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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.
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