Robert Gammon / The East Bay Express – 2009-02-03 09:34:06
OAKLAND, California (January 28, 2009) — When this newspaper printed a cover story last spring saying UC Berkeley should fire Boalt law professor John Yoo and that he should be prosecuted for war crimes, the chances of either of those things actually happening may have seemed farfetched. After all, university officials had claimed that Yoo’s work for the Bush administration — authorizing torture and warrantless wiretapping — was protected by academic freedom.
Moreover, neither the Obama nor the Clinton campaigns expressed an interest at the time in investigating the outgoing administration. But several recent developments have started to shift opinions about whether Bush and company should receive a free pass. In fact, at least one prominent legal scholar believes that if there is to be a war crimes inquiry, one of the most likely targets will be a tenured professor who lives in the Berkeley hills.
“I think it’s moved from possible to very likely,” said Scott Horton, a lecturer at Columbia University law school and writer for Harper’s, who has both studied and reported extensively on the Bush administration’s record of torturing prisoners and monitoring Americans’ phone calls without a warrant. “And of all the people involved, the most vulnerable are the lawyers, including John Yoo.”
Horton pointed to the Nuremberg trials after World War II as a precedent. In the late 1940s, several high-ranking Nazi lawyers were prosecuted, convicted, and sent to prison for their roles in facilitating war crimes, including torturing prisoners.
But why would Yoo be a more likely target than George W. Bush, Dick Cheney, or Donald Rumsfeld? It’s clear now that they were the ones who ordered prisoners to be tortured at Guantanamo Bay prison and elsewhere. Or what about the CIA and military interrogators who waterboarded prisoners or deprived them of sleep and exposed them to cold for prolonged periods? Aren’t they more responsible than Yoo, whose work consisted of writing legal opinions from the comfort of his Department of Justice office in Washington, DC?
The answer to those questions is “yes.” Bush, Cheney, Rumsfeld, and the actual torturers were more responsible than Yoo. But because of vagaries in US law, they appear to be a tougher target than the University of California law professor, at least for domestic prosecutions.
That may be unfortunate, but it’s not as if Yoo’s hands are clean. Bush and company could not have ordered prisoners to be tortured, nor could CIA agents and military interrogators have carried out those orders, had it not been for Yoo. It was his two legal opinions, now known as the “Torture Memos,” that authorized cruel and harsh interrogations that had previously been defined as torture, and thus illegal under US and international law.
So how did the conventional wisdom start to shift on war crimes investigations? Horton and others, including Glenn Greenwald, a legal scholar and blogger for Salon.com, have pointed to several recent events. First, there was the swearing in of Barack Obama. Last week, the new president signed executive orders outlawing torture that had been authorized by Yoo’s legal opinions and ordering the closure of Guantanamo and CIA “black-site” prisons.
Obama also declared that the “rule of law” will be a “touchstone” of his administration. Although Obama has indicated he is not intent on launching war crimes investigations of Bush administration officials, he has not ruled them out. Nor has his pick for attorney general, Eric Holder. Moreover, Obama would be hard-pressed to claim to the world that America now once again abides by the “rule of law,” while simultaneously turning a blind eye to top political leaders who flagrantly broke it.
At this point, any serious debate over whether the Bush administration engaged in war crimes appears to be over. In mid-January, Susan Crawford, a Bush administration official in charge of prosecuting Guantanamo prisoners, told Bob Woodward of the Washington Post that US interrogators had “torture(d)” at least one suspected Al Qaeda member by depriving him of sleep and exposing him to cold for prolonged periods. Moreover, there were the revelations last year that Bush and Cheney both personally authorized prisoners to be waterboarded.
Waterboarding has been considered torture going back to the Spanish Inquisition. In fact, Holder pointed out during his confirmation hearing earlier this month that the US government prosecuted American soldiers who waterboarded prisoners during the Vietnam War. Holder also declared unequivocally that “waterboarding is torture.”
The nation’s appetite for war crimes investigations also appears to have grown. A Washington Post poll reported last week that a majority of Americans, by a margin of 50 to 47 percent, believe that the Obama administration should investigate whether the Bush administration’s treatment of detainees was illegal.
In addition, House Speaker Nancy Pelosi, Senator Carl Levin, and other prominent Democrats in recent weeks have indicated said that Congress plans to investigate the Bush administration on a variety of fronts during the coming months. Levin even has urged Holder to appoint a special prosecutor.
Last week, some Senate Republicans held up the Holder nomination over concerns that the Department of Justice would target CIA and military interrogators. But that seems unlikely. The reason is that those interrogators could point to Yoo’s memos as justification for their actions.
CIA agents once referred to one of the memos as the “Golden Shield” (see “The Torture Professor,” May 14, 2008). In addition, the torturers were effectively immunized from prosecution when Congress approved the Military Commissions Act in 2006 (Obama voted against it).
Although that 2006 law doesn’t apply to Bush, Cheney, and Rumsfeld, they too can point to Yoo’s memos as justification for ordering torture. In fact, they already have. Bush has said repeatedly that his decisions relied on Department of Justice legal opinions (in other words, Yoo’s work). Horton said, however, that Bush and company could be vulnerable because recent revelations have shown that the United States began torturing prisoners before Yoo completed his first torture memo in August 2002.
That means top officials may not be able to claim that they relied on it to justify their actions. Those revelations also could expose Yoo to charges of a criminal conspiracy if he wrote the memos in order to justify or cover-up existing crimes. Torture is a war crime in the United States under several laws, including the Convention Against Torture, an international treaty brokered by the Reagan administration.
But Yoo is more vulnerable than Bush, Cheney, and Rumsfeld because while his legal memos might immunize them, they do not immunize him. Nor is he protected by the 2006 Military Commissions Act. In short, others may have some get-out-of-jail-free cards, but not Yoo.
Moreover, arguments that he was merely fulfilling his duty as a government lawyer or that he did not know that his legal opinions would result in torture are undermined by the fact that Nazi lawyers made similar assertions at the Nuremberg trials and lost.
In addition, it’s clear that Yoo knew he was authorizing torture. After all, he has acknowledged changing the definition of torture to allow harsh techniques that had long been deemed to be torture, and thus illegal, including waterboarding.
So where does that leave UC Berkeley? Boalt Law School Dean Christopher Edley Jr., who was a member of the Obama transition team, has essentially said that Yoo’s job is safe unless he’s convicted of a crime. But as this newspaper has already reported, Edley is wrong about that. The University of California has previously fired tenured professors who were not convicted of crimes.
At the very least, the university should launch a thorough investigation into Yoo, including whether his actions merit disbarment. In addition, any assertion that academic freedom justifies his authorization of war crimes is ethically bankrupt.
The university also should report its findings to the public. We all have a right to know why a public university, supported by our tax dollars, allows a man like Yoo to continue to teach constitutional and international law to the next generation of lawyers.
“The Torture Professor.” Letters and Comment
Yoo Was Wrong, But So Are You
While I largely agreed with Gammon’s criticism of Professor Yoo, I’m appalled by some of the arguments he makes.
First, he cites the notorious Nuremberg Trials as some sort of moral authority. Those show trials were a “macabre farce” as the leading UK historian, A.J.P. Taylor noted. One side to a conflict served as Judge, Jury, and Executioner. See Advance to Barbarism by F.J.P. Veale. The Germans were not permitted to contest the main charges of crimes against humanity and aggressive warfare. All they could plead were individual cases of “following orders.”
The “Allied” side were guilty of at least as many war crimes as the so-called “Axis,” and in the case of the USSR many more. There were fantastic allegations of human lampshades, human bars of soap, and four million gassed at Auschwitz-Birkenau, all of which are totally discredited even by mainstream hacks.
Second, there’s the inevitable recycling of the old statist bromide from old Ollie Wendell that free speech is limited. Not so. You either have an inalienable right to free speech or it is a government granted permission. While property rights routinely govern its exercise, a publicly funded university has no right to censor political views since we are all forced to pay for it. Even as deranged a far leftist as Noam Chomsky conceded that Kissinger had a right to return to Harvard if he wished.
Gammon is attempting to smuggle his own abhorrent ideas into domestic law as Woo did in international law.
A pox on both your houses.
Michael P. Hardesty, Oakland
He’s a War Criminal
John Woo is like Albert Speer and Edward Teller. He is very intelligent but has sacrificed his soul and compassion in pursuit of power. He should be treated like a Nazi war criminal, his tenure revoked, and let him spend the rest of his life changing bedpans. I am amazed that Boalt Law School Dean Christopher Edley Jr. says he is protected by academic freedom. Would he still feel the same way if Yoo created a legal framework to make lynchings possible again?
Steve Deutsch, Berkeley
We Did Protest Yoo
Thanks for your piece on John Yoo. It is a valuable summary of the history of the torture memos.
I do, however, take exception to your assertion that Berkeley students haven’t protested Yoo. While there should be more and continuing protests against Yoo, you are simply wrong that they haven’t done so in the past. In fact, as early as the fall of 2005, there was a series of protests inside and outside of Yoo’s classroom at Berkeley. These protests culminated in students getting arrested. At the time, the only source reporting this story off of campus, and the source where I learned about it (since I’m not a Cal student) was KPFA 94.1 FM, and specifically Dennis Bernstein’s “Flashpoints” program. These protests were, if I’m not mistaken, some of the first actions taken by the young activist group, World Can’t Wait — Drive Out the Bush Regime. Incidentally, Marjorie Cohn, who you cite in your piece, was a regular guest on Flashpoints during that period.
It’s unfortunate that the student protests haven’t continued, if that is indeed an accurate representation of fact (of which I’m not convinced), but to a great extent, there cannot be activism without information on which to predicate it. And until the last six months, there has been very little establishment media coverage of the case of John Yoo, and the alternative presses have been all too quiet themselves. Of course, students on campus must have had access to damning information about Yoo, and therefore some of the onus must be placed on them, but the East Bay Express should not be making pronouncements when it wasn’t beating this drum back in 2005 when students were being arrested for protesting Yoo.
Matthew Isles, Oakland
No Hague, No Money
No, UC Berkeley Boalt Hall law school should not fire John Yoo. That would be an insult to academic freedom. They should set up a special Chair for Law and Torture at a satellite campus in the Hague, the Netherlands. And, they should keep Yoo’s academic load light, so he can find time to defend himself in the unfortunate event he is indicted by the prosecutor for World Court.
I’m a graduate of Boalt Hall. Next time the school calls me to ask for money, that is exactly what I will suggest. If they go for it, they’ll get my money.
Don Driscoll, Albany
Go a Step Further
Thanks East Bay Express for the excellent article. I hope you will follow it up with more information. I have a few points I would add:
(1) — John Yoo’s thesis on the unlimited powers of “the commander in chief” suggests that when the president is at war Congress’ war powers are suspended altogether. A letter from John Conyers et al. to President Bush on May 8, 2008, reminded the president of their powers:
“We are writing to register our strong opposition to possible unilateral, preemptive military action against other nations by the Executive Branch without Congressional authorization. As you know, Article I, Section 8 of the U.S. Constitution grants Congress the power ‘to declare war,’ to lay and collect taxes to ‘provide for the common defense’ and general welfare of the United States, to ‘raise and support armies,’ to ‘provide and maintain a navy’ to ‘make rules for the regulation for the land and naval forces,’ to ‘provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions,’ to ‘provide for organizing, arming, and disciplining, the militia,’ and to ‘make all laws necessary and proper for carrying into execution … all … powers vested by this Constitution in the Government of the United States.’ Congress is also given exclusive power over the purse.
“The Constitution says, ‘No money shall be drawn from the Treasury but in consequence of appropriations made by law.’ By contrast, the sole war powers granted to the Executive Branch through the President can be found in Article II, Section 2, which states, ‘The President shall be the Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States.’
“Nothing in the history of the ‘Commander-in-Chief’ clause suggests that the authors of the provision intended it to grant the Executive Branch the authority to engage U.S. forces in military action whenever and wherever it sees fit without any prior authorization from Congress.
“In our view, the founders of our country intended this power to allow the President to repel sudden attacks and immediate threats, not to unilaterally launch, without congressional approval, preemptive military actions against foreign countries. As former Republican Representative Mickey Edwards recently wrote, ‘[the decision to go to war] … is the single most difficult choice any public official can be called upon to make. That is precisely why the nation’s Founders, aware of the deadly wars of Europe, deliberately withheld from the executive branch the power to engage in war unless such action was expressly approved by the people themselves, through their representatives in Congress.’
“Members of Congress, including the signatories of this letter, have previously expressed concern about this issue. On April 25, 2006, sixty-two Members of Congress joined in a bipartisan letter that called on you to seek congressional approval before making any preemptive military strikes against Iran…”
In my view, Congress should take the Conyers letter one step further and force a hearing to determine whether the foundations under which the Iraq War was conducted were legal and constitutional. If illegal activity would be established the next step would be to prosecute those who had initiated and conducted the illegal activity. For instance, Yoo’s action (advice) resulted in the Bush administration’s abrogation of its treaties relative to war crimes. The power to make treaties is in both the president and Congress: “(Section 2) He [the president] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”
Did two-thirds of Congress agree to Yoo’s instructions on torture, etc.? Did they agree to abrogate US treaties relative to war crimes? Were they consulted on the abrogation of the treaties?
Thus, one could take the Yoo thesis to its end, concluding that the president has the right to suspend Congress during times of war, leaving only the commander-in-chief with legal responsibilities — as a dictator. Yoo’s thesis is the kind of argument that made Hitler the dictator of Germany. Thus, there is a legitimate need to iron out just exactly how far the Yoo thesis intended to go in extorting Congressional powers in favor of President Bush’s “commander-in-chief” powers. For the next US president could take Bush’s powers as a precedent and expand them.
(2) — The Nuremberg Trials involved several categories of criminals. One category involved “hate mongering,” and the court found the publisher of a German newspaper, Julius Streicher, guilty. The trials concluded that a good part of the anti-Semitic actions (genocide, etc.) perpetrated by Nazi Germany were egged on by Streicher through his newspaper, Der Stuermer, from 1922 until 1933, together with his other publications and his other activities. A summary of the “Jew Baiting” for which he was accused and hanged is at http://www.ess.uwe.ac.uk/genocide/Streicher.htm.
We can see that the arm of the Nuremberg laws had a wide stretch, holding many different people accountable for crimes against humanity. Western law is based upon precedent, as Yoo ought to agree. There are precedents from Nuremberg and the Hague today that can bring Yoo and those who acted on his plan(s) to account.
(3) — The Hague international court has demonstrated and continues to demonstrate that nobody is above the international covenants that came from the Nuremburg Trials. According to a PBS Newshour interview of Judge Meron on June 14, 2005, the court had brought 22 fugitives from the Kosovo War to its chambers. The present schedule of the court (http://www.un.org/icty/) shows a continuing intensity in bringing forth war criminals from that war to justice.
The Hague international court has shown that no leaders can hide behind their borders or laws to avoid being brought to justice for international crimes. The Bush administration may attempt to pardon itself to avoid criminal prosecution, but the fact remains that both US and international law hold that no man is above the law. (Section 2: “… he [the president] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”)
To this end we may conclude, based upon US and international precedents, that the one who draws up the plans for a crime is as guilty as the man who commits the crime. The man who orders the crime might hold a higher responsibility. And finally we have to look at the propagandists. Joseph Goebbels, the Nazi Education and Propaganda Minister, and Joseph Streicher, a newspaper publisher, were both found guilty. Goebbels committed suicide May 1, 1945.
(4) — As pertaining to John Yoo’s freedom of speech, as a university professor, actions by John Yoo that are paid for by the US government would not seem to fall under the “freedom of speech” clause of the US Constitution or the University of California’s bylaws. He was the US government official who crafted the plans to overturn international law and the abrogation of US international treaties. He was paid for his advice and instruction and it appears that government officials used his advice to carry out deeds recognized by the Hague international court as war crimes. It is doubtful that an argument can be made that two-thirds majority of the US Congress agreed with those deeds so advised by Yoo. The requirement of “advice and consent of Congress” noted above requires that the president bring forth such relevant issues before Congress for Congressional consent.
Mel Copeland, Berkeley
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