The Torture Professor 

Why UC Berkeley should fire John Yoo, the legal scholar whose work led to Abu Ghraib and secret spying on Americans.

Page 6 of 7

Now, there's no allegation that Yoo plagiarized anyone; indeed, his work was uniquely his. But there is evidence that he did far more than mischaracterize the separation of powers doctrine during war time. He made stuff up. In the first torture memo, for example, Yoo made the startling and unsubstantiated assertion that "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-chief authority of the president."

Goldsmith pointed out that Yoo did not and could not cite any prior Office of Legal Counsel opinion, statute, or legal precedent to back up this sweeping statement. The memo also wrongly implied, Goldsmith said, that "many other federal laws that limit interrogation — anti-assault laws, the 1996 War Crimes Act, and the Uniform Code of Military Justice — are also unconstitutional, a conclusion that would have surprised the many prior presidents who signed or ratified those laws, or complied with them during wartime."

It's apparent that Yoo was expressing his own ideas — if no doubt also those of Cheney, Addington, and Gonzales — into law from his post in the Justice Department. That contravened Congress' sole right to legislate under the constitution, and violated what Goldsmith referred to as an Office of Legal Counsel tradition of providing "an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies." In short, Yoo appears to be guilty of both research misconduct and violating the canons of intellectual honesty. Moreover, his actions were arguably far worse than Churchill, whose work, while inexcusable, never led to anyone's death.

Lawyers are bound by standards that go beyond any tenure rule. As an attorney licensed to practice law, Yoo also is required to follow the ethical standards of the American Bar Association. In a 2006 scholarly paper, "Torturing the Law," Columbia University Law Professor Jose E. Alvarez, a former State Department attorney in the Reagan administration, noted that the bar association's Model Rules of Professional Conduct "require lawyers to give candid, independent, and professional, not sycophantic, advice," prior to their clients taking action.

The rules of conduct also state that "a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable." But Yoo's and other Office of Legal Counsel memos, Alvarez wrote, "tortured the rules of professional conduct insofar as they told the clients only what the lawyer believed the client wanted to hear. They did not enable the client to make an intelligent and informed decision on the basis of real, not fanciful, law."

Similarly, Yoo appears to have violated the Office of Legal Counsel's long-standing ethical practices, which according to Goldsmith, include providing "detached, apolitical legal advice as if the OLC were an independent court inside the executive branch." In his book, Goldsmith also quoted William Barr, a former head of the office, and later, attorney general for the first President Bush: "Being a good legal advisor requires I reach sound legal conclusions, even if sometimes they are not the conclusions that some may deem to be politically preferable." In other words, Yoo had an ethical and historical duty to inform the CIA and the Pentagon of all the legal pros and cons of torture, not just give them a "blank check," as Goldsmith put it.

Jack Balkin, a constitutional law professor at Yale Law School (Yoo and Goldsmith's alma mater), also believes both Yoo and his Justice Department boss, Bybee, made serious ethical miscues. "My own conclusion is that Yoo and Bybee did violate their professional obligations to the president as constitutional actor, and to the country as a whole," Balkin wrote on his legal blog, Balkinization. "The reason is a combination of their outrageous theory of presidential dictatorship and their all-too-eager assistance in what appears to be a conspiracy to commit war crimes."

There also are some indications that Yoo might be guilty of more than breaking bar association and Justice Department rules. According to reports in The New York Times and the Los Angeles Times, there's evidence that the CIA had started torturing Zubaydah before Yoo finished his August 2002 memo. If true, and if Yoo knew about it and then wrote the memo to protect the law-breaking CIA interrogators, he may have participated in a cover-up, if not a criminal conspiracy.

For the past four years, the Justice Department's Office of Professional Responsibility has been investigating the torture memos and other opinions that Goldsmith rescinded to determine whether they violated Office of Legal Counsel standards. However, some critics are skeptical because the investigators report directly to Attorney General Mike Mukasey and work for the same Justice Department that employed Yoo. Some Congressional Democrats have asked that the office of the Inspector General, which reports to Congress, also be allowed to investigate, but the administration has refused.

Considering this administration's record of suppressing and delaying investigations, it's unclear whether the inquiry into Yoo's work will be completed before the next president takes office in January. Even if it is, it seems unlikely that during an election year it will result in a professional rebuke of Yoo, let alone a recommendation that he be disbarred.

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