The Torture Professor

AFP/Photo by Behrouz Mehri

 

Yoo’s memos not only unleashed actions
once considered torture, but
they also changed the global perception of our country.

In
early 2008, the national spotlight focused on Berkeley as the city
council proclaimed recruiters for the US Marines “unwelcome intruders.”

As antiwar liberals clashed with offended conservatives, the protests
and counter-demonstrations splashed across the evening news. But all
the attention was badly misdirected. Just a few blocks away, virtually
unmolested by protesters or TV cameras, was John Yoo, a UC Berkeley law
professor whose secret government work was more objectionable than
anything Marine recruiters or Berkeley’s city council could possibly
have concocted.

Yoo, a tenured professor at Boalt Hall since 1999, is the
author of
the infamous “Torture Memos” – a set of repudiated legal opinions that
led to prisoner abuses in US prisons at Abu Ghraib, Guantanamo Bay, and
elsewhere. Yoo wrote the memos for the Bush administration’s Department
of Justice while on leave of absence from UC Berkeley from 2001 to
2003. A staunch conservative, he also is believed to have laid the
legal foundation for the nation’s warrantless wiretapping program.

Yoo is now back at Boalt quietly teaching constitutional law,
mostly
overlooked by both the Bay Area media and anti-Bush activists. But in
legal circles, both liberal and conservative scholars have sharply
criticized the torture memos while engaging in online debates about
whether he should be charged with war crimes, fired from Berkeley, or
simply left alone.

One of his critics is Jack Goldsmith, a fellow conservative
and
former close friend. Goldsmith, who is now a Harvard University Law
School professor, succeeded Yoo in the Justice Department and
ultimately rescinded the torture memos – a move he described as being
unprecedented. In a book released last fall, Goldsmith said he had no
choice but to repudiate Yoo’s work because it was so “extreme” and
“one-sided.” He said the memos amounted to an “advance pardon” or
“get-out-of-jail-free card” for any interrogator who tortured prisoners
in violation of US and international laws.

The Bush administration made one of Yoo’s torture memos public
on
March 31, prompting some critics to immediately dub it the “Abu Ghraib
Memo.” Among other things, the memo extended the harsh and humiliating
techniques employed by the CIA to military interrogators in Iraq and
Afghanistan. The revelation of the 81-page memo sparked an editorial in
The New York Times that questioned Yoo’s continued
employment at Berkeley, and spurred a call by two human rights
organizations for Yoo to be fired.

In response, Boalt’s dean, Christopher Edley Jr., issued a
statement
saying that while he too was “troubled” by the torture memos, Yoo was
protected by tenure rules and academic freedom. Edley essentially said
that the forty-year-old law professor could not be fired unless he was
convicted of war crimes.

There is a chance, although remote, that such a thing could
happen.
Following World War II, Nazi lawyers were tried and convicted of war
crimes at Nuremberg for their roles in enabling Hitler to commit
atrocities. However, because of a 2006 US law that provided retroactive
immunity to government officials, Yoo may never face criminal charges
in the United States. Nonetheless, he could be prosecuted in a foreign
or international court.

But a closer look at the University of California’s tenure
regulations reveals that UC Berkeley need not wait for the intervention
of foreigners. For starters, it’s highly questionable whether Yoo’s
work for the Bush White House truly constituted an instance of academic
freedom. And even if it did, there’s still a case to be made that the
former law clerk for Supreme Court Justice Clarence Thomas engaged in
misconduct and violated his professional legal ethics. As a result, UC
Berkeley can – and should – fire him.

---

John Choon Yoo was part of a wave of conservative ideologues
who
swept into the executive branch following the inauguration of George W.
Bush in 2001. Yoo is a member of the ultra-right-wing Federalist
Society and at the time was already known as one of the “New
Sovereigntists,” a group of conservative intellectuals deeply critical
of the growing influence of international law on American
jurisprudence. He also shared Vice President Dick Cheney’s view of
unlimited presidential power in wartime, and possessed special skills
that proved invaluable to the White House. He’s brilliant, supremely
confident, and as a leading scholar from a prestigious – and liberal –
university, he carried the appearance of bipartisan street cred.

After 9/11, Yoo played an integral role within the
administration.
He became a member of a small group of high-ranking lawyers who called
themselves the “War Council.” In his 2007 book, The Terror
Presidency,
Jack Goldsmith wrote that the group met often “to plot legal strategy
in the war on terrorism.” Goldsmith was Yoo’s good friend and fellow
new sovereigntist, who took over for him in the Justice Department.
Although the War Council had an extremely influential membership,
including then White House Counsel Alberto Gonzales and Cheney’s lead
attorney David Addington, none possessed Yoo’s special position in the
administration.

At the time, Yoo was a top deputy in the Justice Department’s
Office
of Legal Counsel. Although obscure to anyone outside the Beltway, the
OLC is one of the most important divisions of the executive branch. Its
job is to interpret law and to be the president’s official legal
opinion writer. As a result, its opinions and memos carry the weight of
the law, unless the courts later overturn them. Most important, the OLC
opinions legally insulate from criminal prosecution anyone who follows
them. As a result, the department’s work has a long history of being
unbiased, thoroughly researched, and based on sound legal footing,
according to Goldsmith, who became head of the office in 2003.

But with Yoo’s pen, that all changed. The office suddenly
became a
rubber stamp for whatever Bush and Cheney wanted. Yoo, according to
Goldsmith, “wrote opinion after opinion approving every aspect of the
administration’s aggressive antiterrorism efforts.” Government
officials, Goldsmith explained, were deathly worried about a future
administration, especially a Democratic one, investigating them for
criminal acts. So they wanted – and needed – legal opinions that would
inoculate them. They viewed Yoo as “a godsend,” Goldsmith said. “The
opinions made Yoo enormously valuable to the White House after 9/11 and
gave him extraordinary influence within the administration.”

Yoo apparently authored one of his first controversial memos
in
October 2001, about five weeks after 9/11. Some believe the opinion
likely formed the basis of the administration’s warrantless
eavesdropping program. First revealed by The New York Times in
2005, the program allowed government officials, without getting a
warrant, to secretly listen to phone conversations of Americans whom
they believed had contacts with terrorists. The October 2001 memo,
which since has been rescinded but most of which still remains
classified, stated boldly that the Fourth Amendment’s broad prohibition
against search and seizure without a warrant “had no application to
domestic military operations” in the war on terror. The existence of
the memo was revealed in a footnote in Yoo’s second torture memo.

As for the first torture memo, Yoo wrote it in 2002 after the
capture of Abu Zubaydah, a man the Bush administration touted as the
first high-level al-Qaeda operative to be arrested after 9/11. In an
interview with Esquire magazine published last month on its web
site, Yoo acknowledged being under “time pressure” to finish the memo
because of Zubaydah’s arrest. FBI agents had been questioning Zubaydah
using traditional law-enforcement interrogation techniques, but CIA
officials were reportedly growing impatient and believed that they
needed to use much harsher methods to make Zubaydah crack. After
working feverishly for weeks, the Berkeley law professor finished the
opinion in August 2002. One of the memo’s main provisions was that it
altered the traditional definition of torture to make it easier for
interrogators to use aggressive tactics that previously had been
illegal.

Under Yoo’s new definition, it wasn’t torture unless the
interrogator was inflicting pain “associated with a sufficiently
serious physical condition or injury, such as death, organ failure, or
serious impairment to body functions.” Yoo told Esquire that he
decided to use this highly technical wording because he believed the
traditional definition was too “blurry.” “I didn’t want the opinion to
be vague so that the people who actually have to carry these things out
don’t have a clear line, because I think that would be very damaging,”
he said.

But the memo went much farther than moving the bar on torture.
Even
if the interrogators committed torture under Yoo’s new definition,
Goldsmith noted that the memo told them “they could still avoid
criminal liability by invoking a necessity defense (on the theory that
torture may be necessary to prevent a catastrophic harm) or self
defense (on the theory that the interrogators were acting to save the
country or themselves).” To top it off, Yoo’s memo, according to
Goldsmith, concluded that existing domestic and international laws
against torture, from the Uniform Code of Military Justice to the
Geneva Conventions, violate the president’s wartime commander-in-chief
powers and thus are unconstitutional. In short, Yoo said torture was
legally defensible in court, which in effect, meant that it was.

Goldsmith said CIA officers called the memo the “Golden
Shield.”

---

In his 2006 book, The One Percent Doctrine,
investigative
reporter Ron Suskind described Zubaydah’s interrogation by the CIA.
“According to CIA sources, he was waterboarded, a technique in which a
captive’s face is covered with a towel as water is poured atop,
creating the sensation of drowning,” Suskind wrote. “He was beaten …
He was repeatedly threatened, and made certain of his impending death.
His medication was withheld. He was bombarded with deafening,
continuing noise and harsh lights.”

Waterboarding dates to the Spanish Inquisition and has long
been
considered torture. Indeed, American tribunals prosecuted and convicted
Japanese soldiers for waterboarding after World War II. The Bush
administration has acknowledged waterboarding Zubaydah, but has
maintained that it wasn’t torture – apparently in reference to Yoo’s
new definition.

The president also has contended that under “enhanced
interrogation
techniques,” Zubaydah gave up important intelligence, including helping
indentify Khalid Sheikh Mohammed, the self-professed chief planner of
the 9/11 attacks. But according to Suskind and reporter David Johnston
of The New York Times, the White House’s claims about Zubaydah
were wildly overblown. It turns out, he was nothing more than a
glorified al Qaeda travel agent with severe mental problems who
provided almost no vital information. Suskind reported that US
officials actually captured Mohammed thanks to a cooperative source who
guided CIA agents to his safe house. The US government then paid that
tipster a $25 million reward and safely relocated him and his extended
family in the United States.

Suskind also wrote that even though Zubaydah suffers from
“multiple
personalities,” his interrogators took his “confessions” as gospel.
Under duress, Zubaydah told make-believe stories of al Qaeda targeting
shopping malls, banks, supermarkets, nuclear power plants, water
systems, and apartment buildings, Suskind reported. Government agents
then scrambled in response. “Thousands of uniformed men and women raced
in a panic to each flavor of target,” Suskind wrote. “The United States
would torture a mentally disturbed man and then leap, screaming, at
every word he uttered.”

If Yoo’s first torture memo was a golden shield for the CIA,
the
second one provided similar cover for the Pentagon. According to a 2006
story in The New Yorker by investigative reporter Jane Mayer,
harsh interrogation methods had migrated in the fall of 2002 from the
CIA to the Defense Department-run prison at Guantanamo Bay, Cuba.
However, military lawyers there strongly objected, believing the new
techniques were illegal and amounted to torture. To settle the
disagreement, top Pentagon officials asked Yoo for a memo of their own.
He complied in March 2003.

Yoo has publically maintained that this second memo was never
meant
for Abu Ghraib, the notorious US prison in Iraq. But reporting by Mayer
and legal blogger Martin Lederman, a Georgetown University law
professor and former Office of Legal Counsel attorney in the both the
Clinton and Bush administrations, reveals that this is precisely what
happened. The Pentagon sent the very same officer who ran Guantanamo
Bay in late 2002 and early 2003 to Iraq a few months later.

That commander, Major General Geoffrey Miller, had been
briefed on
Yoo’s memo and given orders to “GTMoize” interrogation techniques
there, Lederman noted on the legal blog Balkinization. Sure
enough, the worst Iraqi prisoner abuse took place at Abu Ghraib from
the spring of 2003 to December of that year when Goldsmith rescinded
the second memo and told Pentagon officials they should no longer rely
on it. Yoo’s second memo, Lederman wrote, “is, in effect, the blueprint
that led to Abu Ghraib.”

Ironically, Goldsmith would have never had the authority to
withdraw
the torture memos had it not been for Yoo. In early 2003, the White
House nominated Yoo’s boss, Jay Bybee, then the head of the Office of
Legal Counsel, to be a federal appellate judge in the Ninth Circuit,
based in San Francisco. The White House reasoned that Bybee, another
extremely conservative lawyer who had co-signed Yoo’s first torture
memo but is not believed to have contributed significantly to it, would
be a perfect fit to counterbalance the traditionally liberal appellate
court.

Once Bybee got his judgeship, the White House wanted Yoo to
take
over the office, according to Goldsmith. But Attorney General John
Ashcroft refused. Goldsmith said Ashcroft resented Yoo because of his
tight relationship with the White House, especially with Gonzales and
Addington. So with Yoo out of the running, the Berkeley law professor
recommended for the job his good friend and fellow staunch conservative
Goldsmith.

About six weeks after taking over the office, Goldsmith
reviewed the
torture memos and was astonished at what Yoo had done. The opinions
reflected “bad judgment,” were “poorly reasoned,” and were completed
with an “unusual lack of care,” he wrote in his book. In what appears
to have been an unprecedented move, he then concluded he would have to
rescind the memos. He said that he knew of no other instance in which
an Office of Legal Counsel legal opinion had been rescinded by a
succeeding lawyer within the same administration. To make his decision
stick, he decided to quit his job on the day he rescinded the memos,
thus forcing the White House to approve their withdrawal or risk
turning his resignation into a huge news story.

By then, however, the Yoo memos had already taken their toll.
Not
only was Abu Ghraib an international embarrassment that harmed the
United States’ reputation around the world, it risked the lives of
captured US soldiers for years to come. But that was only the
beginning. Yoo’s memos also likely led to the deaths of prisoners.
Since he completed the first torture memo in August 2002, nearly one
hundred detainees have died while in US custody, according to a 2006
report by the liberal watchdog group Human Rights First. The group also
reported that its research found that during that time at least eight
people “were tortured to death.”

---

When the Abu Ghraib scandal broke in the spring of 2004, with
its
sickening photos of men piled naked atop each other or forced to wear
Ku Klux Klan-style hoods, John Yoo was safely back at Berkeley,
enjoying life in the East Bay. He had returned with little fanfare; at
the time, his torture memos were still secret. However, more than four
years later, much is now known about Yoo’s pivotal role in enabling
torture and mistreating prisoners. Yet somehow he continues to escape
condemnation on the supposedly liberal campus.

There has been no faculty or student uprising, no sense of
outrage.
In fact, the opposite is the case. Law students actually appear to
admire him. According to a blogger on the campus web site, Nuts &
Boalts, Yoo’s students this semester even gave him a round of applause
during his last day of class.

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.”

But what if no court ever indicts Yoo? Does that mean he’s
destined
to mold the minds of tomorrow’s top lawyers while continuing to stain
Boalt and UC Berkeley’s reputation for the next quarter century or
more? Not necessarily. Despite Edley’s contention that he has no
options, it turns out there are plenty of ways to get rid of Yoo.

---

The principle of academic freedom was enshrined in a pre-World
War
II agreement between college professors and universities. It’s
predicated on the idea that professors cannot be censored, disciplined,
or fired for exercising their free speech rights in their classrooms,
their scholarly work, or as citizens. But the 1940 Statement of
Principles on Academic Freedom and Tenure is not a blanket protection
of all speech. It also says professors “should at all times be
accurate, should exercise appropriate restraint, and should show
respect for the opinions of others.”

Goldsmith’s book provides compelling evidence that Yoo’s
torture
memos were not accurate, restrained, or respectful of other opinions,
which is why his fellow conservative rescinded them. Indeed, Goldsmith
asserted that some of Yoo’s more extreme conclusions “had no foundation
in prior OLC opinions, or in judicial decisions, or in any other source
of law.”

In other words, Yoo appears to have simply blown past opposing
views
and contrary legal opinions as he made up new law. “I think John
thought he was writing what ought to be the law, that he was writing
into the law what he thought it should be,” Georgetown Law Professor
Lederman said in an interview, indicating that what Yoo did was highly
unusual, if not unprecedented. Lederman served in the Office of Legal
Counsel with Yoo but said he was not aware of the torture memos until
they became public. It should be noted that Lederman told the Express
he does not believe Yoo should be fired by Boalt, but did not rule out
some sort of discipline short of that.

Even if the torture memos don’t violate the Statement of
Principles
on Academic Freedom and Tenure, there’s a case to be made that they’re
not protected by the very principle the agreement was based on – the
First Amendment. The US Supreme Court has long held that free speech is
not an absolute. In the seminal 1969 case, Brandenburg v. Ohio,
the court summed up its prior rulings that the constitution does not
protect speech that is “directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.”

It’s pretty clear that Yoo’s torture memos produced imminent
lawless
action. Yoo knew the CIA and the White House wanted to use harsh
interrogation methods on Zubaydah that would have violated the Geneva
Conventions and the US War Crimes Act. So he gave them a legal opinion
that allowed them to do just that – and more – without fear of ever
being brought up on charges by a US court. As Goldsmith explained: “If
the OLC interprets a law to allow a proposed action, the Justice
Department won’t prosecute those who rely on the OLC ruling.”

In that sense, there’s a good argument to be made that Yoo’s
work
traveled beyond mere speech into the realm of action, which the First
Amendment typically does not protect at all. Think of the difference
between saying you wish someone were dead and actually killing that
person. After all, Yoo was not some professor presenting a paper at a
scholarly symposium. His memos were official government work that
enabled people to be tortured – and quite possibly killed. As a member
of the War Council, Yoo did more that just churn out bad opinions; he
helped to plot Bush administration legal strategy in the war on terror.

Even if that were held to be an exercise of Yoo’s First
Amendment
rights, despite the strong evidence otherwise, Boalt could still show
him the door. For one thing, Edley was wrong: Under the University of
California’s Faculty Code of Conduct, tenured professors can be fired
for more than a criminal conviction. They also can be disciplined or
terminated for “violation of canons of intellectual honesty, such as
research misconduct.”

Although firings of tenured professors for research misconduct
are
rare, there is one recent example from a major university with similar
regulations to UC Berkeley. Last year, the University of Colorado’s
Board of Regents fired Ward Churchill, a controversial ethnic studies
professor. Churchill, a radical leftist, had made national headlines
for an outrageous essay written after 9/11 in which he called the
victims of the terrorist attacks, “little Eichmanns,” comparing them to
the notorious Nazi Adolf Eichmann, the architect of the Holocaust.
Churchill also suggested that they deserved to be killed.

Once the essay became public in 2005, it sparked an angry
backlash
and demands that he be fired, especially from conservative radio and
cable TV pundits, some of whom now scoff at the idea that Yoo should
suffer the same fate. The University of Colorado ultimately decided
that Churchill’s essay was protected by academic freedom. But during
its investigation discovered that Churchill had committed research
misconduct in some of his other scholarly work. A university panel
charged him with “plagiarism, misuse of others’ work,” and
“falsification and fabrication of authority.” In essence, he ripped off
other people’s ideas and made stuff up.

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.

Still, that doesn’t mean that UC Berkeley has to sit on its
hands.
The university, through tenure rules, certainly has the ability to
investigate whether Yoo committed research misconduct or violated the
canons of intellectual honesty. And Boalt itself should examine whether
the professor breached legal ethical standards. Based on the evidence,
both investigations are justified.

Granted, the ten-campus University of California rarely fires
tenured professors. According to the president’s office, it has only
happened five times in the past twenty years. And only one of those
occurred at Berkeley. In 1991, the university fired Michel Strickmann,
an associate professor of Asian languages. According to a report from
that year in The New York Times, Strickmann was dismissed for
allegedly sexually harassing several students, though he was never
convicted of any crime. Similarly, in 2002, John P. Dwyer, then the
dean of Boalt Hall, resigned in disgrace amid allegations that he
sexually harassed a former law student.

Those examples make it clear that if UC Berkeley fails to
investigate and fire Yoo, it will send an unmistakable – and perverse –
message. If you’re a professor, and you cross the line with a coed, it
will cost you your job. On the other hand, you can violate moral,
ethical, and legal standards. You can hurt the reputation of your
university and your country. You can bring shame upon the nation and
harm its standing in the world. You can put our soldiers at risk
unnecessarily. You can enable people to be humiliated, tortured, and
possibly even killed. And, aparently, you can do it all in the name of
“academic freedom.”