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.
Jerry Brown was a so-so mayor. But over the past few years, he has turned out to be a pretty good attorney general. Of particular note was his decision late last year to ask the state Supreme Court to overturn Proposition 8, the loathsome anti-gay marriage initiative that won by five percentage points in the November election. Now, Brown is fighting a troubling new battle launched by Prop. 8 proponents — to keep their donor lists secret.
Earlier this month, the Yes on 8 campaign filed suit in federal court, claiming that California's transparency in government law, which requires the public disclosure of campaign donations of more than $100, violates the First Amendment of the US Constitution. It's an unusual case that's being litigated by an Indiana law firm that takes up right-wing Christian causes across the country, from abortion to gay marriage. The suit essentially alleges that California's law violates the First Amendment's guarantee of freedom of speech and assembly.
The suit claims that following the November election, some Yes on 8 donors were harassed and threatened by opponents of the measure who learned their names, addresses, and places of work from campaign finance documents. The California Secretary of State regularly posts campaign donation information online much like other states do. Prop. 8 opponents then used the information to map the locations of people and businesses and launched a series of boycotts. The resulting harassment and threats, the suit alleges, will dissuade donors from contributing to or joining similar political campaigns in the future, thereby chilling their rights to free speech and assembly. The Yes on 8 campaign wants the court to allow it to not reveal its donors by the next filing deadline on January 31, and it wants the court to order Secretary of State Debra Bowen to remove the group's previous filings from the agency's web site and keep them secret.
Ironically, the conservative Christian group is basing much of its argument on a US Supreme Court decision involving a left-wing organization that made similar claims in the past — the Socialist Workers Party. The high court had previously granted the group's request to keep its donors secret after they were harassed and threatened.
But in a filing late last week, Brown pointed out that the legal justifications the high court used in that case don't apply to the Yes on 8 campaign. Brown noted that in the Socialist Workers case, the court ruled that the political party didn't have to abide by Ohio's campaign disclosure law because it was such a small, inconsequential organization that never had a chance of winning a political contest. Consequently, the requirement that the group reveal its donors and thereby expose them to possible harassment could result in the party ceasing to exist. The high court ruled that such an outcome would be a violation of the group's free speech and assembly rights.
But Brown noted that this argument does not apply to the Yes on 8 campaign because it's not a minority party. It garnered more than 7 million votes, raked in nearly $30 million in donations, and won with more than 52 percent of the vote. "Plaintiffs are a large, well-financed, politically successful group that could not be more different than the group," in the Socialist Workers' case, Brown noted in his brief. The attorney general also reminded the court that the purpose of the transparency in government law is to inform the public of who exactly is supporting campaigns and who is receiving money from them.
Let's hope the federal judge in the case agrees with the attorney general during a Sacramento hearing on January 29. It's unfortunate that some Yes on 8 donors were threatened and harassed, but that's no justification for allowing them to fund a discriminatory measure in secret.
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