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Yoo's campus supporters not only defend his right to academic freedom, but they say he's a good professor, who prepares his students for the bar exam while leaving his radical political beliefs and one-sided legal opinions at the classroom door. "His class was scrupulously faithful to current doctrines on the foreign affairs and war powers, separation of powers, judicial review, treaties, executive appointments, executive privilege, and such," wrote one poster on Nuts & Boalts. "And about 10x more organized and detailed than certain other classes."
But is being a good teacher all that we should expect from a professor at one of the top academic institutions in the world? What about ethical behavior — taking personal responsibility for one's actions, and not being complicit in the performance of degrading acts, torture, or even murder? What about the university? How can it stand behind a man who enabled the CIA and the military to torture people for months or even years at a time?
Those are precisely the questions posed in recent weeks by the National Lawyers Guild and the American Freedom Campaign, two human rights groups that believe Yoo should not be allowed to remain at Boalt in light of the overwhelming evidence against him. "John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," explained National Lawyers Guild President Marjorie Cohn in a statement. "John Yoo should be dismissed from Boalt Hall and tried as a war criminal."
In response to those organizations and to an editorial last month in The New York Times that characterized Yoo's continued employment at Berkeley as "inexplicable," Boalt Law School Dean Christopher Edley Jr. posted a statement on the school's web site entitled "The Torture Memos and Academic Freedom." Edley argued that even though Yoo's work for the Bush White House may have been repugnant, the professor still "enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights."
Edley also argued that, as a lawyer dispensing a legal opinion, Yoo was not as responsible as those who actually implemented the torture program. "As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary [Donald] Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank, and place," Edley wrote. "Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders."
Finally, Edley argued that short of a criminal conviction, his hands were tied by campus regulations. "Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone does not warrant dismissal or even a potentially chilling inquiry," the dean wrote. He then pointed to a UC policy regarding tenured professors that defines a fireable offense as "a 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."
But will Yoo ever be indicted or convicted of war crimes? In a US court, it's possible, but many legal scholars believe it unlikely. It's true that an American tribunal at Nuremberg, Germany in the late 1940s prosecuted and convicted high-ranking Nazi lawyers. But according to some legal scholars, the lawyers convicted in that case — United States v. Alstoetter, which served as the basis of the classic film Judgment at Nuremberg — differ from Yoo in that they also implemented the programs that led to the atrocities.
In addition, Yoo may be protected by a war crimes immunity law passed by Congress in 2006. Known as the Military Commissions Act, it provided retroactive immunity from September 11, 2001 through December 31, 2005 for violations of the 1996 War Crimes Act — one of the statutes that Yoo determined was unconstitutional and thus could be ignored by interrogators. (Both Barack Obama and Hillary Clinton voted against the torture immunity law, while John McCain, a former prisoner of war who has repeatedly said he opposes torture, voted for it.)
However, some legal scholars argue that the war crimes immunity law may not apply to Yoo. "The Military Commissions Act clearly protects the interrogators, but not necessarily the top administration officials who sanctioned the techniques," Scott Horton, a Columbia University Law School lecturer and frequent writer on torture and war crimes, said in an interview. But even if Horton is right, it seems unlikely that an Obama or Clinton Justice Department would attempt to prosecute Yoo, because of the political fallout and accusations of "divisiveness" that it would surely generate.
Still, Horton and other legal scholars argue that Yoo may be in danger of facing charges at the International Criminal Court in the Hague or from a court in another country. In 1998, a Spanish court indicted ex-Chilean dictator Augusto Pinochet for war crimes committed under his leadership in the mid-1970s. In addition, last year an Italian court charged 26 Americans, most of them CIA agents, with kidnapping a Muslim cleric from Milan and taking him to an Egyptian prison where he was tortured. As Horton put it in a recent post on the legal blog, Balkinization, "Professor Yoo will want to think twice about boarding a jet for one of those stays on Lake Como [Italy] of which he is so fond."
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