Dershowitz needs a refresher course on what McCarthyism was...

Apparently acclaimed attorney Alan Dershowitz does not correctly recall what McCarthyism was.

The esteemed trial lawyer and Harvard professor says the following in defense of John Yoo, of all people:

UC Berkeley leaders are wrestling with that decision as a federal investigation into John Yoo's legal advice to the Bush Administration apparently winds down. The dilemma is rare. At risk are the tenets of academic freedom that have long allowed college faculty members to speak their minds in the name of scholarship. Yoo's case revolves around his advice on dealing with accused terrorists,including a notorious memo that provides legal justification for torture. Yoo, who is temporarily teaching at Orange County's Chapman University, has long attracted protests on his home campus, but some surprising allies have come to his defense.

"I think this is simply a left-wing version of McCarthyism," said Alan Dershowitz, a Harvard Law School professor who disagrees strongly with Yoo's views on torture. "He should be judged solely on the merits of his academics."

But Berkeley administrators and faculty leaders said they would be concerned about Yoo teaching law students if he were found to have violated ethical or legal standards. Critics have called Yoo a yes-man for President George W. Bush, essentially telling him what he wanted to
hear.

Dershowitz does not disagree strongly with Yoo on torture as some of you will recall. But that is beside the point. Yoo was hired to teach law. If he has broken the law or broken with ethical standards, then how does that qualify him to teach the topic to law students? But I do remember this argument well, as it has been used before and for the same reasons.

During the Nuremberg trials, lawyers were held accountable for providing legal cover for the illegal and immoral. Mr. Dershowitz might want to visit the Harvard Nuremberg collection in his free time.

Breaking the law or knowingly misrepresenting the law so that your boss can engage in criminal activity does not compare in the slightest to the activities of Sen. Joe McCarthy's political targets. The late Senator hunted people who broke no law and engaged in no illegal conduct. He hunted them for their political views as the sole criteria and destroyed many lives in the process.

Now anyone who reads me knows that I am a fierce anti-Communist. But as fiercely as I am against the old Soviet system, I am that much passionately for the Bill of Rights. McCarthy was not hunting Soviet moles. He was hunting liberals and intellectuals, making him a more appropriate politician for Il Duce's version of a republic rather than our own.

What Yoo happens to have in common with the victims of McCarthy is that he happens to be considered an intellectual, but that is where the comparison ends. Unlike McCarthy's victims, Yoo did not simply lecture on a topic unpopular with a certain political point of view. He did not only assign homework to his students that was somehow seen as un-American. He did not have a few meetings with people of like mind who were seen as undesirables by certain politicians.

Had Yoo conducted simply those activities and even if he did so while practicing Satanism and being an open racist, he would still be fully within his rights as an American citizen no matter how much I disagreed with him. Freedom of speech is most important when it protects those with whom you disagree, because that ensures that your to express your point of view will also be protected. Yoo could have even slaughtered chickens in class as part of his lecture and still made a reasonable argument that he was well within his rights academically.

What Yoo is accused of doing, however, is actually acting to assist others in law-breaking by perverting and twisting the law for his own ambitions. Yoo gave Bush officials a green light legally - knowing this was illegal of course - to break the law on something as basic as human rights, on the right of an accused to a fair trial, on the rights of all not to be refused legal assistance at the whim of a single man drunk on power and acting as the sole ruler of a republic.

He denied the basic legal protections to many and determined that he was able to rule that a single man - the President - has all the authority of a dictator, regardless of the law, regardless of the international treatise to which we are signatories, regardless of all ethical and moral questions. He ruled something illegal to be legal not because he did not know the difference, as is clearly visible from his various public claims in defense of his opinions. No, he made his determinations for political reasons and for which now the world views us as a nation of men, not laws.

He acted outside of the classroom to violate the very principles he claims to now teach in the classroom. This is no way puts Yoo in the same category of political victims. It is he, rather, who created the victims for political reasons.

Again, John Yoo is being openly accused of war crimes by human rights lawyers, politicians, NGOs, etc., which is hardly a small accusation and hardly one often made against American attorneys. I will not be surprised if Yoo ends up at the Hague, yet another first for America and American attorneys.

Alan Dershowitz long ago had my respect. Despite the plethora of issues we disagreed on, what we had in common was far more important -our deep devotion to the Constitution and the freedoms it guarantees. But Dershowitz and I no longer have something that basic in common, sadly. For reasons I do not understand, he has abdicated all ethics and integrity in order to defend the indefensible. He argues that all are entitled to a fair trial, including OJ Simpson, but contradicts himself and defends extraordinary rendition and torture as tools of the state acceptable in some situations.

For shame Mr. Dershowitz. I once respected you and now am only ashamed of you not just from the perspective of an American citizen, but also as a former citizen under the Soviet regime.

Where you could have been a shining light sir, you have become part of the dark blotch known as the Bush administration in the annals of American history. One has to wonder what Dershowitz's motive is. He has not cried McCarthyism when the facts of the Siegelman or Minor prosecutions became known. He has not rushed to offer his legal expertise to the victims of Bush's DOJ and the Stasi-like tactics employed by attorneys who violated ethical standards and likely violated the law for political reasons.

He has made no effort in recent years to help those who have been denied the very basic freedoms he claims to care about. Instead, he has spent his recent years defending an administration so un-American that I wager even McCarthy would have been shocked back into sanity had he seen the goings on of the last 8 years.

For shame Mr. Dershowitz.

Comments

[athiest69]

Let's take a new perspective. How many of us have had professors that had no business teaching?
So how, and where, do you draw the line? If you want Yoo out, what objective standard are you setting for doing so, and most importantly, what precedent is there for this?

The UC's are public and liberal leaning. Yoo is conservative. Whenever there's a public institution punishing someone who is across the political spectrum, one, often Dershowitz, asks if such punishment is consistent with the punishment of others. Then he dramaticizes his argument, such as with this analogy, and alienates the Huffington demographic.

But yeah, it's a good point, let's wonder what motivates Dershowitz to act the way he does. And if what you see as negative behavior you don't see as coming from selfish motivation, then you probably beleive this is some neurosis. But I think you're just mad Obama is not what you hoped he'd be. When he discards issues like marijuana legalization with such little elaboration, you could remember that Dershowitz endorsed Clinton in the primaries. Would Clinton have protected Yoo?

[ReasonIsMyReligion]

Yet AGAIN: Why aren't Larisa's posts featured !?!?!?!?

[ReasonIsMyReligion]

I have long defended Dershowitz. But this is nuts.

Imagine John Yoo wrote legal justification memos for Hitler. Would Dershowitz be holding the same position?

Situational ethics -- a lawyer's forte.

Rock on, Larisa.

[realpolitic]

Why Dershowitz expouses torture is anyone's guess? Perhaps it is little more than an expression of sadistic tendencies. Would Dershowitz have constructed the torture memos giving the President free reign to do whatever he liked? For scholarship sake, I certainly hope not.

Yoo's memos defined torture down to major organ failure or death, and still this harm had to be intentional or it did not meet the threshold of torture. Of course, this standard made it virtually impossible for any activity to be defined as torture and Bush could safely say we do not torture.

Yoo went on to say in other memos that the Fourth Amendment, which protects us against unreasonable searches and seizures, had "no application to domestic military operations­." This memo was said to provide the legal basis for the NSA's warrantless domestic wiretapping, in that the NSA is considered a military agency. Yoo also penned that the President as Commander-in-Chief could bypass our due process guarantees of the Fifth Amendment as well.

The Bill of Rights was shredded. Bush theoritically could have acted on this cockeyed advice. After all, I am sure Yoo wrote it with what the President's office wanted to hear in mind.

Yoo's advice is so outside any rational legal interpretation it meets a definition of criminality. At the very least, it is such poor legal advice and interpretation that Yoo should be permitted no where near a law school, unless it is in a nation with military junta rule.

[jhNY]

Dershowitz has put himself in the position of having to defend anything that the Israelis do, no matter what, to the Palestinians, and so because we used interrogation techniques perfected by and borrowed from Mossad, among other sources, he has twisted himself into knots that would make a pretzel blush so as to appear indefatigible in his defense of their doings. Even when nobody mentions the Israelis.

[Tremonius]

It seems you may be a decade and counting too late in questioning the self-promoting "acclaimed attorney." He was one of the grandstanding gallery who defended the double-murderer Simpson, after all, and murder is, despite its potential for career enhancement for lawyers, supposedly against the law, as is torture, at least historically.

He has the right to defend whoever he chooses, of course, beit torture enabler or muderer, and I have the right to refuse all the mass of books produced by this Dershowitz.

[AlexHidell]

From the AUMF, Sept. 2001:

"Sec. 2 (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution­."

This resolution is self-contradictory. #1 Giving Bush war powers only Congress has and #2 stating that it complies with the War Powers Res. of 1973 when it does not. Sec. 3 of the 2002 AUMF does the same for the Iraq situation.

[AlexHidell]

Larisa, the Obama administration now defending Yoo in a lawsuit brought by Jose Padilla. It appears that only by way of Sen. Leahy's 'Truth Commission' will we ever arrive at something approaching Truth and Justice in the United States.

Obama Justice Dept. will defend Yoo
By JOSH GERSTEIN | 3/6/09
http://www.politico.com/news/stories/0309/19734.html

".A Justice Department official, who asked not to be named, said the judge was advised that Obama appointees signed off on the legal strategy. "The positions taken in the briefs have been fully vetted within the administration," the official said.

Padilla's lawsuit claims that Yoo deliberately crafted erroneous legal memoranda in an effort to shield Bush Administration officials from liability for the decision to place Yoo (sic, meant Padilla) in military custody and for the harsh treatment he received in his early months at the Navy prison facility in Charleston, S.C. The suit also alleges that Yoo participated directly in some of those decisions.­...

Government lawyers, who are representing Yoo, have argued that the case should be thrown out on a variety of grounds. At Friday's hearing, they said the Obama Administration's promise of policy changes and Congress's current debate over setting up a "truth commission" to investigate Bush-era practices both demonstrate that Padilla's case belongs with the political branches of government and not the courts, a courtroom source said."

Maybe Dershowitz is trying to protect Obama in a twisted sort of way.

[Cult Legend]

Perfectly written, Larisa... You taught Dershowitz a lesson on Yoo (pun intended) but more importantly a lesson on human rights. It's funny Dershowitz's argument is that anyone has a right to fair trial, yet who was there to defend those who suffered at the hands of Yoo's green light on torture? Did they have the same right to fair trial? No, because as you well say, he "contradicts himself" right there.

Now if we could only find out the identity of the doctors who with callous complicity stood by monitoring vitals just so on those torture victims, then you could also teach them a lesson or two - and I know you would - on the Hippocratic Oath.

[ScooterLiddy]

Yoo/Gonzal­es/Rumsfel­d/Addingto­n/Cheney need to be frog marched off to Gitmo and waterboarded. Anything less and there is no justice.

[mm29464]

very good post. dershowitz is acting as though he is defending an academic colleague who is having his tenure threatened/denied for having written a controversial academic paper. yoo is a war criminal who wrote "legal" defenses/e­xplanation­s/covers for the administration actions that completely contorted and ignored legal precedent and commonly accepted definitions of concepts and words. his work was no academic think piece. what he is being condemned for is what he did while he worked as an employee of the executive branch not as a law professor. he should have not been hired in the first place.

mccarthyism is about guilt by association and witch hunts without any proof of wrong-doing, hence the use of the term witch-hunt. there is a paper trail of illegality linked to yoo that cannot be denied. he gave a semblance of legal cover to illegalities. the least he should have to suffer is to not be able to teach.

[clevelandchick]

Larisa,

As always, top notch writing. I don't know what happened to Dershowitz but he's gone off the rails.

Yoo's whole role in the administration was to give legal cover not just for torture, but the Unitary Executive theory which essentially suggests the President Of The United States can become a dictator if he/she so chooses for whatever excuse he/she can conjure. Twisting the law, bending the Constitution and using it to cover crimes hardly affords Yoo the title of victim by any stretch of the imagination.

Yoo should be disbarred, not pitied.

CC

[realpolitic]

Larisa writes excellently and goes considerably more in depth than many writers here. She always makes excellent contributions. Her passion about these issues is palpable.

[darthmaul]

Great post. Very well written. Yoo is a war criminal and should be in jail. "Academic freedom" as an excuse for what Yoo has done is a canard, plain and simple. Yoo is controversial for his so called "legal advice" to the former Bush administration, and not for anything that he taught at Berkeley.

[phasechange]

Very good, thank you. Again, you have proven yourself a good analyst, in this case, superior to Dershowitz. Dershowitz's slide into self-contradiction and bad law began with his unalloyed defense of Israel, and his attempts to justify anything it might do; he has been too ready to call criticism of Israeli torture and "collateral damage" to the Palestinians as anti-Semitism. Having produced tortured logic to defend such acts by Israel, he's now forced to defend such acts by the US. It us a pity he has embraced Yoo's unconstitutional and illegal behavior.