Assuming one believes as I do that Professor 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. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:
Types of unacceptable conduct: ... Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]
This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct-that is, some breach of the professional ethics applicable to a government attorney-material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?
Dear Dean Edley:
I fear I must disagree with your analysis that John Yoo's conduct does not justify his dismissal from the law school. While freedom of thought and economic security are a bedrock of academic freedom, nearly all tenured positions are held subject to certain conditions. Indeed, the 1940 Statement of the AUP (with 1970 comments) recognizes that moral turpitude is a just reason for termination.
Moral turpitude is a legal concept in the United States that refers to "conduct that is considered contrary to community standards of justice, honesty, or good morals". Moral turpitude may be fraudulent behavior, or other actions including, but not limited to:
• An attempt to commit a crime deemed to involve moral turpitude
• Aiding and abetting in the commission of a crime deemed to involve moral turpitude
• Being an accessory (before or after the fact) in the commission of a crime deemed to involve moral turpitude
• Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude where the attempted crime would not itself constitute moral turpitude.
Mr. Yoo's legal memoranda, prepared as they were to aid, abet and justify the Bush Administration's criminal and unlawful use of torture against detainees from Iraq and Afghanistan, in violation of U.S. statutes and the Geneva Conventions, fall precisely within the ambit of these definitions. Further, Mr. Yoo's specious theories of the Unitary Executive are so removed from rational thought as to be either morally bankrupt or indicators of a diseased mind. Yoo's Unitary Executive claims the King can do no Wrong.
When Charles I made the same claim, Parliament separated his head from his shoulders in 1649. The Framers were well aware of the legal history of England, as it was the progenitor of our system of laws. Having just deposed a monarch, they were surely in no hurry to enthrone another. I am told Yoo is a clever man. If that is true, it is prima facie evidence his unitary theory is fraudulent, as no one with even a nodding acquaintance with Anglo-American history would proffer such ridiculous assertions.
Yoo should be fired forthwith. He should not be permitted to further pollute future generations of lawyers. His continued employment at Berkeley is a stain upon a great institution.
