Balkinization: [Post No. 6] Yoo, Boalt, and Academic Fredom: Dean Edley Speaks Out

Comments:

One observation I would make is that Dean Edley is relying on a technicality, i.e., that Yoo was already tenured, took a leave of absence (in which he committed war crimes), and then returned to Boalt Hall.

In other words, Edley is treating this as if Yoo already had tenure, and the standard is that someone has to prosecute and convict him for war crimes before he can be fired.

But is that really the way to look at it? Didn't Yoo essentially take another job? Whether or not he actually resigned his post at Boalt, how long do "leaves of absence" last there? 4 years? 8 years? 16 years through a McCain Administration?

If the facts were that Yoo had a job at Boalt, then quit, went to the Bush Administration and committed war crimes, and came back and was given another tenured professorship before the school found out about the criminal conduct, would Edley claim that this conduct is protected by the "no firing except in the event of criminal conviction" provision? Doesn't that apply only to crimes committed WHILE the person is on the faculty?

I think he's just ducking the real issue here. They hired a guy out of the Bush Administration whom they later found out was a war criminal. That's just not the same as hiring a person and then determining whether an off-campus crime committed by a sitting faculty member justifies termination.

# posted by

Dilan : 2:28 PM

The dean fails to address the underlying question: Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Reasonable minds may disagree on that question, but no reasonable person is entiled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

# posted by

KipEsquire : 2:37 PM

Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Non-lawyer here but how would this compare to say a tenured professor of medicine who was found to have advised others to start a regimin of leeches to treat a diagnosis of cancer?

My understanding of this is that Yoo completely ignored the most relevant case history (Youngstown) - isn't this really pretty extreme malpractice?

# posted by

Unknown : 2:43 PM

Dilan's post raises an important point. Who made the decision to give Yoo back his job? Was Edley the Dean at that time?

Moving on to the substance, I think Edley is reading the academic standards far too narrowly. For one thing, it's not at all clear to me why those standards apply to a person who was not on the faculty at the time he committed the relevant acts. In fact, the standards (pdf) specifically state that "This listing of faculty responsibilities, ethical principles, and types of unacceptable behavior
is organized around the individual faculty member’s relation to teaching and students, to
scholarship, to the University, to colleagues, and to the community."

If Yoo was not then a member of the faculty, then it's not clear to me why those standards apply. For example (and it pains me to have to use such an example), I seriously doubt that Dean Edley would take such a position if he discovered that one of his faculty members had spent his leave composing the Nacht-und-Nebel decree.

In any case, the standards, including the one cited by Dean Edley, are not intended to be exclusive:

"The Types of Unacceptable Conduct listed below in Sections A through E are examples of types of conduct which meet the preceding standards and hence are presumptively
subject to University discipline. Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action if they also meet the preceding standards."

While Dean Edley quoted, but unduly limited, the standard for criminal conduct, he failed to mention the standard for academic conduct:

"Professors, guided by a deep conviction of the worth and dignity
of the advancement of knowledge, recognize the special responsibilities placed upon
them. Their primary responsibility to their subject is to seek and to state the truth as
they see it. ...

Types of unacceptable conduct:

Violation of canons of intellectual honesty, such as research misconduct ...."

My alma mater is not distinguishing itself on either side of this sorry episode.

# posted by

Mark Field : 3:38 PM

I guess I really should not be surprised that some people believe that John Yoo should be fired from his faculty post for his controversial views, or that the University of California should substitute itself for a Bar Disciplinary Committee or a court of law in considering whether Yoo's actions warrant disciplinary or even criminal sanctions.

No matter how damning the memoranda are, I don't see how that suspends due process in his case.

On the other hand, to some degree I think Dean Edley is dodging the question as to whether Yoo's actions are indeed a proper subject for Bar Disciplinary Proceedings at a minimum. I think a substantial question of ethics has been raised, regardless of the supposed "higher calling" of DoJ lawyers. He was furnishing advice as to which he could be in no doubt as to whether action would be taken on the basis of that advice.

But I would certainly to be sure that every point of procedure was observed to the letter in John Yoo's case, precisely because he stands for the proposition that procedural safeguards can be swept aside in the name of necessity. We extend procedural safeguards to the worst of us to protect all of us. That may seem trite, but well worth remembering in our zeal to hold the Bush administration accountable for its crimes.

# posted by

HenryFTP : 3:39 PM

I do not want to comment on Boalt's tenure rules. Rather, I would look at a situation where an attorney (law professor) in academia takes on a matter for a client, serving as an advocate for that client. That role differs from teaching law. So should tenured law professors who take on private clients be judged on continuance of their tenure by the nature of such private clients and the course of such private legal representation? My concern is that the obligations of an advocate differ from those of the law professor, subject of course to rules of professional responsibility. By serving as an advocate for the private client, the law professor may be performing one of the highest traditions of an attorney that law professors train. Might someone question a tenured law professor who takes on the defense of a criminal defendant charged with a heinous crime with strong evidence of guilt, utilizing skillful techniques to avoid a finding of guilty, and succeeding?

Yoo was serving as an advocate for the President not as a law professor. If his advice went beyond professional or ethical standards, then like any wayward lawyer punishment may be deserved. While many of us may strongly disagree with Yoo's advice, can we say what he did was clearly beyond the legal pale?

To the extent Yoo should be punished, his continuing as a law professor at Boalt may be greater punishment than if he were deprived of tenure for Yoo's memos will continue to follow him, especially as a law professor. I would be interested in what his students who are aware of Yoo's memos think of him as a teacher.

# posted by

Shag from Brookline : 3:43 PM

I do not think that Marty thought long enough about what Chris Edley just did. Consider the title of Edley's statement:

"The Torture Memos and Academic Freedom"

Not "In re John Yoo," not "Professor Yoo's Views of the Limits of Presidential Power in Time of War," not "On Some Memoranda Prepared by Professor Yoo While on Leave Working for OLC."

Instead: "The Torture Memos and Acdemic Freedom."

I have a hard time seeing how Edley could possibly have taken a harsher line on Yoo than he did by giving his letter *that* title...

# posted by

brad : 3:50 PM

Mark Field:

You raise a valid point, but in the interest of academic freedom I don't think the University should be the first to put John Yoo in the dock, precisely because he has repugnant views.

The rules you cite, however, do preserve the right of the University ultimately to take action if the Bar and the courts are too craven or too cynical or too complicit to do so.

Merely firing him simply permits him to skip down the road to a Pepperdine or other institution only too happy to give a chair to a hero of the radical right-wing movement. We will never purge ourselves of these ideas that enable acts so inimical to our Republic unless we confront them officially. How shameful would it be to forfeit jurisdiction to The Hague because of our refusal to hold our own accountable.

But there will be no catharsis if John Yoo is railroaded out of Boalt Hall by mob justice or even University justice, for the radical right would always term that a "kangaroo court" at best.

# posted by

HenryFTP : 3:58 PM

Henry, I agree that the Bar and the US Attorneys should be the ones pursuing Yoo. Where we disagree is that I think the University of CA has its own obligation to act.

Since your posts raise the issue, I want to state very clearly that Yoo should NOT be penalized for his views on torture (any more than Alan Dershowitz should). I consider the simple expression of his views well within the parameters of academic freedom, and it wouldn't matter to me that Yoo wasn't an academic at the time he expressed himself.*

But we're not talking theory here. Yoo's memos were speech acts. He intended that people act in reliance on them and knew that they would. That goes far beyond academic freedom.

Yoo, of course, deserves the full procedural rights due any member of the faculty. Of course, waterboarding him to confess would satisfy a sense of poetic justice...

*The issue of Yoo's intellectual dishonesty would continue to be important even in this context.

# posted by

Mark Field : 4:13 PM

Mr. Yoo did not just write a legal opinion - he was an architect of torture, war crimes and crimes against humanity.

Some of the pontificating about this has been disturbing. No one wants to point out the elephant in the room.

But there is simply no way to split hairs on this.

As others have pointed out, his employment has stipulations regarding termination in case of certain gross violations of the law or professional conduct.

There are a hundred ways till Sunday the university could dismiss him.

# posted by

Seth : 4:15 PM

My comments on the subject are on Prof. Balkin's "War Crimes" thread.

# posted by

Arne Langsetmo : 4:27 PM

With the Dean on record that Yoo offered "bad ideas" and "worse advice" in his government service, surely Yoo can't feel too welcome at Berkeley.

# posted by

mls : 4:39 PM

Shag from Brookline:

Yoo was serving as an advocate for the President not as a law professor. If his advice went beyond professional or ethical standards, then like any wayward lawyer punishment may be deserved. While many of us may strongly disagree with Yoo's advice, can we say what he did was clearly beyond the legal pale?

The MRPC might apply to Yoo's conduct (see, e.g. Rules 1.1, 1.3, and section 8)

Cheers,

# posted by

Arne Langsetmo : 4:40 PM

Mark Field:

Yoo, of course, deserves the full procedural rights due any member of the faculty. Of course, waterboarding him to confess would satisfy a sense of poetic justice...

No doubt. After all, it's neither assault, maiming, or torture. As an added bonus, anything he says can be used against him in a court of law provided that it's sufficiently probative (in the opinion of the prosecuting party).

Cheers,

# posted by

Arne Langsetmo : 4:46 PM

Well here's the comment I sent to the PEGC distribution list about Dean Edley's statement:

There isn't a doubt in my mind that there is probable cause to believe that a number of Prof. Yoo's memos written during his tenure at OLC represent criminal offenses pursuant to 18 USC 371 (conspiracy) regarding 18 USC 2441 (war crimes) and related statutes, but I don't think Dean Edley is doing anything more than stating a fact: those offenses have yet to be proved in a court of law.

I want to see Prof. Yoo prosecuted, but the evidence is that he was working for David Addington and Dick Cheney, who in turn were working for George Bush. One thing that must be avoided here is allowing the Bush administration to use Yoo as a fall-guy the way they did with the enlisted service members who were prosecuted for the torture and abuse of prisoners at Abu Ghraib. The bottom line remains the same for me -- we need to prosecute these people for their war crimes under US law, because that is what our laws and the Geneva Conventions require.

And in the event of a conviction, the lawyers among them should be disbarred from the practice or teaching of law for life.

*

Here are some relevant sections of the UNIVERSITY OF CALIFORNIA ACADEMIC PERSONNEL MANUAL:

* APM-015-II(E):

E. The Community

Ethical Principles. "Faculty members have the same rights and obligations as all citizens. They are as free as other citizens to express their views and to participate in the political processes of the community. When they act or speak in their personal and private capacities, they should avoid deliberately creating the impression that they represent the University." (U.C. Academic Council Statement, 1971) Types of unacceptable conduct:

1. Intentional misrepresentation of personal views as a statement of position of the University or any of its agencies. (An institutional affiliation appended to a faculty member's name in a public statement or appearance is permissible, if used solely for purposes of identification.)

2. Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty.

* APM-075-II-C(3):

University Service, Public Service, and Professional Service Teaching and research are the main responsibilities of members of the professorial series, but reviewers shall also examine the quality and quantity of the individual's contributions in the areas of University service, public service, and professional service as part of the assessment of an individual's overall performance. As a guide in evaluation, reviewers shall use APM-210-1-d(3) and (4).

* APM-210-I-d(3):

Professional Competence and Activity -- In certain positions in the professional schools and colleges, such as architecture, business administration, dentistry, engineering, law, medicine, etc., a demonstrated distinction in the special competencies appropriate to the field and its characteristic activities should be recognized as a criterion for appointment or promotion. The candidate's professional activities should be scrutinized for evidence of achievement and leadership in the field and of demonstrated progressiveness in the development or utilization of new approaches and techniques for the solution of professional problems, including those that specifically address the professional advancement of individuals in underrepresented groups in the candidate's field. It is responsibility of the department chair to provide evidence that the position in question is of the type described above and that the candidate is qualified to fill it.

* * *

# posted by

Charles Gittings : 4:52 PM

At the very least, I would urge Boalt alums to file a derivative-type suit against Dean Edley for his having diminished the value of their Boalt J.D.s by refusing to fire Yoo.

# posted by

Ginger Man : 5:22 PM

I have a few questions, which might just summarize the extended argument here.

They are:

1) Where does Dean Edley think that "very substantial evidence" of Yoo's wrongdoing will come from, if not from a "potentially chilling inquiry"?

2) Do we have any "case law", any instances in which professors (particularly law professors) were similarly situated?

3) What about the Boalt Hall Honor Code?

# posted by

Unknown : 5:49 PM

shag said:
Yoo was serving as an advocate for the President not as a law professor. If his advice went beyond professional or ethical standards, then like any wayward lawyer punishment may be deserved. While many of us may strongly disagree with Yoo's advice, can we say what he did was clearly beyond the legal pale?

I think this hits the nail on the head. In the absence of a conviction or formal professional censure, I don't think Yoo's tenure should be revoked.

Note that this is a position of principle; the left has taken it on the chin repeatedly from Horowitz and his ilk. One of the most brilliant people I have ever had the honor of working with, Nadia Abu El-Haj, has gone through the wringer over a similar (baseless) accusation of faulty methods. Rather than look for some sort of payback by using the same tactics on such an icon of the right, I have to stand by the idea that academic freedom is critical, and that petitions shouldn't trump peer review.

# posted by

PMS_CC : 5:59 PM

Although I applaud the Dean for addressing the issue I don't believe the analysis was complete.

A criminal prosecution is quite a different standard than the standard used to retain a law license.
Stated differently, conduct that clearly demonstrates unfitness to continue to practice law surely must disqualify an individual from teaching law. If John Yoo were stripped of his license, which he should be in my opinion because he is not fit to practice law, then he would surely have to be discharged from teaching regardless of whether he was criminally prosecuted or not...this man (and many others in the administration) should not have the honor of being referred to as an attorney…
Of course what my analysis means is that it is up to the bar to take away his license.

# posted by

H. Candace Gorman : 6:12 PM

Although I am a lawyer, I do not think that this is an issue about which to split legal hairs. Yoo didn't just express a horrendous legal opinion. He played an active role in TORTURING people. Does the word "torture" still have the capacity to shock anyone? Most of his victims were innocent (not that that matters), and some of them died as a result of having been tortured. The question isn't whether Dean Edley should fire him. The question is how he can enter the same building as him and expect students actually to sit in his classes and be judged by him.

# posted by

Henry : 6:29 PM

I was dismayed by the National Lawyers Guild's call for the dismissal of John Yoo. I also don't agree with the Dean's distinction between legal opinions and policy decisions. Neither did Telford Taylor and Robert H. Jackson at the end of WWII. They made clear that a lawyer operating in a position like the one in which Yoo found himself has serious responsibilities which, if violated, can cause him to forfeit his freedom. Surely I am one of his harsher critics, but I find the idea of a public pressure campaign inappropriate. John Yoo committed serious errors of judgmnent in the memos he wrote, but we still don't know the whole story. It may make his liability substantially greater, or it may contain mitigating circumstances. In any event, we also need to fully assemble the facts surrounding how they were commissioned and used. As I understand it, there is an internal DOJ probe. All of this needs to be sorted out calmly. In the end, it is less Yoo's opinions about the law that matter than just exactly how these memos came to be prepared and for what ends they were used. John also authored a substantial number of other memos that are not yet public. After January 20, 2009, I think we will find time to sort all of this out and come to some better judgments about Yoo.

# posted by

Scott Horton : 7:00 PM

I agree with everything Mr. Edley writes but he veers off when he declares that "Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders."

Sophistry.

Actually, that's not the right word.

Bullshit is the right word.

Does having a law degree somehow not make one a "decider?" Mr. Yoo reportedly took a VERY active role in promulgating his legal theories and getting them enacted.

Can anyone get a law degree, "advise" the executive branch to commit war crimes and then just say "I am merely the messenger".

It appears that many would only like to wait for further information on Mr. Yoo's actions only if they are being urged to action. But yet the same information we have now appears sufficient to state he was merely an "adviser."

# posted by

Unknown : 7:58 PM

I would very much like to ask Dean Edley:

What would Yoo have had to advise in order to exceed the boundaries of academic freedom?

I am horrified that torture does not appear to be enough. I apologize for sounding shrill, but what would be too much? Concentration camps? Rape? Medical experimentation?

Where is the line? And how can torture not be past it?

# posted by

Seth : 8:10 PM

By the logic of some on this blog, namely that one should wait until a courtroom verdict before a tenure review can be considered, Karl Adolph Eichmann could have taught at Boalt Hall from the day he presided over the Wannsee document "The Final Solution to the Jewish Problem" in 1942, until his conviction and the end of his appeals in 1962. Plenty long enough to retire at full pay, I guess.

When the tenure system is used to shield a war criminal, it becomes morally bankrupt in its own right. Mr. Yoo cannot, anyway, be prosecuted as long as the MCA of 2006 remains in effect. Those advocating that Berkeley do something instead, are looking for whatever scraps of justice are left in a country that no longer counts systematizing torture as a crime, and lets the President of the United States say in an interview, as he did today, that he fully approved of the techniques and the involvement of his senior advisers in the matter, because they had 'legal opinions that enabled us to do that'.

# posted by

ondelette : 8:22 PM

What is controversial in Yoo's actions? His flawed legal reasoning was an integral part of a process that robbed an unknown number of people of their human dignity and rights. He is not being judged simply for his views, but for the concrete suffering that those views created.

If Yoo were physically present in the torture chambers, if he personally waterborded people, would the Dean see his behavior as problematic enough to warrant dismissal?

If so, I fail to see the distinction between Yoo's role in rationalizing torture, the administrators who acted on his advice to order torture to be performed and the individuals who acted on those orders to carry it out.

If not, than it is hard to see Boalt Hall as having any meaningful ethical guidelines at all.

He suggests that an inquiry would be "potentially chilling". What, exactly, would it 'chill'? I would certainly hope that a law school might want to discourage its faculty and students from being involved in torture.

# posted by

Justaguy : 8:25 PM

TLOOCHG:

Although I applaud the Dean for addressing the issue I don't believe the analysis was complete.

A criminal prosecution is quite a different standard than the standard used to retain a law license.
Stated differently, conduct that clearly demonstrates unfitness to continue to practice law surely must disqualify an individual from teaching law. If John Yoo were stripped of his license, which he should be in my opinion because he is not fit to practice law, then he would surely have to be discharged from teaching regardless of whether he was criminally prosecuted or not...this man (and many others in the administration) should not have the honor of being referred to as an attorney…
Of course what my analysis means is that it is up to the bar to take away his license.

I agree with the first part; I disagree with the second.

There's no reason to insist on conviction in criminal court to hold that a person has violated the law; Boalt disciplinary proceedings are not criminal prosecutions, nor do we need the same rules and standards of proof.

But having seen plenty of non-lawyers being fine legal minds, I don't think I can insist that all law profs be licensed attorneys. They should be competent (and to Charles Gittings, I'd point out thta those criteria mentioned are those for appointment and/or consideration of tenure, but become less authoritative when tenure is being revoked).

As for alumni suing the school, fuhgeddaboutit....

Cheers,

# posted by

Arne Langsetmo : 8:40 PM

Talking Points Memo reports that Bush has acknowledged his war crimes, so Congress has its smoking gun and impeachment should be quick and easy:

Bush: Yeah, We Signed Off on Torture. So What?
By Paul Kiel - April 11, 2008, 6:03PM

ABC finally got a hold of President Bush to respond to its story that top administration officials, as members of the National Security Council's Principals Committee, had signed off on "enhanced interrogation" techniques in 2002 that included waterboarding. And Bush doesn't understand what the big deal is:

"Well, we started to connect the dots, in order to protect the American people." Bush told ABC New s White House correspondent Martha Raddatz. "And, yes, I'm aware our national security team met on this issue. And I approved."...

# posted by

Henry : 9:06 PM

What is always so upsetting about people like President Bush is that they simply find a lawyer who tells them what they want to hear - and then say "we could do it because the lawyers told us we could." Naturally, of course, lawyers who disagree are pushed out of the way to arrive at this.

Then we have Dean Edley saying Yoo is just an adviser. It's a perfect loop of people completely aware of what they are doing and manipulating the good faith and ethics of others to obtain their own ends.

Neither Bush nor Yoo should be allowed to use semantics to get away with war crimes.

# posted by

Seth : 9:28 PM

I have no particular interest in Yoo's association with the law school, but we all have an interest in the prosecution of war crimes. As Scott Horton has reminded us, the controlling legal precedent is United States v. Altstoetter.

The charge, in brief, is that of conscious participation in a nationwide governmentally organized system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law

# posted by

William Ockham : 9:29 PM

Imagine learning this framework from a man who's career is now defined by efforts to destroy it. Even if he is fully capable of teaching the material without slant—and no doubt he is—the question is whether he should be permitted to do so. Perhaps the protections of discretionary prosecution, academic freedom, and tenure should not affect the law school's discretion about what classes Yoo should teach. It would seem appropriate for Yoo to be relegated to elective courses or, if irony is desired, to international law and human rights law. Constitutional Law, however, is a course for our nation's mostsuperb constitutional scholars; surely Boalt has a better one than Yoo.

The objections to sidelining Yoo from teaching Constitutional Law are similar to those regarding whether his tenure should preserve his employment. Punishment, even for his actions, could chill the academe. My concern is that, without some academic repercussion, Yoo will escape scathed only in reputation, which, to read his op-eds of recent years, is not something he values highly. Criminal prosecution is extremely unlikely, termination appears unlawful (according to a memo from the Boalt dean, termination would require a criminal act, which would probably requrie a prosecution, if not a conviction, to trigger), and his reputation is only as valuable a target as he allows it to be. Thus, relegation away from first year students and out of the most coveted subject matter appears to be one of the only options. Further, concerns for students' education should be considered, as should the fact that no professor has a right to teach Constitutional Law, even with tenure.

Were I an admitted student to the Boalt class of 2011 I would ask not to be in Yoo's classroom.

More here: http://laxscrutiny.tumblr.com/post/31521610

# posted by

AustinTBG : 10:27 PM

There's a major problem with Chris Edley's argument. He assumes that Yoo was simply offering legal analysis, whether good or bad, for others who bear the onus of responsibility for acting upon it as they did. Yoo, in Edley's view, is shielded from that responsibility by his role as legal advisor.

Notice that it's exactly the position that Yoo and others in the administration have adopted in regard to the abuse of the Office of Legal Counsel - that an OLC memo, however perverse, immunizes everybody else in the government, giving them the green light to do anything the memo allows. The flip side of that position is the one that gives immunity to OLC lawyers because, hey, they're just offering legal advice. You wouldn't have any means to grant immunity across the government if you could not also immunize the lawyers writing those memos (just as medieval Popes would not have had the standing to sell indulgences if they were not treated as infallible).

Edley's problem is that Yoo was not just writing (terrible) legal analysis. He was writing legal analysis to order, as this article makes clear.

>>Between 2002 and 2003, the Justice Department issued several memos from its Office of Legal Counsel that justified using the interrogation tactics, including ones that critics call torture.

"If you looked at the timing of the meetings and the memos you'd see a correlation," the former intelligence official said. Those who attended the dozens of meetings agreed that "there'd need to be a legal opinion on the legality of these tactics" before using them on al-Qaida detainees, the former official said...

At times, CIA officers would demonstrate some of the tactics, or at least detail how they worked, to make sure the small group of "principals" fully understood what the al-Qaida detainees would undergo. The principals eventually authorized physical abuse...The small group then asked the Justice Department to examine whether using the interrogation methods would break domestic or international laws.

"No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about," said a second former senior intelligence official. "People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command."<<

In other words, Yoo was producing memos to authorize what the Principals wanted to have authorized, even when (as often) that meant tossing aside the law and methods of legal analysis. It wasn't legal analysis at all; it was wallpaper intended to cover up the bloodstains on the walls.

And if Yoo was in on the decision making (as many sources make clear, such as those cited by Philippe Sands), then he was part of a conspiracy to commit torture. His memos were produced in a vacuum; they were necessary in order to begin the planned torture.

If Edley wishes to excuse that as business as usual, then that's his business. But it's intellectually suspect to pretend, as he seems to, that it's impossible to distinguish between Yoo's case and instances where faculty are hounded because of their opinions or because of controversial works expressing controversial views. Yoo appears to have been part of a criminal conspiracy. That question is worthy of investigation by the University of California.

# posted by

: smintheus :: : 10:32 PM

In the absence of a conviction or formal professional censure, I don't think Yoo's tenure should be revoked.

Because it's not like teaching law is a profession? Carried on by, um, "professors"? With its own standards to uphold?

Gotta disagree with you on that one, PMS.

# posted by

Anderson : 10:38 PM

Make that: "His memos were NOT produced in a vacuum."

# posted by

: smintheus :: : 10:39 PM

Thus, relegation away from first year students and out of the most coveted subject matter appears to be one of the only options. Further, concerns for students' education should be considered, as should the fact that no professor has a right to teach Constitutional Law, even with tenure.

# posted by AustinTBG : 10:27 PM

This seems like an excellent idea. Someone should strongly suggest that he resign. If he refuses, he should spend the rest of his time as a professor cleaning toilets, if only figuratively.

# posted by

Bartbuster : 10:57 PM

The objections to sidelining Yoo from teaching Constitutional Law are similar to those regarding whether his tenure should preserve his employment. Punishment, even for his actions, could chill the academe.

By "chill the academe" do you mean that it might make people think twice before being involved in violating people's human rights?

I'm a grad student, and if his tenure were revoked, it wouldn't have a chilling effect on my work, because I'm not planning on torturing anyone in my academic career.

I am studying anthropology, which is being drawn into counterinsurgency and intelligence work through the Human Terrain program, and other initiatives. I hope that there would be severe repercussions for any anthropologist who knowingly participated in the brutalization of individuals through the course of their work. If there weren't, I don't see how there could be any meaningful conception of professional ethics.

# posted by

Justaguy : 11:22 PM

Are actual war crimes covered under academic freedom? If Yoo merely (merely) advocated war crimes as a professor, sure, you could argue that he should never be fired for that. But actually committing and facilitating war crimes as a member of the government? Slightly different, no?

If Yoo were an Iranian professor who wrote similar legal justifications for torture for the Iranian government, I don't think Boalt would have any compunctions about immediately firing him (or maybe they wouldn't have even hired him in the first place).

# posted by

zod : 11:56 PM

Because it's not like teaching law is a profession? Carried on by, um, "professors"? With its own standards to uphold?

Gotta disagree with you on that one, PMS.

That's fine, I can't win them all. :)

I just think the proper starting point is obtaining a conviction or having him disbarred. Then we can talk about why his tenure should be revoked.

My own opinion on the matter might change if had been making such poor publications while in the employ of the University.

I'm more concerned about the idea that we can or should try to bring Yoo to "justice" by revoking his tenure. If he's a war criminal, then prosecute him; revoking tenure will be delicious icing on the cake.

If petitions and public pressure campaigns become standard methods for removing one's political adversaries from their academic positions, academic freedom will be as quaint as the Geneva Conventions are to some people.

# posted by

PMS_CC : 12:57 AM

This is kind of a strange argument because if you asked Dean Edley if he would welcome back Yoo today as opposed to 2004...

...I believe Mr. Edley would have to demure on answering as the answer would almost definitely be "no" or "not if I could find away around it."

Therefore, what is this discussion really about? I think the academic freedom is a red herring. He's got Yoo, would rather not have him and the alternative is messy and fraught with questions.

# posted by

Seth : 1:26 AM

Let's compare this to a physician who gave technical guidance as to just how far the acts could go before the individuals being tortured would die or go insane. One who established protocols that "enabled" the torture to occur, but did not participate in it directly.

Would that physician be "only" offering "free speech"? Rather it seems to me there is a distinction between an abstraction and discourse that gives sanction and "shelter".

Yoo's "Memoranda" appear to be a critical step in providing legal protection for those who later acted on the "advice". Yoo knew his advice was not some simply exploration of philosophical positions in a Socratic give-and-take.

His behavior is what is at issue here. Because when one develops legal arguments for use in a policy it becomes a material act...just as a discussion of how to kidnap an individual can move from abstraction to a prosecutable case of conspiracy.

The formulators of the Final Solution at the Waansee Conference, although they never laid their own hands on the body of a single Jewish victim, certainly were doing more than expressing their "Freedom of expression".

I also have serious questions about how Yoo was offerred tenure after only a minimal period actually in residence at Boalt as an Associate Professor. It seems that he had spent one or perhaps two years there in the "trial period" of six...and subsequently has spent years on sabbatical in Washington DC working for the Bush WH. Then after he left that institution he became a visiting Professor in Chicago, Holland and Italy and at the American Enterprise Institute.

When I attended the UC there were scores of well-respected Associate Professors who had to leave because the University would not grant them a ONE YEAR sabbatical to do essential research within that 6-7 year evaluation period. Why was Yoo giving such lax residency/teaching requirements?

Why is Berkeley so generous with Dr. Yoo's leave policies such that he rarely has to actually teach students? And what requirements should be imposed to make sure that the institution obtains the teaching and other requisites expected from a tenured faculty member?

# posted by

cinnamonape : 3:44 AM

There is of course something to be said for the Dean's position: "Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met." What he's leaving out is very simple: There will never be such evidence without a full investigation.

UC was not a partner in the Freedom of Information Act suit that brought public release of the memos. It didn't even file an amicus curiae brief, so nearly as I can tell. Why not? Once generally reliable investigative reporters passed on reason to believe that they existed, UC should have been on the case five years ago, so as to publicly and promptly settle the question of whether one of their tenured faculty was abetting war crimes. If they had done so then, presumably it would be settled by now.

So long as those with the authority to make a decision refuse to look, evidence will never magically thrust itself upon them. But that doesn't mean that evidence doesn't exist, only that they're declining to look.

# posted by

Bruce Baugh : 4:12 AM

I agree that Yoo's tenure should not be terminated otherwise than in accordance with appropriate procedures.

Equally I agree that the issue is not Yoo's views per se but whether his conduct has fallen so far below the standard expected of counsel that he is not fit to practice law, let alone teach it.

This is essentially a matter for the regulators of the profession. Giving incorrect advice to a client can be excusable (thank goodness - otherwise we would all have problems) but there are cases where the duties of counsel to client have been so egregiously breached that discipline is warranted for the protection of the public.

I do not accept that the position of a lawyer in public service is in any way different to private practice save that having regard to the gravity of the matter the duty may be enhanced.

Sometimes one has to tell the client what he does not wish to hear even if the client is a cabinet member or the head of the executive branch.

Yoo ought to have put forward all the conventional authorities on the issues before advancing his own views and to have included appropriate warnings as to possible outcomes in both US and international law. He failed to do so. On such a serious matter this was a gross dereliction of duty.

# posted by

Mourad : 6:53 AM

I find this a tricky question, but also find myself in a fairly usual situation of being troubled with some of the flavor of the conversation.

ML says he is troubled with any "serious" threats to "the employment of a tenured professor." Is this some in practice absolute stance? What does "serious" means?

Also, I disagree with his descriptions with some of the links he provides to sorta provide the "other" side. The Crooked Timber post is worthwhile, particularly in its tentative conclusions, but what is so "provocative" about it?

The other one says right out that the person believes there is no "insufficient grounds to dismiss Yoo" and then points to the flaws with the strongest academic freedom arguments.

As to that, Dean Edley provides a passionate defense (putting aside the leave of absence issues) of an essential sentiment, tenure even for those that "offered bad ideas and even worse advice during his government service."

Many have pointed out that he did more than "offer" "ideas." That would be the core of "academic freedom." Mark Field says it nicely with the term "speech acts" which even Justice Douglas didn't think was always protected.

I find Scott Horton's talk of "serious errors of judgments" rather lame honestly (simply doesn't sound horrible enough given the circumstances), but I'm all for due process here and further investigation.

But IF it holds he was complicit in war crimes, it was not merely "opinion" involved, and criminal prosecution (lovely Catch22 there given Military Commission Act etc.) seems to me not the only thing required to revoke his tenure.

So, "academic freedom" ... too cute .. and "prosecution?" oh please. like that is likely with the deck Yoo himself played a role in stacking.

# posted by

Joe : 9:00 AM

I'm more concerned about the idea that we can or should try to bring Yoo to "justice" by revoking his tenure.

Oh, I don't think anything of the kind. If he loses tenure, he'll either go teach law at some place that embraces torture (a "Christian" law school perhaps), or else end his days on the payroll of the Olin Foundation or suchlike.

It's not about Yoo; it's about Berkeley.

While his bar association certainly should be investigating whether to disbar him, Berkeley has a responsibility to its students, and cannot afford to defer to another body its own evaluation of his professional and ethical fitness to teach future lawyers.

As I argued at length @ Unfogged & won't repeat at the same length here, a law professor has to be held to a different standard than an English or history professor. He's working in a glorified trade school, training people who are there to become attorneys -- i.e., people with high ethical and professional standards, people who are there to put their clients first.

At best, Yoo put his own pet theories of Article II supremacy first, and his client -- the United States -- last, not once but at least twice (the two torture memos we've seen).

At worst, he deliberately wrote a shoddy analysis to act as an OLC get-out-of-jail-free card for torturers and the high officials (we just this week learned HOW high) who gave them their orders.

Either way, Berkeley can and should start its process rolling on whether Yoo's actions require that his tenure be revoked.

The dean's failure to even understand this aspect of the question shows that he is, unfortunately, a hack, with no understanding of his duties and no loyalty to his school's students.

# posted by

Anderson : 10:28 AM

My own opinion on the matter might change if had been making such poor publications while in the employ of the University.

I'm puzzled by this argument. If Yoo was not in the employ of the University at the time, then why should those standards protect what he did?

# posted by

Mark Field : 11:03 AM

Recently Marty apologized to Jay Bybee and others for getting his facts wrong on when the memos were issued relative to Bybee's departure from OLC. He received some blog-back about why he felt obligated to do so given the acts involved. Here, he gets similar treatment for supporting Yoo's retention on academic freedom grounds.

I would like to focus on Bybee a bit. Regardless of what backchannels Yoo worked, it was Bybee who let the memos go through (unlike his successor, who repudiated them). His judicial nomination was approved as part of the Gang of 11 deal before his involvement was revealed.

I have followed Bybee's career on the Ninth Circuit closely. Indeed, I filed a complaint against him for failing to recuse from a case involving the responsibility under immigration law of a doctor or lawyer (I forget which) whose approval was necessary before torture could be applied. And I must say that his conduct during oral arguments has been judge-like, no more pro-government than (for example) Judge Tallman, and sometimes responsive to criminal defendants (as last week, when I observed him sitting with Judge Kleinfeld and Judges Canby or Goodwin).

Sitting in court, I found myself asking, if the opportunity arose, would I shake hands with him? And I had to say no, I was not ready to do so. But I was able to picture him not so much as an active evil-doer like Yoo, but as an ambitious lawyer who did what was expected of him as a Bushie long enough to get his judicial appointment. If anybody can shed any light on his personal advocacy for these policies, I would like to hear more.

It was my opinion back in Iran-Contra and again now that impeachment is the appropriate remedy for those involved in frustration of the constitution; we certainly wouldn't have had Elliot Abrams redux had he been impeached, and we might not have had so many people willing to go along with these extravagant theories of the unified executive. But assuming that impeachment would be appropriate for Jay Bybee, would it be moral to acquit him on grounds either that the Dark Siders would have put the policy through anyway or that his performance as a judge has somehow redeemed him?

# posted by

Anonymous : 11:03 AM

# posted by

Anonymous : 11:04 AM

Much has been written about whether John Yoo, BushCo's designated defendant, should be terminated by the University of California.

Since university faculty must be free to express unpopular opinions, it is particularly important that faculty not be subject to intimidation by popular opinion. Nevertheless, every university has a faculty code of conduct. Specifically, all universities recognize that professional and/or research misconduct is unacceptable.

It is not unusual for say a biochemistry professor who's on leave to an industrial and/or public laboratory to come under pressure from superiors to vouch for the efficacy and/or safety of an experimentaldrug -- many of millions of dollars are at stake.

In every respectable university it is "unacceptable behavior" for a faculty member to issue bogus research findings in support of an untruth. And, that is precisely the situation in which Professor Yoo found himself within the Bush Administration. And, he caved, i.e., he issued bogus research findings to supoort his superiors. A biochemist who did that would be fired from the University.

Are the standards at Boalt Hall so much lower than the rest of the U. C. System that the issuance of bogus research, even while on leave, can be tolerated by its professors?

# posted by

wigwam : 11:25 AM

Amazing. Amazing and appalling.

This thread sounds like a scene from "To Kill A Mocking Bird" rather than a respected legal forum.

I hate to disturb this old fashioned lynching party with burden of proof, law and evidence, but can anyone here offer even prima facie evidence of each and every element of an actual criminal charge against Professor Yoo for drafting his memorandum?

In a Combatant Status Review Tribunal, the military must offer a preponderance of evidence that the capture is a member of al Qaeda, the Taliban or an allied terror group.

In a Military Commission trial of a foreign al Qaeda terrorist, the military has to prove beyond a reasonable doubt each and every element of the criminal charges against the accused.

However, what is offered here against one of our fellow countrymen?

Evidence beyond a reasonable doubt of an actual crime? No.

Even a preponderance of evidence of an actual crime? No.

Any evidence at all of an actual crime? No.

Instead, the lynch mob here offers a fellow countryman less than the standard of proof necessary to detain a foreign terrorist as a POW, nevertheless the evidence beyond a reasonable doubt required to convict the foreign terrorist of actual war crimes.

How then is anyone to take seriously your complaints that we have not extended foreign enemy combatants enough due process when you would deny to Professor Yoo the due process already afforded foreign enemy combatants?

If you claim that Professor Yoo committed a crime, offer at least prima facie proof of every element of an actual crime or withdraw the claim and apologize.

If you claim that Professor Yoo erred in any of his legal opinions, specifically name the legal opinion, offer contrary legal authority and then show how this error violates a specific ethical rule of conduct or withdraw the claim and apologize.

It is bad enough that the lay people here are participating in this lynch mob. Any lawyers here making the same unsubstantiated claims should be ashamed of themselves.

# posted by

Bart DePalma : 11:44 AM

I taught at UCLA for twelve years. For what it's worth, the UC system and Regents are deeply corrupt. I don't mean they take bribes, I mean they have no concept of intellectual honesty of the sort that might put any constraint on their exercise of their own power or their ideas about how power should be wielded elsewhere. Despite the dean's posturing, they certainly do not care in any consistent way about the First Amendment or due process -- indeed, this university has argued in court that the First Amendment does not protect criticisms of itself, and that an employment agreement which the university itself calls a "contract" is not actually a contract and creates no rights for the employee. John Yoo is actually the perfect embodiment of the university's ethos, a poster child for their attitude.

# posted by

former UC faculty member : 12:01 PM

Bart, Mr. Upside Down Black is White Man:

No one has to offer proof as to why Yoo is imprisoned. Mr. Yoo is not imprisoned.

Instead, please offer proof as to why hundreds of people have been held in Guantanamo for more than five years without a trial.

Offer proof that would satisfy Bart DePalma.

Do you believe that we should hold Mr. Yoo in prison for years and years while the rest of us search for the proof you are asking for?

Do you UNDERSTAND THE DIFFERENCE between waiting in prison for years and years under indefinite detention and an academic debate?

I DIDN'T ASK YOU to spout off some rationalizing gibberish about what you think the law is. I AM ASKING if you think we should hold Mr. Yoo in prison while we investigate whether or not he's guilty.

Yes or no?

And YES, the allegations are quite severe, Bart. This man is alleged to have participated in war crimes. Surely this is as serious as the ALLEGATIONS against the detainees at Guantanamo. You do remember the word allegations, right?

That you can feign umbrage over the discussion of Mr. Yoo's tenure, but not feign umbrage over torture and indefinite detention is bizarre and sickening. That you can compare this discussion with Guantanamo is just mind blowing.

What is up with you? Do you not understand that one of those people being held could one day be you? One of your family? One of your friends?

You don't. Because you believe that if you were innocent and held by another country without charges that there'd be some kind of invasion by the U.S. military to rescue you.

Good luck with that.

# posted by

Unknown : 12:38 PM

If anyone wants to honestly understand the basis for believing that Yoo has committed a crime, they would do well to read Scott Horton's prior post here[1]. Yoo, acting at the behest of Cheney and Addingtion, cooked up a legal justification for a government regime of torture, cruel and inhuman treatment, and illegal detention. He knew, or should have known, that his legal opinions would lead directly to overt criminal acts.

I think it is a mistake to focus on Yoo because it allows the more significant criminal actors to run out the clock. Which is worse, Yoo in academia or Bush, Cheney, Addington, et. al. in the corridors of power?

[1]http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html

# posted by

William Ockham : 12:46 PM

Marty asks "whether there are other steps that members of, and institutions in, the academic community ought to take, apart from questions of tenure, if and when they come to believe that one of their own has engaged in official state conduct that was not only of very poor legal quality, but also egregiously harmful, with the possibility of some (but hardly all) responsibility for serious legal wrongdoing."

I am a tenured professor in another field, different university. I don't think he should be fired. I do think he should be shunned and actively marginalized.

However, it is important to attend to what Yoo himself says about his handiwork. As far as I know he has expressed a fee regrets about what went on above his pay grade but none about his own actions. She he come one day to repudiate the Memos that would be significant. So far no sign of that.

Beyond that Berkeley could make itself the center of the world for Yoo Scholarship, for study of the Torture Memos themselves, and for an understanding what went on during these wild, terrible years inside the legal regime of the Terror Presidency.

It could start by scheduling, staffing and teaching every year for at least five years a course called The Torture Memos (the phrase the Berkeley Dean used to title his statement) and invite Yoo to appear but not teach it.

Jay Rosen, NYU (www.pressthink.org)

# posted by

Jay Rosen : 12:55 PM

I like Jay Rosen's comment above. In fact, it is a brilliant idea. Shine some light on the memos, debate them, discuss them. If Edley believes in academic freedom, then what better way to celebrate it.

But I find that people like Mr. Yoo are often not very vocal or strong supporters of their supposed beliefs. I doubt Mr. Yoo would participate. He would find some reason not to. In truth, the only thing people like Mr. Yoo believe is that they don't have much regard for other people, themselves or their beliefs. Mr. Yoo would have no interest in debating the memos, because he has no interest in evolving his thought processes or even illuminating others on why he is right.

But even without Mr. Yoo, I believe Jay is right on target. Create such a record of scholarship on the memos that no one in the future will be left wanting for information.

# posted by

Unknown : 1:22 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 2:00 PM

william ockham said...

If anyone wants to honestly understand the basis for believing that Yoo has committed a crime, they would do well to read Scott Horton's prior post here[1]. Yoo, acting at the behest of Cheney and Addingtion, cooked up a legal justification for a government regime of torture, cruel and inhuman treatment, and illegal detention. He knew, or should have known, that his legal opinions would lead directly to overt criminal acts.

OK, here is Mr. Horton's argument:

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

In sum, Mr. Horton argues that United States v. Altstoetter held that it is a capital offense war crime for lawyers to err on questions of the law of war when it is predictable that the government will reply upon their advice to commit war crimes.

The problem with this argument is that United States v. Altstoetter never brought any such charge against the Nazi defendants. The

The Altstoetter indictment listed four counts:

1) Conspiracy to commit war crimes and crimes against humanity;

2) War crimes against civilians of territories occupied by Germany and against soldiers of countries at war with Germany;

3) Crimes against humanity, against German civilians and nationals of occupied territories.

4) The fourth count of the indictment charged seven of the defendants with membership in the SS, SD, or the leadership corps of the Nazi Party, all of which had been declared criminal organizations a year before by the International Military Tribunal.

Counts 2 and 3 do not apply to Yoo because there is no evidence that Yoo actually participated in any unlawful trials like the sham Nazi trials of enemies of the state.

Count 4 does not apply because last time I checked DOJ is not an unlawful organization like the Nazi Party or al Qaeda.

Thus, we are left with Count 1 - conspiracy to commit war crimes.

Criminal conspiracy has three elements:

1) a person agrees with any other person or persons that a course of conduct shall be pursued

2) The course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement

3) If the agreement is carried out in accordance with their intentions.

Let's apply these elements in a hypothetical conspiracy indictment against Yoo:

1) Yoo agreed with the President, Vice President and/or their subordinates including the CIA that the CIA Coercive Interrogation Program (CIP) shall be pursued.

2) The CIP necessarily amounted to a violation of the Torture or War Crime statutes by the CIA, a subordinate of the President and a member of the conspiracy.

3) Yoo personally intended CIA to carry out the CIP.

There is no evidence whatsoever to prove elements one and three. Indeed, Yoo's memo expressly denied that he was recommending that the President should pursue any course of action.

We can and have debated whether CIP amounted to a violation of the Torture or War Crime statutes. However, adding the term "necessarily violated" will make this element very difficult to prove because all Yoo needs to do is raise a reasonable doubt that the Torture or War Crime statutes are subject to multiple interpretations when applied to the facts of the CIP.

In sum, United States v. Altstoetter is inapposite to the claims against Yoo and there is no prima facie case that Yoo engaged in a criminal conspiracy to commit war crimes through the CIP. The accusations that Yoo is a war criminal are gross slanders.

# posted by

Bart DePalma : 2:03 PM

garth:

Your indictment fails from the outset because a lawyer's legal opinion as to the scope of the law of war is not in itself a war crime simply because it may differ from the interpretations of the prosecution or a court. Otherwise, the self appointed defense counsel of the Gitmo prisoners would be committing war crimes every time they filed a brief disagreeing with the military prosecutor or judge as to whether the law of war supports a charge against their clients.

For a conspiracy charge to succeed, Yoo had to have agreed with the President that the CIA should pursue the coercive interrogation program, that Yoo intended the CIA to implement this program and the program was necessarily a war crime.

# posted by

Bart DePalma : 3:32 PM

"Appalling." --Bart DePalma.

# posted by

Anderson : 5:00 PM

I hate to disturb this old fashioned lynching party with burden of proof, law and evidence, but can anyone here offer even prima facie evidence of each and every element of an actual criminal charge against Professor Yoo for drafting his memorandum?

In a Combatant Status Review Tribunal, the military must offer a preponderance of evidence that the capture is a member of al Qaeda, the Taliban or an allied terror group.

That "Bart" guy is fuuuuh-neeeee. Rrrriight. The military must offer a "preponderance of evidence" (obtained by torture, bribery [we paid bounties to Afghan warlords to round these folks up], etc., to themselves and convince themselves the people they've been holding are people they should have held....

Considering that Yoo probably had a hand in this miscarriage of justice, it is only fitting that he ought to be "convicted" based on "hearsay" evidence and unsupported allegations against him w/o benefit of presentation in court or any ability to cross-examine ... by a "preponderance of the evidence".

Cheers,

# posted by

Arne Langsetmo : 5:30 PM

Anderson:

"Appalling." --Bart DePalma.

Typo there: Should be:

"Appalling": Bart DePalma.

Cheers,

# posted by

Arne Langsetmo : 5:31 PM

So much legal reasoning. So little humanity. From UMKC legal department website, a few words to remember from Judgment at Nuremberg:

"The next day Janning testifies about the Feldenstein case. He tells that there was fear in the country. That Hitler told the people to lift their heads. That once the gypsies, Jews, and others were destroyed all would be well.

"Why did the educated stand aside? Because they loved their country. Afterward, they could change and go back to law. But, what was going to be a passing phase became a way of life. Janning was content to sit by during his trial until he realized the same arguments were being used in this trial in his defense that had been used in the Feldenstein trial. Janning denies that Germans were unaware of the exterminations. He says that all were aware of what was going on, maybe not the details, but only because they did not want to know the details.

"When the Tribunal renders judgment, all are found guilty and all receive life imprisonment. Judge Hayward affirms the value of a single human life, and the responsibility of the justices, and by implication the German people, for their actions and inaction.

"Judge Hayward later talks to Janning in his cell. Janning tells Judge Hayward that he truly didn't know, that he didn’t know that it would come to the mass executions. In a powerful moment, Judge Hayward tells him that it "came to it" the first time Janning signed the order for the execution of a man he knew was innocent.

The movie had an unusual undertone. Judge Haywood gives us the uneasy feeling that the German people never really came to terms with their guilt. That the need to forget was never truly preceded by an analysis and acknowledgement of guilt. This movie makes the point that Germany, at the time of the movie was made, was moving "beyond" the war a little too fast, ...

Shouldn't be too hard to substitute a few words to render correspondence to the current situation.

# posted by

andydelinjc : 5:34 PM

garth sullivan said...

1. Yoo was solicited to provide legal cover for the commission of war crimes.

2. Yoo agreed to participate in a conspiracy to commit war crimes with certain administration officials and others.

3. Yoo authored memos he knew or should have known would lead to the commission of war crimes.

4. Yoo's memos did lead to the commission of war crimes.

You offer no evidence to support allegations 1 and 2.

Exactly what criminal statute do allegations 3 and 4 violate? You appear to be making a negligence claim.

# posted by

Bart DePalma : 5:44 PM

andrew said...

So much legal reasoning. So little humanity.

May I take this as a concession that there is no evidence that Yoo committed a crime?

# posted by

Bart DePalma : 5:50 PM

From the directtor of our Department of Circular Reasoning Department:

Count 4 does not apply because last time I checked DOJ is not an unlawful organization like the Nazi Party or al Qaeda.

Cheers,

# posted by

Arne Langsetmo : 6:02 PM

1) Yoo agreed with the President, Vice President and/or their subordinates including the CIA that the CIA Coercive Interrogation Program (CIP) shall be pursued.

2) The CIP necessarily amounted to a violation of the Torture or War Crime statutes by the CIA, a subordinate of the President and a member of the conspiracy.

3) Yoo personally intended CIA to carry out the CIP.

There is no evidence whatsoever to prove elements one and three. Indeed, Yoo's memo expressly denied that he was recommending that the President should pursue any course of action.

Doesn't matter what his memo said. It matters what he intended. We don't require that murder defendants have expressed written proof of intent to kill someone, and if they had written a document to the contrary and produced that in court, we'd take it for what it was worth. Believe me, I think under most circumstances, the defence lawyers would suggest that such a document not be offered into evidence ... in fact it would tend to "prove" a bit too much. ;-)

Cheers,

# posted by

Arne Langsetmo : 6:09 PM

Bart: "Exactly what criminal statute do allegations 3 and 4 violate? You appear to be making a negligence claim."

BS, and the answer to your question is obvious:

18 USC 371 and every statute that Yoo attempted to subvert / nullify in the memo itself. See his memo on Geneva and 18 USC 2441 for more of the same.

# posted by

Charles Gittings : 6:57 PM

Bart believes that Yoo did not commit war crimes. And any proceeding that determines he did is (will be) wrong.

Therefore, Yoo did not commit war crimes. Also, any evidence you have of his guilt is meaningless. But any evidence of his innocence is valid. And there is no evidence, but if there is, it shows he is innocent.

Also, secret allegations against people rounded up for bounties from warlords and imprisoned indefinitely and tortured are satisfactory. But allegations against Yoo who lives a very comfortable and free life are slander.

Plus, we can't see the evidence against the detainees because it would endanger national security. And even if there was no evidence, we couldn't show that because it would endanger national security. Also if the government represents that the person is a danger, without any evidence, then that is satisfactory, but they will have a fair trial even though the government has a conflict of interest in incriminating itself.

And if Yoo is detained by a foreign country, which will never happen, but if it did (but it won't) then the U.S. will declare war immediately. And if Yoo is found guilty then it doesn't count anyway.

And if videotapes show up showing illegal torture by the U.S. then don't forget that two wrongs make a right and someone else did it too, sometime, meaning that holding yourself to lowest bar of humanity is a defense.

And don't forget Bush had to do it for national security reasons, but if other countries do it they are sick and should be invaded (and tortured).

# posted by

Unknown : 6:59 PM

For a brief diversion from the debate about John Yoo's criminal liability, a comment about his treatment by faculty and students at Boalt Hall that does not seem to have been addressed yet. Because of his undisputed actions as an attorney outside academia, he is about the worst kind of example the Boalt faculty can offer law students as a member of the profession. So it is not merely that he should not continue to teach a subject with such profound importance to our republican government as consitutional law, as some commenters have appropriately suggested above. He should be actively shunned by as many members of the Boalt Hall community as care about denying him any validity as a role model. The Boalt community should make life as uncomfortable as possible for him within the bounds of law and common decency, so as to encourage him to resign. Otherwise, we will have to wait for the felony conviction and dismissal from a tenured position that seems unlikely ever to happen, regardless of his actions justifying and enabling torture and the violation of laws and treaties.

# posted by

Refractor : 8:29 PM

This is actually a rather simple issue for the Dean. In order to work in a law library, including some not part of an ABA-accredited law school, one must be a lawyer, and licensced to practice law. The same standard, and more, apply if one is a professor at such a law school allowed to spread one's anti-Constitutional/anti-American disease to vulnerable students.

In short: if Yoo were disbarred, he would no longer be qualified to teach an an ABA-accredited law school, let alone hold tenure.

There is a difference between making an argument in defense of war crimes, on one hand, and on the other, endeavoring to make it appear legal -- torture cannot be made legal under the supreme law of the land as it stands -- part of the doing which requiring an abuse of power -- the DOJ making law instead of enforcing it -- and that overtly subverting actual rule of law, down to specific statutes. If it is found -- is there any question -- that his rationale was that which founded the unconstitutional authorization of the war crime of torture. then he is a participant in war crimes/crimes against humanity. That finding would be open-and-shut if it is found that his after-the-fact-of-torture-actually-being-authorized-and-implemented was intended to provide (belated) "cover" for that.

If disbarred, Yoo is properly booted. Or shall we after all approve the actual academic purposes of many of the atrocities committed by the Nazis?

# posted by

JNagarya : 9:27 PM

Face it, Yoo is a consigliere -- a hired gun who uses his legal expertise to help thugs.

Yoois a scumbag with no honor.

If my workplace hired him, I would resign in protest, in part because I wouldn't want my reputation sullied by any professional association with the little scumbag at all.

# posted by

The Fool : 9:30 PM

Reasonable minds may disagree on that question, but no reasonable person is entiled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

# posted by KipEsquire

Agreed. It is one thing to argue for torture in an academic setting, in which one is not establishing actual policy. It is quite another to write memoranda which expressly -- "intent," anybody? -- defend illegal actions which constitute war crimes, while hoping those memoes will be translated into actual actions which without question are war crimes.

By analogy: there is nothing is such as the First Amendment which says: "Journalists and other media professionals are exempt from the rule of law if, say, they steal a car. Though rarely stated, every right is inextricably entwined with a responsibility. That includes -- so rarely stated -- the right of free speech. One cannot knowingly endeavor to unconstitutionally "legalize" the war crime of torture against the higher law which establishes that it cannot be made legal without intent to do that being obvious.
.

# posted by

JNagarya : 9:42 PM

Types of unacceptable conduct:

Violation of canons of intellectual honesty, such as research misconduct ...."

My alma mater is not distinguishing itself on either side of this sorry episode.

# posted by Mark Field

Perhaps, Mark, Edley is calling attention to the academic standards also to point one to the bases on which to challenge his position, and thus refute it with relative ease. Perhaps he's looking for a "sense of the legal community" before acting.

# posted by

JNagarya : 9:46 PM

A typically egregious Bart Barfarama --

"I hate to disturb this old fashioned lynching party with burden of proof, law and evidence, . . . ."

# posted by Bart DePalma : 11:44 AM

No risk, Bart: you needn't hate because your disturbance is such that you manage to provide not a scintilla of "burden of proof, law and evidence relevant to the issue at hand.

Are you paid, Bart, or are you anti-American/-rule of law for free?

# posted by

JNagarya : 11:17 PM

# posted by

Mark Field : 11:31 PM

Advocating an unpopular position, regardless of how grossly offensive, say, urging violence against non-Caucasians, would and should First Amendment free-speech scrutiny under a tenure policy. So with Yoo on his torture memos (strictly as a policy or advocacy matter).

But a lawyer advising a county sheriff in the Texas that it's legal (regardless of how specious his reasoning) to shoot illegal immigrants because they are illegal immigrants ought be a different question. Is tenure intended to protect the latter? I hope not.

# posted by

McKinless : 12:03 AM

CORRECTION: Advocating an unpopular position, regardless of how grossly offensive, say, urging violence against non-Caucasians, would and should be protected by First Amendment free-speech protections under a tenure policy. So with Yoo on his torture memos (strictly as a policy or advocacy matter).

But a lawyer advising a county sheriff in the Texas that it's legal (regardless of how specious his reasoning) to shoot illegal immigrants because they are illegal immigrants ought be a different question. Is tenure intended to protect the latter? I hope not.

# posted by

McKinless : 12:07 AM

Refractor: "He should be actively shunned by as many members of the Boalt Hall community as care about denying him any validity as a role model. The Boalt community should make life as uncomfortable as possible for him within the bounds of law and common decency, so as to encourage him to resign."

I don't agree with all of that. I said above that Yoo should be shunned and marginalized, but I should qualify it. I meant intellectually shunned and intellectually marginalized. The faculty should be cordial in person to Yoo.

It should not be embarrassed to tell the public and teach students, "On these questions, there is John Yoo on one side, and everyone else on the other." (If that's the case.) If I were Edley I would have a link on the Boalt home page, "Questions about John Yoo? Click here" and I would add to that section as I found new questions and ways to answer them.

In Dean Edley's position, my goal would not be to get to him resign. I mean that would not be the ideal outcome. If he did resign and went to a right wing think tank that would be fine because he was acting like a hack with a right wing think tank when he did what he did. Students could learn from that. But it would not be ideal.

If he did resign and went to another law school, what's the real gain for the good guys in this war? Not much. Now Yoo's questionable legitimacy would have caused an observer to question the legitimacy of two law schools, rather than just Berkeley's.

Okay, if he winds up at Cleveland State he gets humiliated but Edley cannot count that as much of a plus.

An ideal outcome would be: Yoo remains a member of the intellectual community at Boalt, and by shunning him intellectually and by becoming the center of the world for Yoo scholarship (and beyond him the whole legal drama of the Terror Presidency) the faculty actually teaches John Yoo something, shows him where he lost the thread, and students learn a ton about the difference between dissenting and truly fucking up. So persuasive is the faculty that he eventually says he was wrong, repudiating the Torture Memos, which would undermine their future use, a positive in a sea of negative.

It's not that I think such an outcome likely. I rate it's probability at zero to six percent. But if I were a Dean (who is only a temporarilty heightened member of the faculty) a crucial consideration would be to leave in there the possibility of learning. When you do that you do right by the university.

One of the things I have learned as a professor: you never know who is going to take you up.

Cheers....

# posted by

Jay Rosen : 1:09 AM

Perhaps, Mark, Edley is calling attention to the academic standards also to point one to the bases on which to challenge his position, and thus refute it with relative ease. Perhaps he's looking for a "sense of the legal community" before acting.

I'd like to believe that you're right. But the fact that Edley interpreted the standards so narrowly (by omitting some and by unduly limiting others) leads me to believe otherwise.

# posted by Mark Field

My first concern is to extend to you my sincerest sympathies. And, of course my sharing with you my outrage.

My second is to suggest that he is at present on the defensive. At the same time, it is a glaring signal, in my view, that he labelled them "Torture Memoes" without qualifying quotation marks. Being a lawyer, and as lawyers work one word at a time, he knew what he was communicating.

I know nothing about his politics -- which should not enter into the calculations. But I do remember that "People's Park" was an "afforable housing" issue contesting a small bit of land U. Cal. was endeavoring to expropriate from community use. And that that state U., with Reagan's blessing, killing at least one, and blinded a private citizen/visual artist.

So I certainly recognize that U. Cal, a state university ostensibly serving the private citizenry of CA, acts quite independent of that "reality".

# posted by

JNagarya : 2:13 AM

Jay Rosen --

"I don't agree with all of that. I said above that Yoo should be shunned and marginalized, but I should qualify it. I meant intellectually shunned and intellectually marginalized. The faculty should be cordial in person to Yoo."

I like your post as a whle. But I would qulify that portion a bit more:

socially shunned as well; after all it's possible Yoo is itching to get his personal hand in on the imposition of torture, so inviting him to faculty parties might risk causing the party to careen in a direction more in keeping with his notion of "appropriate".

# posted by

JNagarya : 2:18 AM

Yoo was serving as an advocate for the President not as a law professor.
- posted by Blogger Shag from Brookline : 3:43 PM

Correction. OLC's client is the Law and the Constitution. The President is, in a limited sense, the A-G's client; he is in no way the OLC's client.

# posted by

AlanDownunder : 3:37 AM

Got here from Brian Leiter.
Maybe someone made this point upthread, but somehow I doubt it.
Yoo is a lawyer and a "professional" with titles and responsibilities in the public sphere outside. A professor of structural engineering cannot lose tenure after a bridge collapse, but he can lose his right to design bridges, at which point he can be fired from his university job.
An lawyer like an engineer is not only a scholar, but a practitioner. A professor of comp lit can't be disbarred.
Simple.

# posted by

D. Ghirlandaio : 9:27 AM

charles gittings said...

Bart: "Exactly what criminal statute do allegations 3 and 4 violate? You appear to be making a negligence claim."

BS, and the answer to your question is obvious:

18 USC 371 and every statute that Yoo attempted to subvert / nullify in the memo itself. See his memo on Geneva and 18 USC 2441 for more of the same.

Ah Mr. Gittings makes his appearance...

Here is your opportunity to make out your cojnspiracy cased against Professor Yoo.

Criminal conspiracy has three elements:

1) a person agrees with any other person or persons that a course of conduct shall be pursued

2) The course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement

3) If the agreement is carried out in accordance with their intentions.

Let's apply these elements in a hypothetical conspiracy indictment against Yoo:

1) Yoo agreed with the President, Vice President and/or their subordinates including the CIA that the CIA Coercive Interrogation Program (CIP) shall be pursued.

2) The CIP necessarily amounted to a violation of the Torture or War Crime statutes by the CIA, a subordinate of the President and a member of the conspiracy.

3) Yoo personally intended CIA to carry out the CIP.

There is no evidence whatsoever to prove elements one and three. Indeed, Yoo's memo expressly denied that he was recommending that the President should pursue any course of action.

We can and have debated whether CIP amounted to a violation of the Torture or War Crime statutes. However, adding the term "necessarily violated" will make this element very difficult to prove because all Yoo needs to do is raise a reasonable doubt that the Torture or War Crime statutes are subject to multiple interpretations when applied to the facts of the CIP.

Can you offer any actual evidence to prove this conspiracy charge? Please do not argue yet again that Mr. Yoo's guilt is self evident. Make your case!

# posted by

Bart DePalma : 9:40 AM

Someone said Yoo cannot be a law professor in an ABA-accredited law school if he is disbarred. I'm not sure that's true. I don't think bar membership is required to be a law professor, so I'm not sure disbarment has any effect, either. Bar membership is to practice law. Law professors are part of an academic enterprise, albeit one with a mission of training for a profession. I don't have the ABA Standards at hand, but I don't think bar membership is a critical factor for a law professor. Of course, being disbarred would damage him further in his reputation and cut off lots of activities successful, high-profile professors engage int.

# posted by

LawandMorality : 10:18 AM

Putting aside the standards for a criminal proceeding, a civil suit, a tenure decision by a university, and the like, there is the matter of peer review and public opinion. As more of Yoo's memos surface and are commented upon by professional peers, pundits and others, the public gets more and more information to make judgments not only of Yoo but of the Bush Administration, much of which information had been withheld from the public for much too long. What has been released to date may be only the tip of the political iceberg.

Meantime, Yoo defends his position with books, columns, etc. But it gets more difficult for him to overcome information subsequently released. This may be Yoo's career: defending himself. But Yoo may trap himself as the fault guy and in fact he may be prepared to fall upon his sword to protect the Bush Administration, which may not be in a position to reward him. From the standpoint of the public, more information is needed regarding the roles of Bush Administration officials in the memos of Yoo. To prevent himself from being the fall guy, Yoo may have to 'fess up with details of the roles of others in his memo-making on torture.

The standards of peer review and especially public opinion are not so demanding. So I commend this Blog with this and subsequents posts for permitting a broad discussion that will assist in informing the public even if Yoo retains his tenured position and is never prosecuted. In fact peer review and public opinion may be the greater punishment for Yoo.

Over time Yoo may think he can recover from all this. I think of Richard Nixon who lived for many years following his resignation in 1974 and his efforts to restore his reputation. While Nixon may have succeeded to a limited extent, even his death failed to wipe away his faults. Perhaps in a few years we may think: "Yoo, we hardly knew you." But Yoo's torture memos may end up as self-torture, unless he seeks redemption.

# posted by

Shag from Brookline : 10:31 AM

Bart, this is what the law says:

18 USC § 371 (Conspiracy to commit offense or to defraud United States)

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. * * *

IMT Charter (London 1945)

Article 6.

* * * The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace * * *

(b) War crimes * * *

(c) Crimes against humanity * * *

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Article 7.

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

# posted by

Charles Gittings : 10:40 AM

As I read all this, I wondered how stressed Yoo is over the fact there are serious and substantial discussions of whether he has overcome the strong barrier to termination from a university ordinarily provided by the possession of tenure and concepts of academic freedom. Smaller fry go through the tortures of the damned (poor phrase, I suppose) imagining that someone, someday, will accuse them of something that could affect adversely their massive security; their solution is to be generally craven. Has anyone thought of the irony of the comparative fate of the former Berkeley law dean, who resigned quickly after revelation of a single invasion of another's bodily integrity, while drunk? It is interesting how we measure moral weights. Yoo invaded many bodies secondarily, by wielding words. It's the old difference between the treatment of a bank robber and a robber baron. This is not to defend the first, but to ask how one might compare the two--in the Berkeley context.

# posted by

LawandMorality : 10:47 AM

Bart's arguments are not to be trusted (surprise).

There is no evidence whatsoever to prove elements one and three.

False. Conspiracy can be, and typically is, proved by circumstantial evidence. Conspirators, by their very nature, do not typically sign onto an Agreement of Conspiracy that can be used as direct evidence against them in court.

Philippe Sands' new book Torture Team, which has been excerpted in Vanity Fair this month, itself provides circumstantial evidence that Yoo was called upon to provide OLC "get out of jail free" memos to excuse and expand upon existing practices.

As for intent, that can be inferred by the jury, as intentions usually are.

# posted by

Anderson : 11:44 AM

Mr. Gittings:

Try to stay on topic and stop cutting and pasting to various international laws.

I already provided you the elements of conspiracy and added the ultimate facts you allege:

1) Yoo agreed with the President, Vice President and/or their subordinates including the CIA that the CIA Coercive Interrogation Program (CIP) shall be pursued.

2) The CIP necessarily amounted to a violation of the Torture or War Crime statutes by the CIA, a subordinate of the President and a member of the conspiracy.

3) Yoo personally intended CIA to carry out the CIP.

What I am asking you to do is offer prima facie evidence of each and every element of conspiracy to prove your case. This is what you would need to survive a motion to dismiss if you were a prosecutor.

Prove your case or apologize for slandering Professor Yoo.

# posted by

Bart DePalma : 12:21 PM

anderson said...

BD: There is no evidence whatsoever to prove elements one and three.

False.

Conspiracy can be, and typically is, proved by circumstantial evidence. Conspirators, by their very nature, do not typically sign onto an Agreement of Conspiracy that can be used as direct evidence against them in court.

OK, what is your circumstantial evidence? There is no third party testimony, there is no documentary evidence and there is no admission by Yoo.

All you have is a memorandum of law which no one to date has offered legal authority to rebut and which expressly states that Yoo is not taking a position on the interrogation policy.

Philippe Sands' new book Torture Team, which has been excerpted in Vanity Fair this month, itself provides circumstantial evidence that Yoo was called upon to provide OLC "get out of jail free" memos to excuse and expand upon existing practices.

Really?

Offer excerpts of admissible evidence from Sands' book which you contend proves elements 1 and 3 of the hypothetical conspiracy indictment.

Folks, I feel like Professor Kingsfield trying to get 1Ls to think like lawyers. You lawyers should already know the basics of proving a criminal case. Would you really make these unsupported arguments in front of a real court?

Produce your evidence!

# posted by

Bart DePalma : 12:29 PM

Bart,

Oh, AS IF the applicable laws are "off topic", or the IMT Charter is not a valid treaty in force for the United States, which, together with the Hague and Geneva conventions, is the most authoritative expression of the laws and customs of war extant; or as if misrepresentations of those very laws were not the only basis of your own claims regarding what is or isn't permissible in war. 18 USC 371 is what defines the elements of conspiracy, not your gratuitous sophistry, and it's a little difficult to imagine what part of the language "in any manner or for any purpose" would be unclear to you. There is enough evidence to convict these people on the strength of their own public record: the memos and documents themselves are prime evidence.

# posted by

Charles Gittings : 1:30 PM

"Meantime, Yoo defends his position with books, columns, etc. But it gets more difficult for him to overcome information subsequently released. This may be Yoo's career: defending himself. But Yoo may trap himself as the fault guy and in fact he may be prepared to fall upon his sword to protect the Bush Administration, which may not be in a position to reward him. From the standpoint of the public, more information is needed regarding the roles of Bush Administration officials in the memos of Yoo. To prevent himself from being the fall guy, Yoo may have to 'fess up with details of the roles of others in his memo-making on torture."

Based upon his confident -- but which will become increasingly desperate -- self-justifications, and the interview with Feith who, when asked about all the screw-ups pointed the finger of blame away from himself and at Rumsfeld -- I think the weael Yoo will in out: if the pressure and perceived jeopardy is sufficient, he will name names in effort to save his own ass.

Yoo, and every other member of the Bushit criminal enterprise, have as their ultimate foundation irresponsibility. Push come to shove, individual irresponsibility is the only law for them. Recall: it wasn't Bushit's order that caused US bombs to fall on Iraq; it was, rather, Saddam Hussein's alleged actions that gave that order.

It's always "someone else's" fault; and in order for that excuse to have any weight, the "someone else/s" must have relevant names.

So Bushit admits approving the war crime of torture, presuming that absolves them of liability because Yoo absolved him of the requirement to obey the Constitution and laws of the United States. Seems to me the picture is near coplete, and the embrace of the law includes within it also Yoo.

Now let's hear him whine about "everyone else does/did it," like a stuck war criminal.

# posted by

JNagarya : 2:04 PM

Conspirators, by their very nature, do not typically sign onto an Agreement of Conspiracy that can be used as direct evidence against them in court.

Damn you, Anderson, for making me blow Dr. Pepper through my nose.

Also, Bart, the "one or more of such persons" requirement doesn't mean only Yoo can have the CIA carry out the program. We have sufficient evidence now that the other parties to the conspiracy wanted (and ordered) the CIA to do so.

# posted by

PMS_CC : 2:22 PM

Conspirators, by their very nature, do not typically sign onto an Agreement of Conspiracy that can be used as direct evidence against them in court.

Damn you, Anderson, for making me blow Dr. Pepper through my nose.

Also, Bart, the "one or more of such persons" requirement doesn't mean only Yoo can have the CIA carry out the program. We have sufficient evidence now that the other parties to the conspiracy wanted (and ordered) the CIA to do so.

# posted by PMS_Chicago : 2:22 PM

In addition, we have it, as public statement, from the highest of authorities -- Bushit himself -- that the conspiracy (1) occurred, and that (2) he approved it and approved of it.

And it's irrelevant as a matter of law whether he viewed or views it as being an illegal conspiracy (we're to trust a liar's veracity as to the truthfulness of his excuses?), or even knows the meaning of the word.

As obviously, in so doing, he is acting upon the absolving/s from the rule of law to which he was "induced" by the author of that unconstitutional absolving: Yoo.

# posted by

JNagarya : 2:42 PM

charles gittings said...

Bart, Oh, AS IF the applicable laws are "off topic", or the IMT Charter is not a valid treaty in force for the United States, which, together with the Hague and Geneva conventions, is the most authoritative expression of the laws and customs of war extant; or as if misrepresentations of those very laws were not the only basis of your own claims regarding what is or isn't permissible in war.

We have a war crimes statute which enforces war crimes law domestically. For the sake of this discussion to keep you from wandering off topic again, assume that the CIA coercive interrogation program violates the war crimes statutes and you have proven the second element of conspiracy.

18 USC 371 is what defines the elements of conspiracy, not your gratuitous sophistry, and it's a little difficult to imagine what part of the language "in any manner or for any purpose" would be unclear to you. There is enough evidence to convict these people on the strength of their own public record: the memos and documents themselves are prime evidence.

We were discussing conspiracy to commit war crimes, not the 18 USC 371 conspiracy to defraud the United States.

Before we move onto this new charge, are you conceding that there is insufficient evidence to prove that Yoo conspired to commit war crimes?

As to 18 USC 371, use this link to the DOJ manual to draft up the ultimate facts proving each and every element against Yoo.

# posted by

Bart DePalma : 3:42 PM

pms_chicago said...

Also, Bart, the "one or more of such persons" requirement doesn't mean only Yoo can have the CIA carry out the program. We have sufficient evidence now that the other parties to the conspiracy wanted (and ordered) the CIA to do so.

A prosecutor will have to prove that Yoo himself had the intent that CIA carry out this program.

We have evidence that President Bush and his subordinates ordered the program. However, you lack any evidence that Yoo agreed with Bush or his subordinates that the CIA should carry out this program. Indeed, I do not recall any evidence that Yoo even knew about this program when he wrote the memos.

# posted by

Bart DePalma : 3:46 PM

Bart,

"We were discussing conspiracy to commit war crimes, not the 18 USC 371 conspiracy to defraud the United States."

You are simply amazing. 18 USC 371 applies when "two or more persons conspire either to commit any offense against the United States, or to defraud the United States" (emphasis added).

As for the specific offenses involved in the CIA program, those potentially include:

18 USC 2441(c)(1), grave breaches of Geneva.

18 USC § 2441(c)(2), violations of Hague IV annex ("HR") art. 23[h].

18 USC § 2441(c)(3), violations of Geneva Commmon Article 3.

18 USC § 113(a)(2), assault with intent to commit any felony.

18 USC § 113(a)(3), assault with a dangerous weapon.

18 USC § 113(a)(4), assault by striking, beating, or wounding.

18 USC § 113(a)(5) simple assault.

18 USC § 1201, kidnapping.

18 USC § 1505, obstruction of proceedings before departments, agencies, and committees.

18 USC § 1509, obstruction of court orders.

18 USC § 1512, tampering with a witness, victim, or an informant.

18 USC § 1519, destruction, alteration, or falsification of records in Federal investigations.

18 USC §§ 2340-2340B, torture.

# posted by

Charles Gittings : 4:58 PM

Mr. Gittings:

BD: "We were discussing conspiracy to commit war crimes, not the 18 USC 371 conspiracy to defraud the United States."

You are simply amazing. 18 USC 371 applies when "two or more persons conspire either to commit any offense against the United States, or to defraud the United States" (emphasis added).

This is getting VERY tiresome. You quoted language from the latter offense of defrauding the United States. Precisely which type of conspiracy are you alleging and where is the evidence to prove each and every element???

As for the specific offenses involved in the CIA program, those potentially include...

I have conceded for the sake of this discussion that the CIA program constitutes a violation of law precisely to keep you from cutting and pasting various statutes to avoid providing actual evidence of criminal conspiracy.

Either offer your evidence or concede the point.

# posted by

Bart DePalma : 5:53 PM

Bart,

What bunk.

A) I quoted a single sentence from 18 USC 371 that defines BOTH types of conspiracy. It's absolutely clear I'm speaking in the context of a conspiracy to commit offenses.

B) You aren't confused about the facts, and I'm not confused about you. There's plenty of evidence at this point, and it's equally evident that you're willing to misrepresent or ignore every bit of it regardless of the facts.

C) I'm not conceding a thing to you, nor am I avoiding anything --

I'm just not going to play along with your dishonest posturing.

# posted by

Charles Gittings : 7:58 PM

I feel I should reread John Kennedy Toole's "A Confederacy of Dunces" to get a better handle on Yoo and you know who (sic). And poor Alberto (Not So Speedy) Gonzales cannot get a job with a DC law firm. Presumably George W would not nominate him as a federal judge. Maybe the Justice Department will outsource monitoring a corporation's activities as with Ashcroft recently on a no-bid basis.

# posted by

Shag from Brookline : 8:56 PM

Charles:

It is plain you have no evidence of any crime and lack the class to admit it and apologize for your slander of Professor Yoo.

I have made my point.

Go back to the lynch mob.

# posted by

Bart DePalma : 9:42 PM

Bart wrote: This is getting VERY tiresome.

You don't say.

Bart, your minstrel act is as simple minded as it is tedious. If I showed you videotape of Bush performing torture on a detainee, "So, where is your evidence?" would be your predictable response.

Fortunately, or unfortunately, you don't seem to be bright enough to know when you've been throttled.

# posted by

mattski : 9:50 PM

Why should the principles of academic freedom preserve a professor's freedom to advocate torture outside of the academy? No one is talking about firing Yoo for writing an article.

# posted by

AustinTBG : 10:15 PM

Bart,

What's obvious is that you selectively ignore or misrepresent any fact that conflicts with your unreasoning prejudices. There's simply no reason for me to humor you.

As for your "lynch-mob" accusation, I've never called for anything but an indictment and a fair trial according to law, and if you claim otherwise you are a liar.

But I do have one question for you:

Are you a Christian?

# posted by

Charles Gittings : 10:24 PM

["Bart"]: Indeed, I do not recall any evidence that Yoo even knew about this program when he wrote the memos.

Wow. "Bart"'s got the "Gonzales-Condi" flu. Seems to be endemic in maladministration flacks. The only question I have is who read "Bart" into the program, and when.

Back on planet Earth: Yeah, surely co-inky-dence that Yoo would choose to opine academically on this very topic at just the same moment as the maladministration was facing heat and casting around for a CYA letter. And of course, they didn't tell him what was going on, which accounts for the fact that he had to guess as to what might be questionable, like waterboarding, slaps, stress positions, etc.. You got that "context" from his upbringing, I'm sure.

Cheers,

# posted by

Arne Langsetmo : 11:38 AM

"Bart" DePalma:

We have evidence that President Bush and his subordinates ordered the program.

Good. CWITMFN?

Cheers,

# posted by

Arne Langsetmo : 11:50 AM

So Yoo admits to writing memos that alibied war crimes by the Bush cabal. But the only one that can prosecute Yoo is the person he enabled to commit these crimes. So no prosecution, no crime.
So even though the facts are not in dispute, Edley will not fire him? Pretzel logic.
I suppose noone would stop USC from hiring OJ Simpson to coach since he was acquitted.

# posted by

moondancer : 2:17 PM

Bart blurts a confession:

"We have evidence that President Bush and his subordinates ordered the program."

Yes, we have evidence -- if, that is, Bushit wasn't lying yet again.

Even if he was, though, we have evidence in the form of Yoo's memoes; and the timing of those ties in directly with the request of those subordinates -- and Bushit -- for a fraudulently fig-leaf to give the appearance of legality
to "the program," which program was torture, which cannot under any circumstances be made legal -- Yoo's morally superior moral bankruptcy-founded enthusiastic effort to do so notwithstanding.

# posted by

JNagarya : 3:33 PM

This is slightly wearying. Not from the quality of the commentary which is, as usual, splendid.

But from a sense of hopelessness I have. Or maybe helplessness. Learned helplessness like we all have from eight years of lawless behavior.

Academic freedom was intended to primarily protect speech and thought. Not necessarily any acts commissioned by an academic. What Yoo did that was objectionable was not his thoughts on his memorandums, both classified and unclassified, but the act of his cranking out legal "products" on demand from his superiors at OLC, his participation in a process that at its heart was deeply contemptuous of law. He was told what to produce and he dutifully produced . He was like a clerk to a Justice. The thoughts were not his and thus subject to considerations of academic freedom. The thoughts were of his superiors and he had a moral choice whether to go along and reify them in black and white or not. And he chose to go along. Surely that choice, to justify unspeakable acts at the command of superiors is not something Boalt Hall thinks falls under the aegis of academic freedom? Surely to participate in a process that took the Law and used it as a stage prop, as a decoy, as a concealment, is not what the Dean believes is academic freedom?

There were huge consequences to this behavior in terms of human agony and death.

Scott Horton is right. Wait for all the facts to come out. Then act.

# posted by

Michael Sweney : 8:22 PM

Edley writes:

"What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics."

What troubles me with Edley's analysis is that he won't act to officially censure a lawyer and
professor who twisted the law--which purpose is to uphold moral standards and human rights--into an instrument that led others to violate moral standards and human rights.

Shouldn't this foment change to the part of the code of conduct (from the Academic Personnel Manual sec. 015) Edley quotes in his piece?

When you can't argue with current law--no matter how immoral--can't you work to change it?

Who will fight for that here?

What I see here is many lawyers arguing fine points of various laws, when the morality of the law itself, as well as how it is applied, is in question. This is how criminals get off when they should be jailed.

This is how Yoo escapes culpability for crafting an immoral and corrupt legal document that helped other criminals perpetrate their crimes. There should be more culpability--even it's a public censuring to show the limitations of the law,
and how lawyers literally help criminals get away with torture and murder using legal means.

How about a workshop or seminar on twisting laws to fit immoral and inhumane causes--and how to prevent and work around it? "How the Legal Technicalities Support Immoral and Illegal Activities," or somesuch. Use Yoo's shoddy work as a star example.

Isn't there a way to reduce loopholes and technical problems in laws with blanket provisions that allow moral principles--or at least, Constitutional principles--to hold sway over the loopholes? Kind of a legal "security blanket" that catches the fallout from loopholes? A kind of weighting of certain legal principles over others, instead of pitting legal technicalities against each other that allows justice to fail?

I think we have to look at this the way Holocaust survivors see the legal frameworks behind Nazi abuses of Jews and others. No matter how "legal" a law may be, it's the moral underpinning--the "spirit" of the law--that is most important.

It seems a vital question to attack when the US legal framework designed to protect people allows so many criminals and perpetrators to escape.

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WARNING VIRUSES ON THIS BLOG : 1:25 PM

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brian : 3:24 AM