Fire, Disbar And Prosecute Yoo — and All Torture Lawyers!

This statement is being distributed today at the UC Berkeley commencement by the SF Bay Area Chapter of World Can’t Wait

Especially now in the wake of the last 2 weeks’ events, with John Yoo taking a lead media role to defend torture “BECAUSE IT WORKED!” – all people of conscience in this country, including here at UC Berkeley, must reject this dangerous lie, and speak out.

As noted commentator Glenn Greenwald wrote: "There’s clearly an attempt underway by the political (and media) class to rehabilitate the Bush torture regime, which is why it is more important than ever to make clear that torture is never justifiable no matter what it produces."

John Yoo is a war criminal
Torture is a war crime, without exception, under international law. The principles of academic freedom which protect thinking, speaking, teaching and research for all within the university, do NOT protect illegal acts committed by John Yoo working for the Bush-Cheney Office of Legal Counsel (while on UC sabbatical). Yoo’s work at OLC directly led to the implementation of a torture program that has victimized untold thousands AND continues today under the Obama administration.

Why Yoo’s theories are an attack on the rule of law
Lawyers take an oath to support the Constitution as the fundamental rule of law in the United States. During his years in the OLC for the Bush Administration, Yoo violated this oath with his torture memos. In the opinion of historian Arthur Schlesinger Jr., “…the Bush Administration’s extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history.”1 Yoo helped overturn decades of American legal tradition to establish the Geneva Conventions that set the standards for the humane treatment of prisoners. Instead, Yoo helped the United States become “the first nation ever to authorize violations of the Geneva Convention.”2 He corrupted the law into “tricky legalisms” with lies and distortion. “The Bush Administration corruption of language had a curiously corrupting impact on the public debate, as well. It was all but impossible to have a national conversation about torture if top administration officials denied they were engaged in it….. instead, it chose a path of tricky legalisms adopted in classified memos. On August 1, 2002, in an infamous memo written largely by Yoo but signed by Assistant Attorney General Jay S.Bybee, the OLC redefined the crime of torture to make it all but impossible to commit.”3

How Yoo inverts basic legal principles to justify torture
The Boalt faculty has remained shamefully silent, failing to challenge Yoo as a shoddy thinker and bad lawyer. You don’t need a J.D. to see that his torture memos, his books, his latest statements share one common theme: The outcome justifies the law. It is the rule of expediency, the rule of might. He does not apply fundamental principles to circumstances, but applies circumstances to change principles.4 None of Yoo’s arguments are focused on the traditional goals of law, protecting liberty, expanding democracy, ensuring the rights of the vulnerable and endangered, restraining the abuse of the powerful. Instead, he argues to expand the power of the powerful President, to curtail restraints preventing abuse, to increase the role of power politics and to erode the constraints of the judiciary. There is no underlying legal principle at work beyond the need for security.5

Yoo’s attack on the rule of law is an attack on every lawyer
Professor Christopher Edley, Jr., dean of UC-Berkeley Law, as a former civil rights attorney, and the rest of the law faculty at Boalt Hall have failed to adequately respond to this national emergency. That national emergency is that their profession – the academic legal profession and the universities that have trained them – has produced an ideology that claims to justify what used to be considered crimes of totalitarian governments, namely arbitrary detention, torture, trials before military commissions without any civil due process, not just as emergency measures required during a state of war but as legally based on the United States Constitution. Any lawyer or law professor who does not answer this challenge and remains silent is, in fact, complicit in allowing this environment to flourish.

Allowing Yoo to continue teaching law is an attack on scholarship and education
This whole structure – the lies, the disregard of facts, the phony reasoning, the inverted principles – is an attack on the basics of academic scholarship. “It is necessary to question the consequences of the use of torture on the principles and practices of scholarship and education. By either openly or passively condoning torture, for example through our silence, we send a devastating message not only to our students, but also to the community at large: that the prohibition against torture is negotiable or even dispensable. Especially in the humanities, where cutting edge thinking explores concepts and experiences such as ‘responsibility’, ‘otherness’, ‘difference’, ‘memory’, ‘trauma’, our work and research become entirely irrelevant if, today, we ignore the implications of a re-legitimization of torture.”6

Every regime that tortures has its lawyers to justify its crimes
It is a huge mistake to think Yoo is alone in his arguments. As the introduction to Powers of War and Peace makes clear, Yoo is only one in a constellation of professors, colleagues, students and active court justices who think as he does. He is not some lone wolf with wacky ideas but is influenced by and representative of a school of thinking that has come from the so-called “best law schools” of this country: Harvard, Yale, Berkeley. This is why the Boalt faculty has an obligation to examine both the ideas advanced by this school of legal thinking, especially by Yoo, as well as the university system that produces and rewards this kind of reasoning. To draw a parallel, the universities in Nazi Germany were culpable for allowing the Nazi ideology to spread without challenge, even though then, Hitler was a dictator who could order professors fired, arrested and imprisoned, unlike now when totalitarian ideas are advanced and fostered in spite of absolutely no external coercion. In this, a failure to speak up is even more shameful.7

Even Nazi Germany had its ‘lawyers’ and ‘scholars’
After the war, the study of thousands of German books and documents showed that “…there was participation of German scholarship at every single phase of the crime.” These cooperative German professors were not “sham scholars, nobodies elevated in rank by their Nazi friends and protectors” but “people of long and high standing, university professors and academy members, some of them world famous, authors with familiar names and guest lecturers abroad…”8 These professors had the best German training — the only difference was that they would not defend basic human values in their work. Their research now sounds “unconvincing and hollow” not because they were highly trained but because it had “the mendacity inherent in any scholarship that overlooks or openly repudiates all moral and spiritual values and, by standing order, knows exactly its ultimate conclusions well in advance… With the political and military leaders, the intellectual leaders first declared Germany the final judge of her own acts and then renounced accepted morality.”9

Academic freedom is the freedom to ASK QUESTIONS
Yoo’s theories, his views on the constitution and his shoddy sophistry pose serious challenges to the intellectual environment at Boalt Hall and at UC. The University and Boalt are complicit in torture by failing to maintain academic freedom as the pursuit of truth, not as a means to justify political goals. Who in any leadership position at Boalt is asking questions, and demanding a debate on Yoo, his theories and his suitability as a professional, ethical, or moral role model for students? Without this, claims of academic “freedom” are a sham. Repressive regimes always look “free” – until you ask REAL QUESTIONS. The failure to raise questions and unleash a serious debate about the attempted legalization of torture teaches students to remain silent and complicit with it.

Think about this:
What a bizarre situation we face: UC is paying an advocate/designer of illegal government action (rendition, aggressive war, torture) to teach constitutional law, and ethics, to the next generation of lawyers and judges! As long as John Yoo remains on the Boalt faculty – as long as a key legal architect of the Bush Regime’s torture program enjoys the benefits of UC employment – there is a bloodstain on every class, every department, and every diploma here. Demand that UC and Berkeley Law do the right thing. FIRE, DISBAR AND PROSECUTE JOHN YOO.

1 Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on
American Ideals, (New York: Doubleday, 2008). Pg 8
2 Mayer, Pg 9
3 Mayer, Pg 151
4 See “Al Qaeda’s decentralized form demanded the reinterpretation of the rules of war, including the
legitimate grounds for war, surveillance, targeting, detention, interrogation and trial.” John Yoo, Crisis
and Command, (New York: Kaplan Publishing, 2009). Pg vii
5 See David A. Sylvester “A Response to John Yoo and his Dictatorship Theory,” April 11, 2006.
http://bydavidsylvester.blogspot.com/2006/04/response-to-john-yoo-and-his.html
6 “Torture and the Future,” http://www.complit.ucsb.edu/projects/tortureandthefuture/description.html
7 Sylvester, “A Response to John Yoo and his Dictatorship Theory”
8 Max Weinreich, Hitler’s Professors: The Part of Scholarship in Germany’s Crimes against the Jewish
People, (New York:Yiddish Scientific Institute – YIVO, 1946). Pg 6-7
9 Weinreich, Pgs 7, 242

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