UC-Berkeley Law School on Tenured Professor John Yoo

Well, the answer to one of my questions has been answered. A few days ago I blogged about John Yoo's position at UC-Berkeley and how this seems kind of odd given the school's somewhat liberal past (and present for that matter). Anyway, I found this article about the law school's dean making some comments about Yoo. Like I said before, I'm sure Yoo is a brilliant man, but I would want to keep him as far from my school as possible given the context of Yoo's memo.

It seems as though Christopher Edley Jr. (the School of Law Dean at UC-Berkeley) takes great issue with Yoo's judgments but is somehow able to deflect the blame to the administration and the heads of Justice and Defense rather than Yoo himself. Edley said, "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," and, "President Bush and his national security appointees were the deciders." (Apparently Edley watches The Daily Show with Jon Stewart) In his defense, I agree with Edley, that it's important for the sake of academic freedom to have differing views, but I think Yoo's memo goes beyond "academic freedom" and differing views. Edley made a key observation, saying Yoo chose to allow politics to triumph over law; I couldn't agree more. I just don't see how someone like Yoo, who manipulates the law to terrible political ends, offers "academic freedom" within the framework of law. Furthermore, why do we want someone like that teaching future lawyers to manipulate and interpret law to the degree he did in his torture memo? Perhaps as a worst-case scenario, or, a what-not-to-do example?

God help us all if he's teaching "Ethics in Law".

Berkeley Dean Defends Law Professor

Pamela Hess, Associated Press, AP.Google.com, 11 April 2008

WASHINGTON (AP) — The law professor who wrote one of the seminal "torture memos" that cleared the way for harsh and what critics call abusive and illegal interrogation techniques is safe in his job, the dean of the school says.

University of California-Berkeley School of Law Dean Christopher Edley Jr. took sharp exception to Professor John Yoo's legal analysis for the Bush administration's Justice Department in a message posted on the school's Web site. But Edley said the responsibility for any resulting breaches of law rested with Yoo's clients — then-Defense Secretary Donald H. Rumsfeld and President Bush.

"Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders," Edley wrote.

"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," he said.

Yoo wrote a secret memo for the Pentagon dated March 14, 2003, which the Pentagon released last week under a Freedom of Information Act lawsuit. It outlines the legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas — so long as they did not specifically intend to torture their captives.

Yoo also referenced one of his earlier legal theories, now repudiated by the Justice Department: that the U.S. military was not required to observe constitutional protections against unlawful searches and seizures during domestic operations.

He built upon an earlier Justice Department memo that he helped draft which narrowly defined torture, and lowered the bar for how so-called enemy combatants could be treated.

"My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo's analyses, including a great many of his colleagues at Berkeley," Edley wrote. "If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless," he added.

While affirming Yoo's right to continue teaching at Berkeley and practicing law, Edley said Yoo had allowed politics to triumph over law.

"What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards," Edley stated.

In an e-mail to The Associated Press, Yoo declined to answer questions or comment specifically on Edley's memo.

"I am enjoying my teaching, research and writing at UC Berkeley, as I always have since 1993," he said. "I have always enjoyed the company of liberals, and while I cannot speak for them, I am sure they are not threatened by having a lonely conservative voice on the faculty."

Yoo received tenure at Berkeley in 1999. He took a leave of absence from 2001 to 2003 to serve as deputy assistant attorney general in the Office of Legal Counsel and returned to the school in 2004.

The House Judiciary Committee has asked Yoo to testify May 6 on the recently released memo, threatening to subpoena him if he refuses.

On Friday, Committee Chairman John Conyers, D-Mich., expanded the list of invited witnesses, noting AP and ABC News reports this week that top members of the Bush administration signed off on specific, harsh interrogation techniques. Conyers' list includes former Attorney General John Ashcroft, former CIA Director George Tenet, former Undersecretary of Defense Douglas Feith, Chief of Staff to the Vice President David Addington and former Assistant Attorney General Daniel Levin. Conyers said the committee will subpoena the officials if they refuse to appear voluntarily.

Copyright © 2008 The Associated Press. All rights reserved.

The Circle of Life [insert Elton John's song]: the Due Process of the Hybrid Guantanamo Bay Detainees

Yes, I decided to do a second blog today because I came across a couple articles that dove-tail off of some of my previous posts and add to what I said in the past. The article attached to this post can be put in my “Gitmo” series, as the trial of the U.S. detainees remains to be a key issue to be discussed in the rules of war of the Bush Administration. It has been said so many times before and I don’t feel like repeating it, but the detainees are effectively a third type of person-held-during-war-or-some-other-type-of-near-war, not to be confused with “prisoner of war”. These detainees are a hybrid: afforded basically none of the protections under prisoner of war status, and almost no effort to follow due process.

To be honest, I’m not really afraid of what the detainees will do when they get out of Gitmo, although I’m sure this experience would make them more radical. I am afraid of what their stories will do as a propaganda tool for terrorist/radical groups and people as well as tarnishing the U.S. reputation for due process. Similar to Bush’s claims that history will judge his presidency, Ahmed Darbi says, “History will record these trials as a scandal.” When Bush has made his claim, I have tried to contemplate a future in which the history book authors would view Bush in a positive light. I am not a huge Bush fan, but yes, I could possibly see this happening, but I think it is highly unlikely. Darbi’s prediction is much easier to envision because one does not have to look far into the future to see his statement coming true. In fact, there are plenty of authors in present day that view the detainee trials as a sham. Hopefully these trials can be resolved in the near future, but from the tone of the article below, the probability is low.

Saudi terror suspect: Military trials a 'sham'

Carol Rosenberg, Miami Herald.com, 9 April 2008

A Saudi captive called the war court here a sham at his hearing Wednesday, fired his Pentagon defense lawyer and was sent back to his prison camp cell with a promise from his military judge that his terror trial would go on without him.

"History will record these trials as a scandal," said Ahmed Darbi, the brother-in-law of a member of the suicide squad that struck the Pentagon on Sept. 11, 2001. "I advise you as a judge and all the people here to not continue this play, this sham." Darbi, 33, is charged as an al Qaeda conspirator and with providing material support for terror -- not in the 911 attacks, but on an unsuccessful plot to bomb vessels off the coast of Yemen between 2000 and 2002.

He is the fifth Guantánamo captive to be arraigned at a military commission and the second to refuse to cooperate with the first U.S. war crimes tribunal since World War II. A month ago, prison camp guards forced Afghan Mohammed Jawad out of his cell and into the commissions, where the man captured at age 17 declared his intention to boycott. "You will not be forced to be present. Do you understand that?" the judge, Army Col. James Pohl, told Darbi.

The court went silent for a few beats while the Saudi listened through his headset. "Yes," he replied. Then the judge advised, "If you are not present, the proceedings of the commission will happen in your absence." The captive had appeared for his two-hour session in the clean, white prison camp uniform of a cooperative captive and fingered his scraggly beard while listening attentively.

In measured tones, he repeatedly refused to participate in his upcoming military trial and refused his Pentagon's paid defense attorney, U.S. Army Lt. Col. Bryan Broyles. He asked for a Saudi lawyer. "To be honest, I consider my presence here at these commissions and presence of others here to be a crime against the law, a crime against divine justice and any earthly justice." The judge said he would keep Broyles on the case, as defense counsel, unless Darbi decided to participate and designated another approved lawyer.

Under the Military Commissions Act that set up the terror trials in 2006, only U.S. citizens can defend war court defendants. They are assigned military lawyers or judge advocates general, who can bring along civilian lawyers at no government cost. Foreign lawyers can act as consultants.

Broyles, in turn, said he would check with the Army and Kentucky bars on his ethical obligation to defend a client who had fundamentally fired him.

Darbi has repeatedly claimed torture in U.S. custody and particularly brutal treatment at the U.S. detention center in Bagram, Afghanistan. His testimony, via a sworn statement taken here, was admitted to the Texas court martial of a former Army guard who was charged with assaulting and mistreating detainees in Bagram but ultimately acquitted.

Darbi does not trust the system, said Broyles.

Asked whether his client thought he was being unfairly treated because his brother-in-law was Khalid al Mihdhar, one of the hijackers who crashed American Flight 77 into the Pentagon, Broyles replied: "If he doesn't think that, he'd be crazy. I think that." Darbi was captured at an airport in Azerbaijan and eventually turned over to U.S. forces, who transferred him first to Bagram and then to the remote prison camps here.

His charge sheets describe an ill-fated plot to drive a small explosive laden boat into a ship in the Strait of Hormuz.

The morning proceedings, Darbi's second appearance at the court, were fraught with translation problems. At one point, a a government translator referred in Arabic to the Army defense lawyer as "Lieutenant Darbi," At another point, the translation from Darbi's Arabic to English -- heard in the courtroom -- had him calling the session a "crime against humanity." Arabic speakers said he had not uttered the expression.

Broyles said his client had protested the court as a "human rights violation," and said his Pentagon paid translator would review an Arabic tape of the proceedings to correct the official transcript.

Also, perhaps signaling coming issues on the evidence phase of pretrial proceedings, the judge told U.S. government prosecutors that they could respond three ways on whether requested information actually exists -- yes, no or "neither confirm nor deny." The third option effectively means the evidence is classified secret or sensitive.

In doing so, Pohl was borrowing from a federal court standard called the "Glomar Response," in which the CIA refused to confirm or deny its relationship to a Howard Hughes ship, The Glomar Explorer, because any answer would compromise national security.

Darbi's next court hearing is May 21, a motions session on legal issues raised by the case.

War court sessions resume Thursday afternoon, with the arraignment of a Sudanese captive, Ibrahim Qosi, formerly charged as an al Qaeda payroll clerk who now accused of working as a driver and bodyguard for Osama bin Laden.

Then Friday, the military has scheduled a hearing in the case of Canadian Omar Khadr, who is accused of committing terror and murder as a 15-year-old in the grenade killing of a U.S. Army sergeant during a firefight at an alleged al Qaeda safehouse in Afghanistan.

The judge on the case, Army Col. Peter Brownback, has yet to rule on a motion by the Toronto-born Khadr's Pentagon lawyers that their client's case be treated as that of a "child soldier." Khadr, now 21, was sent to the prison camps here after his 16th birthday and has grown into 6-foot-2 adulthood behind the razor war of Guantánamo Bay.

© 2008 Miami Herald Media Company. All Rights Reserved.

Thoughts on Torture by "Yoo" Know Who

I seem to be spending a lot of time talking about torture but it is hard to avoid the subject when there are near-weekly developments. I stumbled across the article below and found it pretty interesting; interesting in the way that it made me sick to my stomach. The fact that John Yoo and the Bush administration were actually discussing the legal possibilities of some of these methods of torture is appalling. I’m also curious where the Religious Right has gone in the Bush Administration. I’m a firm believer in the separation of church and state, but how can anybody who voted for Bush because of his moral/religious stance POSSIBLY be happy with their vote after reading something like this? On top of that, Yoo says U.S. law prohibiting maiming does not matter in a time of war. I’m so glad the rest of the Justice Department dismissed Yoo’s 81-page memo (my faith in the U.S. Government is not lost) but it is amazing someone was proposing these ideas to begin with. I’m sure John Yoo is a very intelligent man, but how in the world is he employed at UC-Berkeley, especially given the school’s “liberal” history?

Permissible Assaults Cited in Graphic Detail
Drugging Detainees Is Among Techniques

By Dan Eggen

Washington Post Staff Writer
Sunday, April 6, 2008; A03

Thirty pages into a memorandum discussing the legal boundaries of military interrogations in 2003, senior Justice Department lawyer John C. Yoo tackled a question not often asked by American policymakers: Could the president, if he desired, have a prisoner's eyes poked out?

Or, for that matter, could he have "scalding water, corrosive acid or caustic substance" thrown on a prisoner? How about slitting an ear, nose or lip, or disabling a tongue or limb? What about biting?

These assaults are all mentioned in a U.S. law prohibiting maiming, which Yoo parsed as he clarified the legal outer limits of what could be done to terrorism suspects as detained by U.S. authorities. The specific prohibitions, he said, depended on the circumstances or which "body part the statute specifies."

But none of that matters in a time of war, Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief.

The dry discussion of U.S. maiming statutes is just one in a series of graphic, extraordinary passages in Yoo's 81-page memo, which was declassified this past week. No maiming is known to have occurred in U.S. interrogations, and the Justice Department disavowed the document without public notice nine months after it was written.

In the sober language of footnotes, case citations and judicial rulings, the memo explores a wide range of unsavory topics, from the use of mind-altering drugs on captives to the legality of forcing prisoners to squat on their toes in a "frog crouch." It repeats an assertion in another controversial Yoo memo that an interrogation tactic cannot be considered torture unless it would result in "death, organ failure or serious impairment of bodily functions."

Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war. He frequently cites his previous legal opinions to bolster his case.

Written opinions by the Office of Legal Counsel have the force of law within the government because its staff is assigned to interpret the meaning of statutory or constitutional language. Yoo's 2003 memo has evoked strong criticism from legal academics, human rights advocates and military-law experts, who say that he was wrong on basic matters of constitutional law and went too far in authorizing harsh and coercive interrogation tactics by the Defense Department.

"Having 81 pages of legal analysis with its footnotes and respectable-sounding language makes the reader lose sight of what this is all about," said Dawn Johnsen, an OLC chief during the Clinton administration who is now a law professor at Indiana University. "He is saying that poking people's eyes out and pouring acid on them is beyond Congress's ability to limit a president. It is an unconscionable document."

Yoo defends the memo as a "near boilerplate" argument in favor of presidential prerogatives, and says its fundamental assertions differ little from those made by previous presidents of both parties. In comments to The Washington Post and other news organizations, Yoo has also criticized the Justice Department for issuing new legal opinions that do not include detailed discussions of specific interrogation tactics, which he views as crucial to defining the boundaries of what is lawful.

"You have to draw the line," Yoo said in an Esquire magazine interview posted online this past week. "What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more -- we could have written it in a much more palatable way, but it would have been vague."

The 2003 memo includes long discussions of the relative illegality of a wide variety of coercive interrogation tactics, including a British technique in which prisoners are forced to stand in a spread-eagle position against a wall and an Israeli technique, called the Shabach, in which a suspect is hooded, strapped to a chair and subjected to powerfully loud music.

Various courts had declared both tactics to be inhumane, but not torture, Yoo noted. This meant that they were illegal under a provision of the Geneva Conventions that the administration said had no relevance to unlawful combatants in its custody.

In another passage, discussing the bounds of Eighth Amendment protections involving confinement conditions, Yoo concluded that "the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need." Yoo cited the need to prove "malice or sadism" on the part of an interrogator before he or she could be prosecuted.

The interrogation memo was considered a binding opinion for nine months until December 2003, when OLC chief Jack Goldsmith told the Defense Department to ignore the document's analysis.

In his 2007 book "The Terror Presidency," Goldsmith, who now teaches law at Harvard University, said that some of the memos written by Yoo and his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."

Douglas W. Kmiec, a Pepperdine University law professor who served as constitutional legal counsel for Presidents Ronald Reagan and George H.W. Bush, said Yoo can be faulted "for not writing more narrowly." It is often better to "brush in hazy gray" rather than "spray paint in black and white," Kmiec said.