Dean Edley Defends War Criminal John Yoo

  • Bob Fertik's picture
    Bob Fertik
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After former White House lawyer John Yoo's memos authorizing torture were finally made publicly, the American Freedom Campaign launched a petition drive urging his boss, U.C. Berkeley law school dean Christopher Edley Jr. (left), to fire him.

the American Freedom Campaign is 100 percent supportive of the First Amendment and respects the academic freedom that tenure is designed to protect and encourage.  It cannot be stated strongly enough that we are not opposed to "Professor" Yoo stating an opinion; we are opposed to "government lawyer" John Yoo violating his obligation to defend the Constitution and serve the American people.  He was asked to provide a legal justification for torture and ignored every possible ethical -- and perhaps legal -- obligation in existence to give his superiors exactly what they wanted.

Today Dean Edley replied:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct - that is, some breach of the professional ethics applicable to a government attorney - material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

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.

Of course there is no statute that specifically prohibits government lawyers from writing memos justifying torture and other war crimes - who would imagine the need to write one?

There's no doubt it would be a crime for a government lawyer to administer torture directly.

Yoo's memos authorized other government officials to administer torture. At a minimum, that makes him an accessory to their crimes.

And under the Nuremberg case of United States v. Josef Altstoetter et al, using the legal system to "legalize" war crimes is itself a war crime:

If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan.

If Yoo were charged in a court of law with these crimes, would Edley defend keeping him on the Berkeley faculty? Of course not.

So the matter hinges on the fact that Yoo remains unindicted for his crimes, for the obvious reason that Attorney General Michael Mukasey, like Yoo and Bush, believes waterboarding is not torture. They are all wrong, but they are in power.

If John Yoo is a war criminal under Altstoetter, he belongs in prison - not on a law school faculty.

Write Dean Edley, politely of course: edley@law.berkeley.edu

Comments

Is justification of torture within the constitution?

  • National_Insecurity's picture
    National_Insecurity
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Dean Edley, I'm aghast. As will soon become obvious I'm not an attorney. But I am a reader of American history and have a passing acquaintance with our constitution.

I believe I can demonstrate that Mr. Yoo and his superiors set about to evade the rule of law embodied in our constitution.

1) One of the principles of our nation's founding was the rule of law, not the rule of man. For the rule of law to operate, the law must be open for all to see. The strength and beauty of our constitution is that all citizens are able to know the laws that govern our nation and our behaviors.

The fact that Yoo's memo was kept a dark secret, even from congress,the representatives of the people, is highly indicative that the darkness was not used to protect and defend the constitution, but instead, to protect certain people and their pattern of illegal behavior from legal scrutiny.

2) Yoo's long memo does not seek to consider methods of providing reliable information from interrogation. I can't find a sentence where Yoo concerns himself with established legal methods for obtaining actionable intelligence by interrogating subjects.

Isn't the purpose of interrogation to obtain reliable information?

3) We have established precedents that are 180 degrees from Mr. Yoo's depiction of al Qaeda as an all-powerful and novel enemy that attacked the US without warning, whose membes have knowledge of forces and plans that could cause us harm.

Imperial Japan was nearly a million times larger a force than al Qaeda. The Emperor of Japan was considered a living deity. Japan attacked us without warning on December 7, 1941. Japanese soldiers would commit ritual suicide, as well as military suicide with kamikaze planes. Captured American soldiers and civilians were tortured, murdered, executed, and some cannibalized by Japanese military.

Ayman al Zawahiri and Osama bin Laden are mere ants by comparison to the power of the Emperor over his people, his Imperial Army and his armaments.

Yet American interrogators had great success interrogating Japanese soldiers and civilians without torture or coercion. These same interrogators were aware that American soldiers had been severely punished for waterboarding and torture of captured Filipino combatants just a few decades earlier.

During WWII our nation was far more threated by weapons and weapons of mass destruction than the paranoia of recent years would indicate. German submarines surfaced nightly off the east coast, sinking ships within sight of shore with impunity. Germany had demonstrated as used poisonous chemicals to kill its own citizens. But we didn't torture Germans, did we? We eventually sent Nazis to the gallows for practices such as we seem to have engaged.

4) Torture does not produce reliable intelligence. Americans who have been tortured did not provide reliable information.

It is well known that the North Vietnamese tortured captured Americans. Senator John McCain was tortured. His onetime cellmate, Bud Day, was awarded the Medal of Honor. Both men were "broken" physically and mentally by torture. Yet neither man divulged accurate and highly sensitive information to their captors! They purposefully mislead their captors with false names, false units, false plans, etc. Although their stories are well known, these two were not extraordinary in their ability to hide important secrets, over 650 survived to return to the US with similar secrets. Several hundred others died in North Vietnam from torture, mistreatment and disease.

5) Perhaps Dean Edley can show me where in the US Constitution, the Federalist Papers, the writings of the founders, or any period in our long history anything to the effect of The United States embraces torture?

That our nation avoids torture, endorses treaties to oppose it, and has punished our own citizens and military for engaging in torture is evidence that torture is not part of the American moral code. It's not part of our military code.

The fallacy with the Yoo memo is that it carefully avoids considering the purpose of interrogation and instead obfuscates through 81 pages of hair-splitting and avoidance. Perhaps Yoo's abilities as an obfuscator have a role in less benign circumstances such as the prosecution of accounting fraud or corporate governance, but not constitutional law.

Thanks to Mr. Yoo, his superior Mr. Haynes, Mr. Aschcroft, Mr. Addison, Mr. Libby, Mr. Cheney and Mr. Bush, our nation's moral character is forever besmirched. For what high purpose did Mr. Jefferson and his compatriots labor that these people could enable a imperial tyrant?