Balkinization  

Tuesday, April 15, 2008

Boalt's Yoo Problem

Stephen Griffin

With much respect for Sandy, I think he's stuck with an unenlightening set of analogies: impeachments and controversial opinions. Boalt Hall does have a tricky problem on its hands. This isn't like the William Shockley case from the 1960s, where an academic accomplished in one field (inventing transistors) goes off the deep end in another (eugenics). Here Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert. Further, it's not like cases involving academics choosing to have eccentric opinions in their areas of expertise. Here the "opinions" had very real consequences, ones Yoo had to be aware of in advance.

For a better analogy, imagine if Karl Bendetsen applies to teach a military law course at your law school. Karl is a JAG officer who is employed by ROTC on your campus. He got this job after the war ended. Karl spent the war playing a key role in devising the internment of citizens of Japanese descent in remote camps. He is well versed in military law and knows a good bit about constitutional law. Should Karl be paid to teach your students? I say no. To the extent others agree with me, Boalt will have a continuing problem.

And in brief: the opinions Sandy cites (like Marbury!) are controversial, not incompetent. And Bybee could be impeached if he played an active role in these events, but it really sounds like he did not.


Comments:


Here Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert. Further, it's not like cases involving academics choosing to have eccentric opinions in their areas of expertise. Here the "opinions" had very real consequences, ones Yoo had to be aware of in advance.

 

Bybee signed his name to memo that authorized war crimes. How does that add up to not having "played an active role"?
 


Here Yoo rendered deeply wrong and incompetent opinions in an area in which he was supposed to be expert. Further, it's not like cases involving academics choosing to have eccentric opinions in their areas of expertise. Here the "opinions" had very real consequences, ones Yoo had to be aware of in advance.

This is not about "wrong," "incompetent," "eccentric," or "consequences." This is about deliberately bogus scholarly opinions to further the ambitions of a client/sponsor. This shit happens all the time in drug research. But not, of course, at the University of California, which for the first time in its 123-year history fired a tenured professor last month. But universities that do have such problems, do indeed fire tenured professors for such professional misconduct.
 

As always, I find Steve's comments illuminating. But I'm left wondering: Is he arguing that Boalt Hall should in fact move toward the revocation of John Yoo's tenure (perhaps by convening a committee of disinterested academics who are prepared to warrant that he was so incompetent (and pernicious) in his conduct as a lawyer that he is simply disqualified as to profess law to students?
 

Yoo, I believe, got tenure in 1999. As a result, until convicted (deservedly IMO) of war crimes or disbarred, he should remain on the faculty.

However, the lackwits on whatever committee gave him tenure should, as much as possible, be eased out of positions of responsibility. They've demonstrated an impressive lack of foresight.
 

For a better analogy, imagine if Karl Bendetsen applies to teach a military law course at your law school.

Sure, but we're far past the job interview in Yoo's case. To make the analogy work: what if Karl already had tenure at your law school and took leave to go devise internment of citizens, etc.?

For some, this is a no-brainer: the status of tenure is irrelevant, and he should lose his job--simple as that.

For others, the status is an important issue, because certain guarantees and privileges are (at least implicitly) connected to that status, including protection against political persecution.

In academia, we usually see this battle at the point of review for tenure--awful fights break out when someone is denied tenure, often leading to litigation.

But once tenure is granted, I would argue the context and character changes.

But not, of course, at the University of California, which for the first time in its 123-year history fired a tenured professor last month.

Hmmm, not the first in the system, maybe you mean a particular school? Sergio Stone was fired from UC Irvine 3 years after being convicted of insurance fraud and 3 years after a panel of faculty found that he had failed to obtain proper consent from his subjects during his research.

Three years after a conviction, and he was still on the books as a tenured professor! This should give some idea of how long it takes to revoke tenure, and why other approaches will be far more suitable and productive for holding Yoo accountable for his malpractice.
 

Does U. Cal., as do other universities, do periodic review of tenures granted professors?

If so, then there's nothing abnormal or unusual in reviewing tenure.

Nor is it all that rare that tenure has been revoked -- or denied renewal -- because a professor did -- or didn't do -- something, whether as a professor or otherwise, which was sufficient to revoke -- or deny renewal -- of tenure.

And it needn't be something that rises to criminal, unless faking research is criminal, or plagiarism is criminal. As concerns Yoo, it rises to criminal, at most obvious, but the enthusiasm and blitheness of his actions -- I won't give him the excuse of incompetence; neither does Boalt -- says something more about his character, and his "morality".

In other words: there are important considerations as concerns "academic freedom," "free inquiry," and the like; but the bar, the threshold, against revocation or denial of renewal of tenure isn't so high as seems to be implied.
 

Perhaps tenure should be tenuous. After all, many of us have survived in employment at will circumstances without the safety net of tenure.

But that aside, I have enjoyed the verbal "YOU-TUBE" on this Blog, which could be improved with video, if available. My concern is that Yoo will end up the sole victim, breaking the link to the upper levels of the chain of command. Sometimes I think that those upper levels are feeding Yoo to the sharks to avoid themselves being caught up in the frenzy.

We need a Mike Nichols or a Tom Stoppard to come up with a musical or a comic opera on the subject of torture. Think of some songs:

"Yoo, you're driving me crazy ... "

"Bye-bye Bybee ... "

"Un-Cheney my heart ... "

"Take me right back to the rack, Jack ..."

"Sweet Addington, ... "

"By George, I think we've got it ... "

"I'm an Al Queada kind of guy ... "

"Yoo always hurts the one ... "

No royalties necessary.
 

Take a look at Ruth Marcus' Washington Post column today titled "Why John Yoo must stay." After presenting her argument, she closes:

"Keeping John Yoo at Berkeley is the high price of liberty."

If John Yoo were around back when, might Patrick Henry have said:

"Give me liberty or give me torture, just short of death"?

And little Lisa might say of her bro: "Keeping Bart at Balkinization is the high price of liberty." But, little Lisa, might that "high price" constitute cruel and unusual punishment?
 

I am not sure that I understand your analogy. Are you suggesting that a military lawyer who provided advice regarding the WWII internment of Japanese Americans could (or should) be denied law school tenure or employment on that basis? Even though the Supreme Court upheld the legality of what the lawyer advised? If so, should the Supreme Court Justices who so ruled also be denied tenure should they seek to teach at a law school? Presumably then they should also be denied honors such as having law schools, lectures, courthouses, etc. named after them?
 

Correction: I meant "YOO-TUBE" not "YOU-TUBE."
 

In response to Sandy, I'm not addressing the question of tenure. Tenure is sort of the third rail of this argument, best avoided. My point is that even if tenure is set aside, Boalt still has a problem and one that will continue, one that is not easily or lightly set aside.
 

Let us change the facts of the hypothetical a bit and see if that changes the perspective:

Ron Weddington represented "Jane Roe" and argued that abortion was not a crime. The Supreme Court agreed and 50 million children/fetuses have been killed since then through abortions. Weddington seeks to teach at a conservative law school (this is the hypothetical part). Weddington is perfectly qualified to teach law and better qualified than all other applicants. However, the conservative faculty considers Roe v. Wade to have no legal merit and are appalled at Weddington's active participation in what they regard as a holocaust.

Should the faculty ethically tell Weddington to take a hike?

If not, why not?
 

It's true John Yoo was SUPPOSED to be offering legal advice when he worked at the Office of Legal Counsel (OLC). But we know he did something else from examining the timeline when he wrote his August 1, 2002 and March 14, 2003 memos. Detainee torture was already occurring when he wrote his infamous memos.

What Yoo ACTUALLY DID was to offer page after page of legalese based upon dishonest and falsified legal research for purposes of shielding torturers and their superiors from criminal liability under the War Crimes Act, found at 18 USC 2441, and the Torture statutes, found at 18 USC 2340 and 18 USC 2340A. This was not "legal advice" within the meaning of the ethical responsibilities of any lawyer or within Yoo's delegated duties at OLC.

It's true that President Bush got a compliant, Republican-controlled Congress to pass legislation late in 2006 to water down the War Crimes Act. But John Yoo, and probably a score of other top Bush administration officials, are still facing life sentences pursuant to the torture conspiracy provision found at 18 USC 2340A(c). Congress did not amend the torture statutes and, as such, these statutes are still available to prosecutors against torture violations committed either during times of peace or war. Moreover, the amended Detainee Treatment Act only authorizes government-paid legal representation for U.S. government torturers prosecuted under the War Crimes Act. No such free legal representation is offered for torturers prosecuted under the Torture statutes.

Even if John Yoo is pardoned by President Bush, never charged for his participation in a torture conspiracy, or acquitted after a criminal trial, he still will have problems with the disciplinary officials of the bar associations where he is licensed to practice law. One of the missions of state bar disciplinary procedures is to protect the public from harm done by licensed attorneys. Because such disciplinary procedures are not conducted for the purpose of criminal punishment, there are times when licensed attorneys, somehow granted immunity from criminal prosecution, are disbarred for their uncharged or unconvicted criminal acts.

Considering that John Yoo still publishes law review articles rationalizing his bizarre views of Presidential authority during wartime, his unrepentant attitude is likely to cause him serious legal problems. If Berkeley's law school dean, Christopher Edley, refuses to fire John Yoo after all that is now known about Yoo's falsified legal research, Edley simply will be delaying a decision that has to be made after Yoo is disbarred or convicted.
 

Commander-in-Chief as Torturer-in-Chief: President, Principals and their Advisors as Persons of Interest

In a late Friday news drop, almost four years to the day from the 60 minutes II program that broke the story of the Abu Ghraib horror, the President of the United States admitted that he was aware of and approved the meetings since 2002 of the National Security Principals in the White House Situation Room in which detailed torture plans were designed and ordered for high-value detainees. The National Security Principals consisted of Vice President Dick Cheney, then CIA Director George Tenet, then National Security Advisor Condoleezza Rice, then Secretary of State Colin Powell, then Secretary of Defense Donald Rumsfeld, and then Attorney General John Ashcroft. These persons were aided and abetted and sometimes substituted in the meetings by their deputies. In addition, the President and other attendees such as George Tenet have stated that there were legal opinions that were prepared that argued for the legality of the methods used. These meetings have gone on well past the end of 2004.

The President attempted to play down this news – like everyone had known about it. Sorry, Mr. President, not good enough. It is a big deal for the President of the United States to admit he is the Torturer-in-Chief. I have not seen that in my 52 years of life and have never heard of a President having said that about himself in all of U.S. history. This is big news.

I. Remembrance of things (of the recent) past

At the risk of dredging up memories that persons have carefully tried to forget, I thought it might be useful for us to refresh our memories. Remember when the Abu Ghraib scandal broke? Remember the shock at the photos? Remember the casualness of the soldiers with the detainees? Remember the Iraqi General on ice in a bag? Remember the testimony on the Hill? Remember the efforts to demean those soldiers who did those awful things with references to their sex lives, their being from Appalachia (wink-wink w* t*), etc? Remember the court-martials of the low-level soldiers? Remember, the description of those soldiers as “a few bad apples”? Remember the orchestrating of a number of reports and studies by generals at various levels that came to the conclusion that responsibility did not go above General Karpinski at the camp? Remember General Karpinski discussing how General Miller had taken over Abu Ghraib and her complaints being dismissed as she was demoted ?

Remember "Gitmoizing?" Remember the President insisting over and over that we did not torture and that those pictures were abhorrent? Remember Secretary of Defense Donald Rumsfeld describing his shock at the pictures? Remember then National Security Advisor Condoleezza Rice expressing abhorrence also? Remember how we were assured that what had happened was not official policy? Remember the testimony before the House and Senate Armed Services Committee and other committees of various players in this scene such as General Taguba and Stephen Cambone on all this? Remember when Chairman of the Joint Chiefs of Staff Richard Myers advised that then General Peter Pace had been the one to inform the President of the Abu Ghraib scandal and General Myers decline to advise as to what the President had said?

Remember the battle in early 2002 over whether the Geneva Conventions would be allowed to apply to the Taliban and Al-Qaeda? Remember the story of Alberto Mora running around the Defense Department trying to fight the Rumsfeld interrogation techniques? Remember the story of William Taft IV objecting severely to the John Yoo memo on the inapplicability of the Geneva Conventions to Taliban? Remember then Secretary of State Powell arguing for the applicability of the Geneva Conventions? Remember Attorney General John D. Ashcroft not arguing forcefully for their application? Remember Alberto Gonzales weighing in for "flexibility"? Remember the President making sure that those Geneva Conventions did not apply?

Remember Jack Goldsmith's memo providing the legal basis for transfer of persons out of Iraq to third countries where they were tortured? Remember the pressure against the Detainee Treatment Act of 2005 and the compromise in which Senator John McCain blinked and gave the President essentially what he wanted? Remember the Presidential Signing Statement that went along with the signing of that act?

Remember after Hamdan how the top JAG’s to a person agreed that at least Common Article 3 had been violated in some of the techniques that had been authorized?

Remember all the pressure in the fall of 2006 to get the Military Commissions Act passed supposedly to give the tools to the persons "on the frontlines" who needed them to protect America? Remember Stephen Bradbury pleading for the need to pass the Military Commissions Act? Remember former Secretary of State Colin Powell being hailed for his weighing in along with other retired Generals in favor of the Geneva Conventions during those legislative moments? Remember Senator McCain, Warner and Graham caving on the Military Commissions Act of 2006?

Remember the arguments of now Department of State Legal Adviser John Bellinger that human rights law did not apply as there was a lex specialis that covered the legal space? Remember how that lex specialis argument, in the absence of Geneva Conventions applying, would create a convenient legal black hole in which to throw people? Remember Gitmo being created as a physical manifestation of that legal black hole?

Remember the persons in secret incommunicado detention at black sites? Remember the ghost detainees in Iraq and other places kept from the International Committee of the Red Cross? Remember the persons tortured at Bagram? Remember Diego Garcia, Poland, Thailand, Roumania and other places?

Remember the revelation of the August 2002 Torture Memo? Remember the withdrawal of that memo and the replacement by the December 30, 2004 memo of Dan Levin? Remember Dan Levin being fired and replaced by Stephen Bradbury at the Office of Legal Counsel in early 2005 who obliged his principals during his probation period by writing a still classified "combined interrogation techniques" legal opinion that is still unavailable?

Remember George Tenet on 60 minutes describing his book? Remember the books and articles of John Yoo? Remember the Terror Presidency of Jack Goldsmith?

Remember the more recent revelation of the March 14, 2003 torture memo? Remember Chertoff advising on the legality of certain techniques of torture? Remember Attorney General Gonzales? Remember Attorney General Mukasey and his unwillingness to say waterboarding is torture? Remember Bybee? Remember Haynes? Remember Brett Flanagan being questioned by Senator Durbin?

Remember the revelations this past Christmas of the bipartisan Gang of Eight in Congress who were made aware of these practices in briefings and were enthusiastic in supporting them as described by former CIA Director Porter Goss?

Remember the hurt of 9/11? Remember how barbaric it was?

Please remember all this, grab all the aspects of the size of the barbaric torture that has been going on in the name of the barbaric 9/11. Hold all these items and all the other thoughts that you remember about this torture in your head.

Now, look at the weakness of our domestic response.

II. John Yoo - Christopher Edley and the defense of Academic Freedom

Over the past week or so, a brouhaha has bubbled seeking to oust John Yoo from his teaching post at Berkeley 's Boalt Law School. The banner that is raised in defense of John Yoo's right as a tenured professor to teach is academic freedom.

Academic freedom is something that we value highly and it is under threat. Please note though that the torture ban is a peremptory norm of the highest level of international law.

As law professors, we feel strongly the academic freedom internal norm and the right for each of us to say what we feel in our academic jobs.

The torture ban is an obligation on the United States. I do not believe that academic freedom is an obligation in international law of the same order as the torture ban.

The victims of Yoo are for the most part people in other countries while, if we were seen to have opened the way to attacks on academic freedom in going after Yoo, the victims of an attack on academic freedom here would be people like us in the United States. There are many persons in academia who are unpopular and we can not foresee how resources might line up against this person or that person.

If we let Yoo off the hook here because of our academic freedom concern, I think that we are acquiescing in US non-compliance with its international obligation. We are doing that little bit of stepping back from the fight that, each little bit, helps him keep the ability to apologize for torture. I tend to think that such acts are acquiescence and have the effect of legitimizing what Yoo did.

I tend to hold now a view that if we resist torture we make Yoo's acts illegitimate, but if we acquiesce then we make them legitimate.

The question that I am simply raising is whether we should acquiesce in an advocate of torture retaining his position without scrutiny of his work enabling torture.

We must remember that Yoo is only the tip of the academic iceberg. Persons who acted in the torture who come to academia coming from government or other services (or anywhere) might also be targeted in due course. For example, a psychologist or a soldier. I have been made aware of such persons.

However, isn't any hanging back from the full effort nothing more than acquiescing in legitimizing the torture?

I recognize that there will come a time when I will color in the resist/acquiesce dichotomy with more nuance. But I am not there yet, and given the breaks these torture enablers are getting, I am not sure that we should be participating in giving them a defacto break by stepping back from the fight.

There are always good reasons to acquiesce. The process of getting our acquiescence is a complex and multifaceted process from what I can see. Resistance is the hard thing.

Given the defenses of academic freedom that are so strident, you get this feeling that the simplest way to deal with this is to have Yoo indicted, get him convicted and then he would be removed under the Berkeley rules.

In fact, I am coming to this view for many things. For example, I learned this week that the reason a draft member initiated proposed resolution at the American Society of International Law (ASIL) on laws of war, detainee treatment, waterboarding and calling for criminal prosecution of torture and cruel inhuman and degrading treatment was declared inadmissible by its Executive Committee this year was because our proposed language referred to waterboarding as being a violation of domestic and international law for 100 years. The article principally cited referred to a conviction at a court-martial in the Spanish American War but the cases in the WWII Tokyo War trials were said to be not "clear enough" as to whether convictions were based on (or sufficiently only on) the waterboarding as opposed to other forms of torture.

Now, with extremely august members of the Executive Committee of the ASIL making these kinds of distinctions as to evidence of universality of waterboarding being torture for 100 years, I realize that fine distinctions being made by those against action are inevitable no matter how lengthy a report is made. To be put another way, no matter what I write it will never be enough because some bright person can always make distinctions.

I saw the incoming President in the hall of the annual meeting and she said that maybe the resolution could be resubmitted with a more detailed report. Off the cuff, I said that next time what I will do is first get the people convicted of waterboarding and THEN bring the resolution to the ASIL. That would make it easier.

What I am saying is that the gargantuan task of getting the prosecution is made to seem LESS difficult than the herculean task of getting a condemnation of a learned society of what is happening. And the herculean task is that because fine distinctions are made that always appear perfectly credible and leave us in - inaction. The forest is missed for the trees.

III. Coming out of comfort zones

I agree with what everyone says about academic freedom, but I just keep coming back to the idea that torture is torture and that torture is in a space that goes beyond academic freedom into a space about human dignity that is so far into the essence of something about what it is to be a civilized human being - that I feel just out of synch with all this discussion.

I have read the slate, balkinization, salon, and other blogs on this and I just feel that what we are talking about is in a space that is simply outside of what we are accustomed to. It is like we are in a space outside of comfort zones where the analysis we are evaluating is itself an attack on our human dignity.

I tend to think that the rules at Berkeley or the rules anywhere are not maybe capable enough to capture the idea of a person on the faculty who is encouraging destruction of human dignity at this level.

To me, it is a visceral reaction, like the one I feel about Josef Mengele's father - the man who organized the extermination of the Herrero in Southwest Africa at the turn of the 20th century. Yoo's memo organizes the legal basis for the torture.

I say these things because the stuff Yoo authored was used and is being used in REAL TIME and I do not believe it is a question of 2 or 3 high value detainees but rather that all this has been far more massive than we know at this point. The tone of the March 14, 2003 memo is an application to the entire military so I am thinking any theater of operation in which persons have been captured were under the Yoo memo vision. And I think the still confidential memos play out this vision still.

I think that organizations that place an understandable premium on academic freedom are put in a tough spot because the thing that I am describing that Yoo enabled is something that annihilates human dignity let alone thinking.

But I may just be considered a little crazy and so please forgive me. I fear that I can not express this very well and I can not convince people to take the step of action.

IV. The action to be taken

It seems as clear to me as day that the thing that needs to happen is very simple: evidence is given to a prosecutor, the prosecutor gets a grand jury empaneled, the grand jury issues an indictment against the various persons of interest for the various crimes allegedly committed such as Common Article 3 War Crimes (per the Military Commissions Act of 2006), Non-Common Article 3 War Crimes, Conspiracy or Solicitation to commit a crime of violence (Section 393)(Common article 3 Grave breaches or Non-Common Article 3 Grave Breaches), Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, Conspiracy to Kidnap or Kidnapping, Conspiracy to Torture and Torture, Conspiracy to Assault and Assault, Conspiracy to Maim and Maiming, “Cover-up” type crimes, Deprivation of rights under color of law or Conspiracy to deprive of rights under color of law, State law crimes incorporation, Other crimes, Uniform Code of Military Justice crimes such as Article 81 – Conspiracy (conspiracy by both uniformed and civilians would be a mannerwithin the Uniform Code of Military Justice to capture some of the crimes thatwould have been entered with high-level civilians.), Article 93 – Cruelty or Maltreatment, Article107 - False Official Statements, Article118 - Murder, Article 119 - Manslaughter, Article 120 - Rape and carnalknowledge, Article 124 - Maiming, Article 125 - Sodomy, Article 128 - Assault, Article 131 - Perjury, Article133 – Conduct unbecoming an officer and gentleman and Article 134 – GeneralArticle (generals would be treated as Article 77 – Principals or Article 78 –Accessories after the fact), and possibly State Prosecution of high-level civilians and/or military generals.

Either through pleading out or conviction these persons are convicted. If they are members of the bar they are disbarred like Scooter Libby. If they are teaching at universities, they lose their tenure.

The operative theory for all of the cases would be something like this:

“Whatever the rationalizations made, these high-level civilian and military general defendants organized torture and cruel, inhuman and/or degrading treatment in violation of United States law. We will prosecute, convict and sentence them for their crimes. We keep our honor clean when we fight wars.”

Let them bring before a jury all the defenses that they wish and let a jury decide on their fate. I have faith in the jury's ability to see through the smokescreen and see what the injury to the United States has been from the actions of these persons of interest.

V. No need for impeachment

As to the President, the difficulty of criminal prosecution of a President during his time in office is significant. That is why his role throughout this process before his resignation or January 20, 2009 would be as an unindicted co-conspirator. After his Presidency ended, there is plenty of time to prosecute him for being the Torturer-in-Chief. As to present or former members of the Executive, they will assert various defenses. Let them do that and let a jury hear them. As for current members of the Judiciary, they would be tried for their acts prior to being on the bench. If they can get fined for misdemeanor DUI they can be prosecuted for conspiring to torture. As to members of Congress, the Gang of Eight may be untouchable under the Speech and Debate clause, however we should test that. If that is a problem, then let us consider them as unindicted coconspirators while in office also and let them take the political heat for that. As to retired military generals, as long as they are pulling down a pension they are subject to the Uniform Code of Military Justice. Otherwise we just go after them in court.

Some might assert the President's Constitutional powers. The question of course is whether the President of the United States is above the United States. The obvious answer is of course not. Thus, the obligations of the United States are vindicated domestically in the manner we deem fit in our system. These prosecutions under our laws vindicate these international law obligations on the United States and they are statutes that apply as domestic law - whatever Medellin is read to say about our treaty obligations.

VI. So prosecute in U.S. domestic courts

So rather than waste more ink on arguing about academic freedom or this or that point, let us keep it simple. Let us call on the appropriate person (Hello Mukasey?) to prosecute all these people. And if the Attorney General wishes to refuse to open such a prosecution, then let us add him to the list of the persons of interest as a possible accessory after the fact. Yup, accessory after the fact.

After the said convictions, we can look to the other kinds of relief that seem to flow easily from the convictions. Of course, the President may seek to pardon all these people. Let him go ahead. Let that be his legacy as the Torturer-in-Chief.
 

What will Boalt do, with “Torturer” Yoo?
==============================
The issue of academic tenure may make life difficult for Yoo’s University.

His tenure is presumably a term of his employment contract and as such subject to the express and implied terms of the contract and I assume that tenure can only be removed for gross misconduct.

It is not in evidence thus far that his teaching is as ‘off the wall’ as his opinion writing. On the other hand, students have a right to expect teaching by the competent and the very least that can be said about the Yoo Memorandum is that it demonstrates breath-taking incompetence as a practising lawyer.

I assume that the pay-off to get Yoo out would be at least his anticipated lifetime emoluments less a discount for advance receipt of the money – not cheap.

I am very glad I am not on the hebdomadal council or whatever organ Boalt has to concern itself with this dilemma, but perhaps possible interim provisions could include:-

(i) inviting Yoo to take gardening leave while he riffles through lists of countries that don’t have extradition treaties with places where he may be at risk;
(ii) arranging a sabbatical on full pay with a face-saving appointment in the sort of environment he has frequented in the past, such as the Heritage Foundation, the American Enterprise Institute the Federalist Society; or
(iii) secondment to a country he might find congenial: Uzbekistan and Burma spring to mind and Bill Clinton might be able to help with the former.

Failing all of those, I suppose Bart De Palma might offer him a post.

In due course, Yoo and others may have other matters to keep them busy, and therefore there is perhaps no need for an expensive permanent solution (one hesitates to use the expression ‘final solution’ in the circumstances) to Boalt’s little problem.
 

This is a pickle for Berkeley indeed. Having read a number of Yoo's pre-OLC law journal articles, I am at a loss as to how he landed a tenured spot at Boalt in the first place. And, while nothing I read dealt with torture in particular, the articles certainly presaged the whole monarchical coneption of Executive power that permeates the memos. No doubt, such scholarship is precisely why he was appointed as factotum to the Cheney-Rumsfeld axis.

Having thus screwed the pooch so egregiously in the first place, Berkely now has to deal with the fallout from disclosures that make it clear to all (and not just those who picked up his earlier scat-trail of scholarship) that Yoo is either lacking in basic professional competence or willing to jettison all professional standards in service of his masters' will to torture. Either way, he's a hack unfit to practice law and likewise unfit to teach law.

It's also quite clear that Yoo's memoranda constitute complicity in an advertent scheme to violate the laws against torture with impunity. As such, they constitute prima facie evidence of criminal conduct.

However, the likelihood that Yoo's criminal conduct (or that of his "clients") will be established in a court of law is very slim. Mukasey isn't going to prosecute Yoo, and Bush will no doubt pardon him on his way out the door. So Boalt is deprived of an opportunity to use the easy method of stripping tenure -- wait for a criminal conviction and then give him the boot -- but that doesn't really make the problem go away. It merely places Boalt in an extremely small group of institutions that can show that they give a shit about the perversion of the rule of law and professional standards that is on display here (the only other institutions being whatever state licensing authorities have granted Yoo the right to practice law).

That's a pretty lonely spot, with "strategic" downsides no matter which way the institution goes -- i.e., being accused of coddling a war criminal whose a lousy lawyer to boot if it does ntohing, or being accused of stripping tenure for "political" reasons if the university acts.

I think the former evil si substantially worse than the latter -- and it carries with it greater capacity for long-term damage to the institution's reputation and integrity. But then I don't know what kind of occult deals were reached between Boalt and segments of its donor base to install this idiot in the first place. Edley apparently does, which would explain why he's cowering under the skirts of "academic freedom."
 

I agree with Benjamin Davis's excellent analysis, and specifically with his statement that "I do not believe academic freedom is an obligation...of the same order as the torture ban." If one argues that a person who falsely shouts fire in a crowded theater is not entitled to First Amendment protection, can it be argued that torture is such an assault on humanity and human rights that those who advocate its use should not enjoy protections they would normally be able to invoke? An aggravating factor in Yoo's case is that he was not merely making an academic argument in a law review article but making policy that justified, enabled and assisted the commission of a crime.

I do believe that Yoo is unlikely to ever face prosecution in the United States and so if the tenure board does not act, I guess the only punishment he will ever face is if the students at Boalt Hall decide to vote with their feet and refuse to take instruction from someone who so clearly brought shame to himself, his university and his country.
 

http://www.law.berkeley.edu/courses/courseSearchResults.php?termCode=B&termYear=2008&instructorSearch=235&courseTitleSearch=&courseNumSearch=&Search.x=32&Search.y=9

This webpage lists the two constitutional-law courses John Yoo is teaching spring 2008. Maybe someone has pointed this out already but if so I haven't seen it. To wit, how do the Dean, the students and the other faculty feel about someone as patently incompetent as Yoo teaching these courses? As an emeritus professor I take tenure very seriously and do not think that Yoo should lose tenure or be fired absent a very formal and careful hearing process. But that doesn't mean he should be allowed to continue to teach consitutional law to Boalt law students. Are these perhaps required courses? If so, that would seem to me to justify a massive effort to get Boalt to deal with at least Yoo's credentials as a teacher.
 

Phil: Interesting that both of those courses are for 2Ls and 3Ls. My understanding was that Yoo ordinarily teaches first-year constitutional law. Could the faculty have at least reassigned him to courses that students have a choice to take or not to take? That would be something, not nearly enough, but something.
 

Well if it's the only recourse, surely the classroom/auditorium can be located by normal Joes like me. Whether anybody shows up and heckles Yoo during class remains to be seen.
 

Ben:

Apart from the myriad legal and evidentiary problems with the criminal prosecutions you propose, there is a rather large practical problem - DOJ has approved and apparently reapproved the CIA's coercive interrogation program. They are hardly in a position to mount a credible prosecution here, even if they were of a mind to do so. The same applies to Congress in an impeachment.

All your other claims have already been investigated, and where there was sufficient evidence, prosecuted by the JAGC. The only suspect who should have been courts martialed, but was only demoted, is General Karpinski, the commander of that zoo at Abu Ghraib.

There is no evidence that anyone above the local units knew what was going on at Bagram or Abu Ghraib. Accusing the entire chain of command of criminal culpability makes for satisfying blogging, but does not provide actual evidence to make those cases.
 

Bart,
No one said it was going to be easy to do. Nuremberg was not easy. The IBM anti-trust case was not easy.

Torture at the President's behest is as big a deal as either of those my friend.

All I am saying is to do it.

As to criminal hurdles, sure but so what? We go through them.

As to evidence hurdles, there was no evidence of the Yoo memo until someone mentioned it and it finally got dragged out by ACLU Freedom of Information requests.

There was no evidence of the National Security Principals sitting around the White House Situation Room organizing torture, until someone mentioned it, notwithstanding all those investigations.

Just to bring it back to Abu Ghraib, Charlie Graner's lawyer is asking for the Yoo memo to be part of the parole process now. He also says that it should have been provided as part of the discovery during the UCMJ proceeding. At the time of that decision, no one knew of this.

Get it to a jury - we'll see what they have to say about all this my friend.

Karpinski's the fall lady my friend.

And just because Mukasey is an appointee of this President does not mean he does not work for each of us. So we need to get him to get it done or appoint a special prosecutor who will get it done.

Best,
Ben
 

"Let us change the facts of the hypothetical a bit and see if that changes the perspective:

"Ron Weddington represented "Jane Roe" and argued that abortion was not a crime. The Supreme Court agreed and 50 million children/fetuses have been killed since then through abortions. Weddington seeks to teach at a conservative law school (this is the hypothetical part). Weddington is perfectly qualified to teach law and better qualified than all other applicants. However, the conservative faculty considers Roe v. Wade to have no legal merit and are appalled at Weddington's active participation in what they regard as a holocaust.

"Should the faculty ethically tell Weddington to take a hike?

"If not, why not?"

No, because abortion is a non-issue except for those directly involved, and the extremists who lie that they are instead "conservatives" -- the latter would keep your nose out of other peopel's bedrooms and crotches -- are hypocrites who at the same time support the death penalty, the illegal invasion and occupation of Iraq, and the war crime of torture.

All because supporting the death penalty, etc., fulfills the New Testament requirements of Christians that they turn the other cheek. Which is also a way of saying: know where that which is your business begins, and where it ends -- which latter is before it becomes other's business.
 

Ben:

Get it to a jury - we'll see what they have to say about all this my friend.

Your prosecutor first has to offer a prima facie case or he or she will never get to a jury.

Karpinski's the fall lady my friend.

I have friends and family who fought and continue to fight in Iraq and Afghanistan. Abu Ghraib provided an enormous propaganda coup and recruiting tool to the enemy, extending the Iraq War at least two years before we won over the Sunni and costing hundreds of US and thousands of Iraqi lives.

Consequently, I have little or no sympathy for the perpetrators of Abu Ghraib.

There is no evidence that the perpetrators of Abu Ghraib were even aware of the existence of the Yoo memos or the approved protocol for the CIA coersive interrogation program. The sexual perversions perpetrated at Abu Ghraib were not part of either the memos or the program.

At trial, the perps tried to claim that they got their ideas from others. However, they could neither name nor even describe these mystery men. In reality, the ring leader of this groups of perps was a sick f--- who had previous experience doing this in civilian prisons.

The job of a commanding officer is to command, supervise, instruct and discipline his or her command. The officer is just as responsible for the conduct of his troops as the troops themselves.

During the Persian Gulf War, I discovered one of my squad leaders abusing his troops by taking the time to inspect and talk with my soldiers. I prosecuted him under Article 15 of the UCMJ and made it clear to him that leaving the service would be a good idea or I would make his life miserable. He took the good advice and left.

There is no excuse for Karpinski not knowing about what was going on under her command. It appears that her entire officer chain of command had taken a vacation and let their command run amok. This is one of the worst dereliction of duties of which this former Army infantry officer has ever heard. The officers and NCO's starting at that platoon and through Karpinski should have been relieved and courts martialed.

If Karpinski had any honor at all, she would have taken responsibility and resigned immediately for the good of the service. Instead, this pathetic excuse for a REMF officer tried to pawn off her responsibility on others. Please do not make excuses for this disgrace to the Army.
 

At least Boalt knew of his work. The U of MN hired Robert Delahunty, another co-author, but stated that it did not know his background.

Maybe it was all that torturin' that caused the U's rankings to slip this year.
 

“Whatever the rationalizations made, these high-level civilian and military general defendants organized torture and cruel, inhuman and/or degrading treatment in violation of United States law. We will prosecute, convict and sentence them for their crimes. We keep our honor clean when we fight wars.”

Thank you, Benjamin Davis.

Torture is not "academic"; it destroys (also) the freedom of its victim/s. It is reported, by Sy Hersh among others, that at Abu Ghraib young Iraqi boys were raped by US citizens/personnel in front of their parents in order to compel the parents to "spill beans" they doubtless didn't have. Those rapes were videotaped. Read Sy Hersh, who saw the tapes, about the horror of the screams of those unoffending children.

Those are the consequences of John Yoo (et al.) and his "academic" exercises. How many of those children will someday attain a tenure protected by defenses of "academic freedom"?

And the damage is to not only to the United States -- which is first, always, and last (also) "A system of laws, and not of [John Yoo, et al.]" (John Adams) -- but also to the US citizenry as a whole, and to each US citizen individually.

Shall we exacerbate that damage by complicit inaction -- approval? Or shall we act to retrieve our country from its current active depravity?

How about one more rewrite, Benjamin, of that which is powerfully stated, necessarily said, then circulating it as perhaps "A Statement of Principle for Action Against Torture," or "A Statement for Principled Action Against Torture," or even as a petition, to every law school faculty in the US and abroad?

The profession needs to be put on the spot in order to get it off its idle debate of, essentially, the "merits" of torture, off its ass, off the dime. Torture is not a topic of "academic freedom" and "academic" discussion for the victim/s of it. Call academic meetings on the topic of HOW TO ACT. Form committees, teams of academics/law professors/lawyers TO ACT.
 

"This webpage lists the two constitutional-law courses John Yoo is teaching spring 2008. Maybe someone has pointed this out already but if so I haven't seen it. To wit, how do the Dean, the students and the other faculty feel about someone as patently incompetent as Yoo teaching these courses? As an emeritus professor I take tenure very seriously and do not think that Yoo should lose tenure or be fired absent a very formal and careful hearing process. But that doesn't mean he should be allowed to continue to teach consitutional law to Boalt law students. Are these perhaps required courses? If so, that would seem to me to justify a massive effort to get Boalt to deal with at least Yoo's credentials as a teacher."

And who should initiate that massive effort? Only those outside the academy?
 

Bart continues the "disinformation" campaign in defense of torture and admitted/proven torturers:

"There is no evidence that anyone above the local units knew what was going on at Bagram or Abu Ghraib."

That's not what Bushit himself said in both NOT DENYING but INSTEAD ADMITTING AND AFFIRMING the planning and implementation of the war crime of torture by the "Principles" committee, which held those planning sessions in the same building and just down the hall from Bushit.

"Accusing the entire chain of command of criminal culpability makes for satisfying blogging, but does not provide actual evidence to make those cases."

The Taguba report alone is stuck in your throat and refuting of that assertion, Bart, having been shoved there by the evidence and truth.

Lying is unethical, Bart -- even when you do it.
 

Bart repreats the refuted lies:

Ben:

Get it to a jury - we'll see what they have to say about all this my friend.

Your prosecutor first has to offer a prima facie case or he or she will never get to a jury.

Karpinski's the fall lady my friend.

I have friends and family who fought and continue to fight in Iraq and Afghanistan. Abu Ghraib provided an enormous propaganda coup and recruiting tool to the enemy, extending the Iraq War at least two years before we won over the Sunni and costing hundreds of US and thousands of Iraqi lives.

Consequently, I have little or no sympathy for the perpetrators of Abu Ghraib.

There is no evidence that the perpetrators of Abu Ghraib were even aware of the existence of the Yoo memos or the approved protocol for the CIA coersive interrogation program. The sexual perversions perpetrated at Abu Ghraib were not part of either the memos or the program.

At trial, the perps tried to claim that they got their ideas from others. However, they could neither name nor even describe these mystery men. In reality, the ring leader of this groups of perps was a sick f--- who had previous experience doing this in civilian prisons.

The job of a commanding officer is to command, supervise, instruct and discipline his or her command. The officer is just as responsible for the conduct of his troops as the troops themselves.

During the Persian Gulf War, I discovered one of my squad leaders abusing his troops by taking the time to inspect and talk with my soldiers. I prosecuted him under Article 15 of the UCMJ and made it clear to him that leaving the service would be a good idea or I would make his life miserable. He took the good advice and left.

There is no excuse for Karpinski not knowing about what was going on under her command. It appears that her entire officer chain of command had taken a vacation and let their command run amok. This is one of the worst dereliction of duties of which this former Army infantry officer has ever heard. The officers and NCO's starting at that platoon and through Karpinski should have been relieved and courts martialed.

If Karpinski had any honor at all, she would have taken responsibility and resigned immediately for the good of the service. Instead, this pathetic excuse for a REMF officer tried to pawn off her responsibility on others. Please do not make excuses for this disgrace to the Army.

Posted by Bart DePalma

You neglect or fail to mention Taguba, and his report -- and the odd constraints imposed upon him in order to keep his investigation away from the chain of command.

You also neglect or fail to mention that there were lower level officers named, and reprimanded -- but not courts-martialed, even though they were identified as directly witnessing, ordering, and participating in the Abu Ghraib tortures, and were in immediate command over such as Graner.

Your hero Bushit himself admits and confirms that the "Principles" committee -- which included Cheney and Colin "Charater Reference" Powell -- did all that is said they did concerning the planning of torture, and the he himself approved it.

Thus your anti-American scum-hero Bushit himself refutes your lies, Bart.

It is well deserved, Bart, the torture of your twisting in the wind while continuing to tell the same blatant bald-faced lies in the teeth of the hard evidence refuting those lies.
 

Bart barks:

". . . . Abu Ghraib provided an enormous propaganda coup and recruiting tool to the enemy, extending the Iraq War at least two years before we won over the Sunni and costing hundreds of US and thousands of Iraqi lives."

That's correct, Bart. And I've been pointing to the fact, since the news about Abu Ghraib broke, that it was -- and Bushit both admits and affirms this fact -- a voluntary handing of a moral victory to bin Laden himself by Bushing and his criminal enterprise, which increased the number of terrorists, and therefore undermined national security, and therefore directly violated the oath Bushit mouthed as a joke during inauguration.

In short: torture is a war crime that cannot be made legal. Bushit admits approving it, nonetheless -- which of course means he signed his name to the papers doing so -- and thus admits to committing a felony. Not being a misdemeanor (which is the worst a blowjob could be, so long as no one dies as consequence), a felony is a High Crime.

As for you and your friends and relatives serving in Iraq: participating in and actively endeavoring to further a crime against humanity -- as was and continues to be the illegal invasion and occupation of Iraq -- is not something to boast of for those who actually believe in the rule of law, and the ideals for which the US is said to stand.

And being a sucker on that point is not an excuse, any more than is ignorance of the law.
 

Ben Davis gives an impressive laundry list of statutes and articles with which to prosecute the torture chain of command.

But the easiest, simplest and most powerful method was not mentioned: Misprision of Felony.

Otherwise Ben's cry of the heart was appreciated. To paraphrase a famous sentence: the temple of American Law needs to be re-consecrated; it has been badly defiled.

Yoo can be viewed as simply a careerist, sorely lacking in imaginative powers, who ignored law and conscience, to deliver the product requested of him. That's bad but not enough to lose tenure.

Or one can look at the torture photos again if one can bear it, recall to mind, the degradation of our legal system and realize that Yoo was an architect, a minor architect, but an architect of this abominable structure. Then how could any self-respecting law school, much less Boalt Hall retain him for an instant?

But wait till all the facts are out. We are still partially in the dark.
 

Michael --

"Ben Davis gives an impressive laundry list of statutes and articles with which to prosecute the torture chain of command.

"But the easiest, simplest and most powerful method was not mentioned: Misprision of Felony."

Detail this please.

"Otherwise Ben's cry of the heart was appreciated. To paraphrase a famous sentence: the temple of American Law needs to be re-consecrated; it has been badly defiled."

He stimulated both fury and tears.

"Yoo can be viewed as simply a careerist, sorely lacking in imaginative powers, who ignored law and conscience, to deliver the product requested of him. That's bad but not enough to lose tenure.

"Or one can look at the torture photos again if one can bear it, recall to mind, the degradation of our legal system and realize that Yoo was an architect, a minor architect, but an architect of this abominable structure. Then how could any self-respecting law school, much less Boalt Hall retain him for an instant?

"But wait till all the facts are out. We are still partially in the dark."

According to Keith Olbermann's report, Addington, Haynes, and Gonzalez, all when acting as counsel to their higher ups, in Gonzalez' case Bushit, not only visited Abu Ghraib but also witnessed their methods being applied.

We already knew that Miller and Rumsfeld stopped in to tour demonstrations of their handiwork.

What sort of "politically" idiology, other than criminality hiding behind that term, could possibly not only knowingly approve war crimes, but then witness the consequences? Where in hell did they get their idea of what the US is to be? -- and what in the hell is their view on that point? Succeeding where Nazi Germany failed?

And Jon Stewart showed a clip of Condi on some TV program, during the period covered, being asked whether the US tortures. She smilled and denined the US would ever do such a thing. During that same time, she chaired the committee which was engaged in formulating and establishing exactly that.

Perhaps its simply that the don't view the US as the US, so when they say the US "doesn't torture" they are telling a kind of truth -- because they certainly do torture.

So we now have the names of virtually all those at the top who planned and executed that which they knew to be war crimes. And the names of a number of them who then went to watch those war crimes being committed by those "few bad apples".

Yoo is clearly not the lowest-hanging fruit in the chain of command: it was he who provided the pseudo-legal cover, and that was key in that process.
 

Absolutely right on Misprision of a Felony. I have it in my article Refluat Stercus but did not include it in the list. It is on page 94 or so in this article at http://www.law.utoledo.edu/students/faculty/BDavis/articles/Refluat%20Stercus%20January%2030,%202008-Sandy%20Draft.doc. Thanks for bringing that to my attention.


Best,
Ben
 

Ben and Jnagarya

We can't wait for the international law community to come galloping to our rescue, Belgium's quirky universal jurisdiction law or not. We don't recognize ICJ's jurisdiction, we carefully exempted ourselves from the Inter-American treaty against torture, we have blocked through proxies the EU's parliament from acting on their own working group's report and our own Court is decidedly isolationist when it suits their purposes.

No, we are going to have to clean our own house. And we can go about it quite straightforwardly since the Principals Group's foreknowledge has come to light and Mr. Bush has effectively admitted he authorized what is known as torture.

With all things, it has to be a matter of timing and venue. Congress has essentially no power under legislative privilege to successfully bring the Executive to bay. That is, they cannot successfully gather the information they need. A series of cases including the one pending at DC Appeals has (and in the case of the one pending likely) severely set them back. That leaves the Article III judiciary. Here there is hope, but since the Court has dealt one stinging blow after another to the international law community, the best bet is not to proceed on CIL or treaty grounds. Those avenues will in all likelihood be unproductive. We might win in the lower courts, but there are 5 votes against us at the top.

We have our own domestic tradition of concern for the treatment of persons in custody, both in custodial treatment and interrogation methods. And it owes nothing to treaties or international standards. This may be the ultimate route to take.

Torture is the bright line test of our legal system and our political culture. We must not fail it.
 

". . . . we are going to have to clean our own house."

Agreed. And I've been there since 12/12/2000, and knowledge of the fact that the US's arms arsenal is such that no one can come to rescue for hostage situation in which we find ourselves.
And if you've seen my posts on the Second Amendment, you know I know that is not an option, or legitimate avenue.

"And we can go about it quite straightforwardly since the Principals Group's foreknowledge has come to light and Mr. Bush has effectively admitted he authorized what is known as torture."

This is the "best" debvelopment thus far: it reveals the near-full picture, and we have Bushits affirmation of the facts as reported, and his arrogant admission that he approved. At minimum, now, that conspiracy, or criminal enterprise, is now out in the open and visible to all.

There are so many fronts from which it must be confronted -- one of those is getting the media to stop the bullshitting and get back to reporting news instead of trash and ideological editorializing substituted for news.

And we must elect as many Democrats to Congress as possible; the House has done pretty much everything (except impeachment) demanded of it by the voters; but what they've done has largely been blocked in the Senate.

A Democratic majority can get things done which have been successfully obstructed.

International law isn't one of my areas of knowledge, so I don't know much of the politics, etc. But it is our gov't, thus responsibility to deal with it. There is much moral support for us doing it, all around the world, but that can't do much unless and until we get the ball rolling. Then their pressure on heir gov'ts can potentially have a helpful, constructive effect.

This is, not-so-by-the-way, a wonderful blog.
 

Torture is the bright line test of our legal system and our political culture. We must not fail it.

# posted by Michael

Agreed.

This is what I have as definition of "misprision of felony" --

at common law, the misdemeanor of observing a felony and failing to prevent it, or of knowing about a felony and failing to disclose the fact of its occurrence, or concealing the felony without any previous agreement with or subsequent assistance to the felon. "Mispirsion of a felony" should be distinguished from the crime of being an accessory before- or after-the-fact, which requires some agreement with the party committing the felony. See 217 A.2d 432, 433. The offense of misprision of a felony has not been accorded general recognition in the United States. Perkins & Boyce Criminal Law 576 (3rd ed. 1982). Today, in order to be guilty of the federal crime of "misprision of a felony," in addition to knowing about a felony and failing to disclose information about it, one must take an affirmative step to conceal the felony. See 38 F.2d 515, 517, 18 U.S.C. s. 4. Compare accomplice; conspiracy. Gifis, Law Dictionary, Second Edition (1984), at 297.
 

Michael,jnagarya,
I am seeing what can be done as citizens in my neck of the woods to get this to happen. Please continue whatever you are doing in your neck of the woods. It is what we do together that will make the difference.
Best,
Ben
 

"Michael,jnagarya,

"I am seeing what can be done as citizens in my neck of the woods to get this to happen. Please continue whatever you are doing in your neck of the woods. It is what we do together that will make the difference.
Best,
Ben

"# posted by Benjamin Davis"

After spending a bit of time on your website (the link upthread to the draft article doesn't work), and reading some of your writings there, I thank you for your accurately impassioned statement.

I'll no more be silent about this than I've been silent about the 2000 subversion and usurpation by the US SC, even though that almost ended several decades-long friendships.

I've been politically active against the corrupt and criminal for some 50 years (just turned 60), which began with civil rights when I first learned of Lincoln and his principle "Everybody equal before the law". In spite of all insults, etc., which continued during the Viet Nam era.

And during the Reagan/Iran-Contra era.

I'm not about to stop.
 

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