War crimes start at the top. The torture and deaths at Abu Ghraib and Guantanamo; the humiliation of Iraqi and Afghani detainees in the field; extraordinary rendition; the indiscriminate killing by rifles and cluster bombs; these are becoming the new norms of war for which the leaders in the United States are responsible. And as with the war crimes of the past, the spilling of blood began with the spilling of ink. The most culpable are not the young foot soldiers in fatigues holding a naked prisoner with a dog leash; they are the men and women in suits who craft the policies.
John Yoo is one of those men in suits, and it is disgraceful that he is paid by the people of California to shape the law and young minds at one of our most distinguished law schools. As an organization, the National Lawyers Guild released a press release in April stating that Yoo ought to be tried as a war criminal and dismissed by the University of California Berkeley – Boalt Hall, where he is currently a law professor.
Academic freedom is a serious issue and must be addressed in this debate. We’ve all seen how universities have used tenure and other means to fire and at least attempt to silence leftist academics. But just because University officials have a bad track record when it comes to hiring, firing and promoting professors, doesn’t mean we shouldn’t push them to do the right thing when the circumstances call for it. In this case, we should acknowledge that the University ought to provide due process, despite the fact that victims of Yoo’s legal framework lacked such protection. However, we should urge University officials to move forward with the normal proceedings for dismissing a professor, taking into consideration the seriousness of the harm caused and the power Yoo had in crafting his memoranda.
According to Dean Christopher Edley, neither the harm caused nor the power and responsibility a professor wields constitute the test for taking action against Yoo. As Edley wrote on the Boalt website: “As a legal matter, the test here is the relevant excerpt from the ‘General University Policy Regarding Academic Appointees’, adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents: Types of unacceptable conduct: … 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.”
In this case Yoo clearly violated the second part of the standard put forth by Edley, but he has yet to be convicted of a crime by any court of law. It shouldn’t matter. The same Personnel Manual Edley sites states that “Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action …” It also specifically states as a reason for discipline: “Serious violation of University policies governing the professional conduct of faculty, including but not limited to policies applying to research, outside professional activities, conflicts of commitment, clinical practices, violence in the workplace, and whistleblower protections.”
There are a lot of facts for Boalt Hall to consider in the course of a fair hearing. His memoranda and other evidence have been presented in the public domain, and Yoo has not distanced himself from any of it. Hopefully a court of law will eventually come to the conclusion that he (and Rumsfeld, Gonzalez, Bush, Cheney, et.al.) is guilty of a crime, but it isn’t clear that the right-leaning justice system in this country will take action without a great deal of pressure, if at all. Regardless, the law is pretty clear about how such prisoners should be treated. More importantly, the fact that Yoo ignored important and universal moral principles in the substance of his memoranda, and the very decision to submit his memoranda knowing what the consequences would be, is shocking. If the University of California discovered that a UCSF medical professor had knowingly contributed to illegal research that harmed human subjects, would they allow her to continue teaching? I sincerely hope not, and depending on the facts, I would urge them to take some sort of action, even if this hypothetical professor had yet to be prosecuted or convicted of any crime.
Boalt ought to also consider the power and responsibility Yoo had when he wrote his memoranda. He wasn’t writing an opinion for a small business or county government. He was writing for the most powerful military and most powerful regime on the planet as they engaged in a global war; and he was writing about prisoners who were already captured and fully secured.
The other very live question that lawyers and legal scholars are asking is whether attorneys should face criminal consequences for their purely professional conduct. But this presumes that the issue is merely one of bad or faulty legal advice or that the act is one that falls fully within Yoo’s professional conduct. In this case the analogy is more like a lawyer advising his client that committing assault is perfectly legal, where assaulting someone is both illegal and immoral, and the attorney is really just trying to push the limits of the law to provide cover for his client’s beating up someone.
There is precedent for criminal liability against attorneys in circumstances not unlike the Yoo case. Philippe Sands, among others, has recently revisited the Nuremberg case of United States v. Altstoetter in a scathing two-part story in Vanity Fair called “The Green Light.” Sands writes that the case “had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes.” The principal defendant in that case was imprisoned for five years, primarily for performing as an attorney – giving legal advice (or more accurately legal cover) for the “disappearing” of political opponents of the Nazi regime.
John Yoo created a legal framework that would allow torture; and just like the lawyerly work that led to convictions in Altstoetter, it wasn’t done as a purely academic or philosophical exercise. He created this framework to enable torturers; to give cover and help set in motion policies that would directly lead to the pain, suffering and death of prisoners held by the United States against accepted international law. This is why Yoo ought to be dismissed by Boalt, disbarred, and prosecuted for war crimes.
CARLOS VILLARREAL is Executive Director of the National Lawyers Guild San Francisco Bay Area Chapter. He can be reached at email@example.com.