientific truth.” Science is not about proving “truths”, it is about disproving previous “truths.” Just ask Ptolemy and Nicolaus Copernicus.

Keeping John Yoo at Berkeley is the high price of liberty.

No it’s not! Keeping John Yoo at Berkeley is destroying liberty. The rich and powerful who commit war crimes, torture (or advocate torture) need to be held accountable to the rule of law. Civilization, democracy, and yes, liberty depend on this. Has Ruth Marcus forgotten that it is “liberty and justice for all?” Not just for a select few.