In Defense Of Yoo

The Dean of the Boalt School of Law, Christopher Edley, Jr., has written a brief defending his decision not to fire war criminal John Yoo, as he has been prodded to do by the National Lawyers Guild, among others. The most craven part is when Edley makes up the reason that Yoo didn't actually do the torturing himself, or something:

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

I guess this Law School Dean has taken the word "accessory" out of all the books. This is the reverse Nuremberg defense, and I agree with Marcy Wheeler:

In the same way those who facilitated torture still cling to the inadequate claim that they were just following bad orders, Edley here gives Yoo the excuse that he was just providing advice, that his advice is distanced from the outcome of that advice because someone else ultimately exercises the key moral decision. Furthermore, I think this argument allows Edley to ignore what appears to have gone on here--Yoo appears not to have conducted real analysis, but rather he appears to have delivered shoddy opinions that gave Bush and Rummy and Tenet and Cheney the green light to do what they had decided to do before they sought his advice. Yoo, in a sense, willingly took on the role of decider here, because by providing such utilitarian opinions, he freed Bush and Rummy and Tenet and Cheney of the requirement that they risk their own moral authority to implement plans they claim were correct. Yoo leant them his own moral authority, and in doing so allowed them to escape the moral and legal consequences of their own decisions.

So, yeah, Bush and Rummy and Tenet and Cheney are in the wrong here. But so is Yoo, because he has tried and has thus far succeeded in placing them in a position where all of them can commit moral wrongs without owning those actions.

Exactly. And add Edley now to that list.

...Let me again say that John Yoo is making a public appearance on the 14th of April, next Monday, at the Bancroft Hotel in Berkeley, and you should go and tell him how you feel, because this guy shouldn't be allowed to walk the earth without hearing from citizens disgusted with how he debased this country.

Yoo's Law: And Why We Cannot Be Silent

As I wrote earlier today, the revelation that top-level officials in the White House actually debated what interrogation techniques to use on high-value targets, including torture, just sickens the stomach. In this context, it's clear that torture lawyer John Yoo was writing a document that was already written - a justification for the most heinous of crimes. That the Administration had to dip all the way down into the mid-level of the Justice Department, bypassing even the Attorney General, shows how difficult it was to find a cad willing to cover up their misdeeds, someone willing to disgrace the office and disgrace himself.

Yoo was a pawn bit none of this absolves him from blame. House Judiciary Committee Chairman John Conyers would like a word with him. Attorneys for Ali al-Marri, a so-called "enemy combatant" at Guantanamo, are using the memo to make the legal argument that his detention was actually illegal, since the memo was eventually withdrawn after al-Marri was captured and detained based on its legal theories. The "footnote" contained in the memo, that a previous memo waived the Fourth Amendment with respect to "domestic military operations," is causing Administration officials all sorts of grief on Capitol Hill. (That worm Mukasey, by the way, wouldn't say whether or not the Fourth Amendment waiver memo has been withdrawn.)

And now the National Lawyers Guild has called on Yoo to be disbarred and removed from the Boalt Hall School of Law, and for the Congress to repeal that part of the Military Commissions Act which gives him essentially legal immunity for his crimes.

In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President's detention and interrogation of enemy combatants. According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

"John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," said National Lawyers Guild President Marjorie Cohn.

Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country's premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

For those who want a "variety of views" to be expressed in the academic sphere, I think the National Lawyers Guild has a broader perspective about the First Amendment and freedom of expression.

There are things we can do at home as well. First, Mark Ridley-Thomas' resolution on torture must be passed, and used as a means to discover more about how medical professionals served this lawbreaking and who was involved all the way to the top of the chain of command.

As we recently commemorated the non-violent life and legacy of Dr. King, we cannot ignore the immorality of war that, he said, ravages our economy and “mutilates our conscience.”

Nowhere is that “mutilated conscience” more evident than in the alarming issue of health professionals involved in torture in the Iraq War [...]

Reports from the International Red Cross, The New England Journal of Medicine, the British Medical Journal, military records, and first-person accounts, provide overwhelming evidence that military physicians and psychologists have directly participated in the development and cover-up of torture and abuse of detainees in U.S. custody.

Medical professionals are reported to have advised interrogators as to whether particular prisoners were fit enough to survive physical maltreatment, informed interrogators about prisoners’ phobias and other psychological vulnerabilities that could be exploited during questioning, failed to report incidents of alleged torture, force-fed prisoners who were on hunger strikes, and altered the death certificates of prisoners who died [...]

As professional licensure and codes of ethics are regulated by states, California has the obligation to notify members of laws concerning torture that may result in their prosecution.

This week, I will put to a vote Senate Joint Resolution 19 on the floor of the Senate that states that the U.S. Department of Defense has “failed to oversee the ethical conduct of California-licensed health professionals related to torture.” [...]

Torture is much more than a political issue. It is an ethical, moral and spiritual issue that has not only become a shame, but it is an evil in our midst.

Dr. King would not remain silent on an issue of such moral importance. Nor will I. Dr. King repeatedly warned us that, “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.”

And perhaps most important, on April 14 at the Bancroft Hotel, Yoo will make a public appearance in an event with Georgetown Law Professor David Cole and others. Perhaps citizens who stand against the torture and murder of human beings in service to a failed theory of extreme executive power ought to stop by and let him know how you feel.

April 14, Bancroft Hotel. Be there.

Why Are We Paying War Criminal John Yoo's Salary?

At my home site I took a look today at John Yoo's recently declassified memo, which is more responsible for torture and detainee abuse at Guantanamo, Abu Ghraib and throughout American prison sites abroad than practically any other document.

If you're interested in weeping, you can read the 81-page memo yourself.

Part 1

Part 2

Yoo simply made up a new set of executive powers that trumped the Geneva Conventions, domestic statutes against torture, and virtually the whole system of the law itself.

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

Kind of a "self-defense before the fact" belief, completely contrary to how the American legal system works [...] The closed loop here is self-perpetuating. The DoJ writes a memo saying that the President has virtually unlimited power in wartime. The CIA and the Pentagon then takes the memo and uses it as proof of legality for their crimes. So we have an executive branch validating the rest of the executive branch, essentially a one-branch government that writes, executes and adjudicates the law.

There is no question that John Yoo is a war criminal; he provided the legal theories that the executive branch follows to this day, even though the Defense Department vacated this particular memo in 2003.

Elsewhere in the piece I noted that Berkeley must be exceedingly proud. Yoo is a tenured law professor who has been teaching at the University of California since leaving the Justice Department. The UC, as we know, is a public university system paid for with 3.2% of the general fund budget. Full professors there can earn up to $164,700 a year annually.

That comes out of my hide. Your hide. John Yoo is making his living based on public payments through taxes and other receipts. And he is an unquestioned war criminal.

I believe in academic freedom and understand the slippery slope of removing a faculty member with tenure because of their political views. In a best-case scenario The Hague would be making the decision of when John Yoo leaves his cushy law professor job by dragging him off in leg irons. But failing that, there has to be at least some standard of competence and dignity among a public university. The shoddy logic and faulty reasoning in this declassified memo should be a firing offense alone; and the implications of that memo should be more than enough to cement that. Not only is John Yoo teaching your kids about the Constitution and the law, we're all paying him to do it. And so at the very least the UC Regents need to hear from everyone in California, expressing their disappointment that they are harboring a war criminal at their flagship school, and determining what they will seek to do about that.

California Notes

Here are some notes from a few stories I'd been meaning to get to all week.

• Frank Russo had a good recap of the initial hearing from the three-judge panel charged with finding a solution to California's prison crisis. This panel may result in the early release of thousands of prisoners to reduce overcrowding. The panel does not appear to be able to be swayed by political expediency (unlike the Legislature for the past 30 years), saying "This is a judicial and not a political process." It is clear that the torturous conditions in California jails and the inability to deliver even basic medical care violates the Constitution and will be dealt with swiftly. Even the Correctional Officers union has come around to the point of view that reductions in the prison population are needed. Only a cowardly, leadership-challenged political class refuses to face reality.

• Here's a fun tale of health care at the Tribune Company, parent of the LA Times and local TV station KTLA:

The Tribune Company has come up with a new tactic to cut costs and annoy the hell out of its employees — again. It seems that everyone on the staff at the L.A. Times (and so I assume KTLA) has to prove that their spouses and children really are theirs, and thus eligible for medical benefits. Though wasteful and mildly insulting it sounds easy enough, but apparently it's not. They call it a "Mercer Audit" and its demands have some staffers in an uproar.

They're demanding documentation (a birth certificate or marriage license, I guess) with a deadline of days from actually giving employees notice. I'm sure in the boardroom this is considered "sound business sense."

• At our Calitics Quarterly event, I talked with Digby about her contention that the GOP is targeting California as the big blue state where Rudy Giuliani can break through and get the paradigm-shifting win they need. It's true that the big hitters in the state have all come out for him - although the Pete Wilson endorsement garnered all of three reporters to the announcement.



• Continuing on this theme, a new SUSA poll shows head-to-head general election matchups for all of the top three candidates on either side, and in California, it shakes out like this: against Romney or Thompson, all the Democrats win by between 15 and 33 points. Against Giuliani, Clinton beats him by 20, but Obama wins by only for and Edwards by only 2. Wow. Of course, Giuliani is still riding the name ID coattails. However, his clear penchant for wanting to be competitive in California is evidenced by the fact that the mystery fundraiser for the dirty tricks initiative was the chairman of Giuliani's northeast fundraising operation.

• Rik Hertzberg had an interesting footnote to the possible demise of the dirty tricks initiative:

Why would Schwarzenegger want to shoot down a proposal that has the potential of delivering the White House to his party next year?

My guess is that he isn’t losing any sleep over the probability of a G.O.P. Presidential rout, which would make him the indisputably most important Republican in America. His current port tack, on issues like health care and climate change, suggests that he knows which way the wind is blowing. Doubtless he would rather be swept along than swept away.

Then there’s this. Anybody remember the first Republican debate, on MSNBC back in May? I’ll bet Arnold does. He was in the front row at the Reagan Library when Chris Matthews asked the ten candidates if they would support changing the Constitution ever so slightly to make naturalized citizens eligible for the presidency. The vote onstage was eight to one against. (The one was Giuliani; McCain said he’d “seriously consider it,” which I count as an abstention.) Eight to one, in other words, in favor of crushing the ultimate and perfectly legitimate dream of the distinguished Governor of California.

If I were Schwarzenegger, I wouldn’t lift a finger to help these bozos.

• Finally, tonight at midnight, the UAW Local 2865 contract runs out. While the United Auto Workers settled their contract dispute with GM, Local 2865, which covers over 12,000 academic student employees at UC campuses (TAs, for example) has made little headway with UC. You can read all about it here. The whole idea of student employee unions gets lost in the shuffle, but they are being royally screwed, and are planning to file lots of unfair labor practices charges, in addition to keeping negotiations going and reserving the right to strike. We ought to support their efforts.