John Yoo is one of the prime--if not the prime--formulators of the blatantly inadequate and outrageous legal opinions that justified the Bush administration's use of torture.
His opinions were not just idle academic theories: They helped further the actual practice of war crimes and crimes against humanity.
Why is he still allowed to teach at Berkeley? Why hasn't or doesn't the Berkeley faculty senate or law-school senate demand his dismissal? Why haven't or aren't disbarment proceedings being brought against him?
Scott Horton today quotes an article in Vanity Fair excerpted from Philippe Sands' new expose of Bush's torture lawyers:
"Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse."
Horton then himself writes:
"They (Yoo et al) also missed the established precedent I have cited repeatedly here, namely United States v. Altstoetter, under the rule of which the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity."
Why is Berkeley providing employment to a likely war criminal? Why aren't thousands of people gathering at the Law School, demanding Yoo's ouster?
It didn’t violate the Geneva Convention. Al Qaeda is not a signatory. Therefore, Al Qaeda prisoners have no rights under it. The idea behind having “rules of war†is that they are binding on both sides and therefore, by following the rules, you protect your own captured soldiers. You can ask Daniel Pearl if Al Qaeda respects the rules of the Geneva Convention despite not being a signatory. No wait, you can’t because Khalid Sheik Mohammed cut his head off with a knife as part of a snuff film.
It was not unconstitutional. The Eighth Amendment prohibits torture as punishment, but the water boarding that was done was for interrogation purposes, not punishment. The Fifth Amendment Due Process Clause would prohibit the use of a coerced statement at a trial, but the information was instead used to disrupt ongoing Al Qaeda operations, preventing several planned terrorist attacks and saving lives.
There are certainly arguments against the use of torture by the United States but I would vehemently disagree with any kind of argument that alleges water boarding a terrorist makes us just as bad as they are.
The late William F. Buckley, Jr. used to use this analogy about moral equivalence. A man who pushes an old lady in front of a bus and a man that pushes an old lady out of the way of a bus ought not be lumped together as people that push old ladies around.
The Detainee Treatment Act of 2005 generally prohibits "cruel, inhuman, or degrading treatment or punishment" of detainees by any person. But only military interrogators are limited to the “U.S. Army Field Manual for Human Intelligence Collector Operations.†This would prohibit waterboarding. Last year Congress declined to extend this requirement to CIA interrogators.
Decry the cowardice of Congress if you like, but they have failed to make waterboarding illegal. At the very least, there is a legitimate question of interpretation. Disbarring or firing Yoo for rendering a legal opinion is ridiculous. Maybe we should consider a Constitutional amendment that protects a person’s right to hold an unpopular opinion without the threat of prosecution or the denial of a job with a state university. I am surprised someone hasn’t thought of that already.
As a lawyer, I have to say the idea of firing a law professor for a legal opinion he gave to his client--however despicable--is absurdly irrelevant to his teaching position. Leave the witch-hunting to the professionals, like David Horowitz.
I think there are two major reasons Congress has left this ambiguity. First of all, they do not want to take the political heat for either endorsing or prohibiting torture so they split the difference and leave it ambiguous. The second, is that some of them may be legitimately concerned that a situation may arise where waterboarding is necessary.
In 2004, Democratic Senator Chuck Schumer said:
“I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day.â€
Just as an aside to the other lawyers here, can you imagine if briefs were limited to 250 words? Imagine the lost billing…
You may find something morally repugnant, but that in and of itself does make it illegal.
Reason 2: Opinions are not sufficient reason to remove a faculty member. In this way I look at Yoo's situation as comparable to Angela Davis' in the late 60s/early 70s.