Should Berkeley Fire John Yoo??? Forum

[Formerbruin]

He willingly and knowingly broke the law.

Which law would that be?

Yes, please state the law he broke.

He broke the Convention Against Torture, which was signed by the US, and ratified as law. The question is, of course, whether water boarding and the stress positions actually constitute torture. Nevertheless, as my previous post states, he would have to be found guilty in a criminal court before he could be ousted from berkeley.

http://en.wikipedia.org/wiki/United_Nat ... ies_of_CAT

Just so we're clear, the Convention Against Torture is not enforceable against individuals. I'll repeat that. The Convention Against Torture is not enforceable against individuals. The Convention applies to states only. Now, he could potentially be found guilty for War Crimes under the Rome Statute, but that's another matter entirely.

Plus in the legal world, there really isn't an ethical issue so long as:
1) Yoo's analysis was independent, and
2) his legal analysis isn't completely out of whack.

Since Yoo's position has been consistent since before his tenure in the White House, and since whether or not his legal analysis is out of whack is a debatable point, I don't see much in the way of ethical sanctions by the ABA.

[prezidentv8]

oh my god....the video is fantastic

[Bosque]

"Hate the game, not the player"

My bad. I just realized I'm hating the player.

Yoo must be brilliant.

2 + 2 = 5

It does actually, for very large values of 2.

[TopCat]

Absolutely not. Yet. I disagree with his take on torture but in all fairness, he needs to be indicted by an authoritative entity before a cause can be shown to fire him (i.e. convicted of a misconduct vis a vis his stint with the Bush admnistration). Due process, if you will. I hate the right wing extremists like everyone else here but the hatred/repulsion is not enough to claim that he knowingly (and maliciously) stepped over ethical/professional/legal responsibilities. I am with Leiter on this one (for once):

http://leiterlawschool.typepad.com/leit ... int-1.html

[Oblomov]

He broke the Convention Against Torture,

He did?

Uh, not according to any court.

Please. By sheer ontology he has. Of course, in a court of law he would be presumed innocent. Should no one be arrested, tried and prosecuted in a court for a violating the law simply because a court has deemed the individual beforehand? Come now.


From Thomas's dissent in Hamdan, h/t Glenn Greenwald (Greenwald: "Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so"):
"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions)."

I have to admit, it would be funny see him thrown in the Joseph K. legal morass that he helped foster and burry others in. "We not saying you're guilty, we're saying you are not entitled to protest your innocence. Under prevailing doctrine, the Obama administration suspects that you've provided material aid to terrorists (recruitment) and that you thus pose a security threat to the US and will be held in connection with the war on terror. There is no doubt that you are not a prisoner of war because the administration has no doubt."

[Rotor]

So, three years from now, you've graduated and are working as an associate for a BigLaw firm on a case where your client's position is diametrically opposed to your moral sensibilities. What are you going to do? Quit? If not, you have a duty to represent your client to the best of your ability. IMO, Yoo simply provided a vigorous case for his client and as distasteful as I find the end result, I'm not going to presume to compare my lay opinion (based largely upon equally agenda ridden counter analysis) with years of established legal scholarship. As others have said above, opinion is varied and that's shaky ground to be rattling the saber to fire him.

Note: I disagree with using the methods justified for very personal reasons. Were I to have been shot down & captured, the fact that we instituted such a policy would have justified other states or non-state actors to do the same to me and my crew. Someday, I'm afraid we will see the negative repercussions of the path we took.

[JJim1919]

Just so we're clear, the Convention Against Torture is not enforceable against individuals. I'll repeat that. The Convention Against Torture is not enforceable against individuals. The Convention applies to states only. Now, he could potentially be found guilty for War Crimes under the Rome Statute, but that's another matter entirely.

Plus in the legal world, there really isn't an ethical issue so long as:
1) Yoo's analysis was independent, and
2) his legal analysis isn't completely out of whack.

Since Yoo's position has been consistent since before his tenure in the White House, and since whether or not his legal analysis is out of whack is a debatable point, I don't see much in the way of ethical sanctions by the ABA.

Sorry, but I'm not sure that what you are saying is correct. If you read this article (http://www.counterpunch.org/cohn05062008.html), it basically re-states the idea that people can be prosecuted for torture under federal statutes, as well as the treaty.

[dresden doll]

I'm conflicted about this case - I think what Yoo did was heinous - I'd really like to see that kind of behavior deemed professionally unethical. But, if it isn't, then I reluctantly agree that he should be protected by tenure.

Also, just because someone's a great teacher isn't enough of a reason to keep them tenured and on staff. Being a professor is about a lot more than just teaching.

My thoughts exactly. I also second Esc's post. Knowing Yoo teaches there makes me feel a lot better about not attending Berkeley in the fall.

[jessicaw]

Research misconduct, eh? Interesting idea.

Anybody read about that Harvard child psychiatrist who was giving bi-polar meds to tots? (and unsurprisingly had a profitable relationship with pharmacutical companies). He should definitely get his assed kicked for research misconduct, but instead his ideas have proliferated the field of child psychiatry.

Thinking about that makes me furious in the same was that John Yoo makes me furious.

Maybe Berkeley cant fire him, but goddamn I wouldn't want a single penny of my tuition going to his paycheck.

[OperaSoprano]

He broke the Convention Against Torture,

He did?

Uh, not according to any court.

Please. By sheer ontology he has. Of course, in a court of law he would be presumed innocent. Should no one be arrested, tried and prosecuted in a court for a violating the law simply because a court has deemed the individual beforehand? Come now.


From Thomas's dissent in Hamdan, h/t Glenn Greenwald (Greenwald: "Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so"):
"[T]he experience of our wars," Winthrop 839, is rife with evidence that establishes beyond any doubt that conspiracy to violate the laws of war is itself an offense cognizable before a law-of-war military commission. . . . . In [World War II], the orders establishing the jurisdiction of military commissions in various theaters of operation provided that conspiracy to violate the laws of war was a cognizable offense. See Letter, General Headquarters, United States Army Forces, Pacific (Sept. 24, 1945), Record in Yamashita v. Styer, O. T. 1945, No. 672, pp. 14, 16 (Exh. F) (Order respecting the "Regulations Governing the Trial of War Criminals" provided that "participation in a common plan or conspiracy to accomplish" various offenses against the law of war was cognizable before military commissions)."

Dear Badlydrawn,

I take everything back. You are welcome to insult NYC and myself 12 times per day if it will give you the slightest pleasure. Thank you for posting awesome things that need to be said. Your erudition upon this subject far exceeds mine, but if we still had weight, you would be quite heavy right now. I don't know that Berkeley can fire John Yoo, but this reprehensible individual certainly deserves to answer for his actions before the international community. I am ashamed of Berkeley, though it is my father's alma mater (PhD, Operations Research.)

Yours simply and sincerely,

OS

[Rotor]

Just so we're clear, the Convention Against Torture is not enforceable against individuals. I'll repeat that. The Convention Against Torture is not enforceable against individuals. The Convention applies to states only.

[edited for length]

Sorry, but I'm not sure that what you are saying is correct. If you read this article (http://www.counterpunch.org/cohn05062008.html), it basically re-states the idea that people can be prosecuted for torture under federal statutes, as well as the treaty.

Did you read the convention?? Nearly every Article, and most paragraphs specifically references State Parties. The only place individual prosecution comes in under the Convention is in the requirement of State Parties to pass laws prohibiting torture.

But thank you for referencing a self described political newsletter to provide an example of what I meant in my first post about biased counter analysis.

[JJim1919]

Just so we're clear, the Convention Against Torture is not enforceable against individuals. I'll repeat that. The Convention Against Torture is not enforceable against individuals. The Convention applies to states only.

[edited for length]

Sorry, but I'm not sure that what you are saying is correct. If you read this article (http://www.counterpunch.org/cohn05062008.html), it basically re-states the idea that people can be prosecuted for torture under federal statutes, as well as the treaty.

Did you read the convention?? Nearly every Article, and most paragraphs specifically references State Parties. The only place individual prosecution comes in under the Convention is in the requirement of State Parties to pass laws prohibiting torture.

But thank you for referencing a self described political newsletter to provide an example of what I meant in my first post about biased counter analysis.

We have a federal statute against torture. It is 18 U.S.C. § 2340. (http://www.law.cornell.edu/uscode/18/us ... _113C.html).

Plus, Yoo could be prosecuted under international law for war crimes. (http://en.wikipedia.org/wiki/Torture_an ... ted_States)

I don't know why you are fighting this. Torture is illegal in the United States - plain and simple. Whether this is torture or not as per the guidelines, is another question.

[Rotor]

Question for the prosecute John Yoo crowd. How far down the chain do you go in drafting indictments? Yoo didn't write the memos by himself. Research associates who scoured case law for precedent and justification? Those who were consulted in the drafting of the language and/or offered opinion consenting or advocating changes that appeared in the final draft?

This is complicated business and the issues are broader than just academic freedom. There is a reason it's called legal opinion and not legal absolute.

(Again just to remind folks, I am not defending the opinion of the memos. Quite the contrary. However, like the Dean Edley quote above, unless there is clear and convincing malfeasance, he was exercising his professional opinion)

[JJim1919]

Question for the prosecute John Yoo crowd. How far down the chain do you go in drafting indictments? Yoo didn't write the memos by himself. Research associates who scoured case law for precedent and justification? Those who were consulted in the drafting of the language and/or offered opinion consenting or advocating changes that appeared in the final draft?

This is complicated business and the issues are broader than just academic freedom. There is a reason it's called legal opinion and not legal absolute.

(Again just to remind folks, I am not defending the opinion of the memos. Quite the contrary. However, like the Dean Edley quote above, unless there is clear and convincing malfeasance, he was exercising his professional opinion)

I think he was more or less just giving his opinion. I would not prosecute Yoo, or anyone for that matter, but I can see how someone like Rumsfeld might be more culpable. Personally, I would have a non-partisan fact finding commission look into the matter and expose everything we have done, so we can learn from our mistakes and move on. I would have officials correct the failures in the chain of command, and I would have congress draft new legislation making it clearer that water boarding and the like constitute torture and are strictly prohibited.

There was a clear debate going on in the past, and even today, I'm do not think that there is a clear consensus that waterboarding should NEVER be used, even if it would save american lives (which is what Cheney claims it did).

[sbalive]

So, three years from now, you've graduated and are working as an associate for a BigLaw firm on a case where your client's position is diametrically opposed to your moral sensibilities. What are you going to do? Quit? If not, you have a duty to represent your client to the best of your ability. IMO, Yoo simply provided a vigorous case for his client and as distasteful as I find the end result, I'm not going to presume to compare my lay opinion (based largely upon equally agenda ridden counter analysis) with years of established legal scholarship. As others have said above, opinion is varied and that's shaky ground to be rattling the saber to fire him.

Note: I disagree with using the methods justified for very personal reasons. Were I to have been shot down & captured, the fact that we instituted such a policy would have justified other states or non-state actors to do the same to me and my crew. Someday, I'm afraid we will see the negative repercussions of the path we took.

See, this is the problem in my mind. In Law, the prevalent ethos is that yes, you represent the client. That is the ethical responsibility. But, I would argue that it's too limiting. There has to be some limit. Let's take this to an extreme - would you provide a legal case for genocide? Well, no, obviously. So, there's one limit. How about internment? Where is the line? At what point are you enabling someone to harm someone else? Does this extent to actions that destroy the environment?

There have to be some limits. If you just say, well, if I don't do it somebody else will, that does not absolve you of fundamental moral responsibilities - should that mean lawyers are not bound by any responsibilities in terms of the cases they work on and the clients they work to represent?

[Rotor]

We have a federal statute against torture. It is 18 U.S.C. § 2340. (http://www.law.cornell.edu/uscode/18/us ... _113C.html).

Plus, Yoo could be prosecuted under international law for war crimes. (http://en.wikipedia.org/wiki/Torture_an ... ted_States)

I don't know why you are fighting this. Torture is illegal in the United States - plain and simple. Whether this is torture or not as per the guidelines, is another question.

I agree on your statements above. There is federal statute, but the memos were legal justification around the statutes. But the assertion was made that individuals could be prosecuted under the Convention Against Torture and I agree with FB they cannot. I made no assertion about War Crimes.

The thread is not "Were the opinions of John Yoo Legal?" it is should he be fired? Until I have read the rationale behind the memos (and not second hand or third party references to the justification), I think any lawyer acting in his capacity to provide legal opinion should be free to do so, regardless how controversial as long as there is reasonable rationale for that opinion. And nothing I have read on the topic indicates a level of wrongdoing to warrant professional censure. It may be out there, but I haven't seen it and until I do, I want to have my right to form dissenting legal opinion without fear of personal retribution protected.

[wardboro]

We have a federal statute against torture. It is 18 U.S.C. § 2340. (http://www.law.cornell.edu/uscode/18/us ... _113C.html).

Plus, Yoo could be prosecuted under international law for war crimes. (http://en.wikipedia.org/wiki/Torture_an ... ted_States)

I don't know why you are fighting this. Torture is illegal in the United States - plain and simple. Whether this is torture or not as per the guidelines, is another question.

I agree on your statements above. There is federal statute, but the memos were legal justification around the statutes. But the assertion was made that individuals could be prosecuted under the Convention Against Torture and I agree with FB they cannot. I made no assertion about War Crimes.

The thread is not "Were the opinions of John Yoo Legal?" it is should he be fired? Until I have read the rationale behind the memos (and not second hand or third party references to the justification), I think any lawyer acting in his capacity to provide legal opinion should be free to do so, regardless how controversial as long as there is reasonable rationale for that opinion. And nothing I have read on the topic indicates a level of wrongdoing to warrant professional censure. It may be out there, but I haven't seen it and until I do, I want to have my right to form dissenting legal opinion without fear of personal retribution protected.

+1

This is fantastic stuff. Thank you.

What you might consider "reasonable rationale" is what your neighbor considers "too preposterous to entertain." And vice-versa. Many of you are starting to sound like the thought police. Even some of the legal justifications of landmark Supreme Court decisions are pretty tenuous. Let's not start a precedent that leaves half of TLS disbarred before they retire.

[aer]

So, three years from now, you've graduated and are working as an associate for a BigLaw firm on a case where your client's position is diametrically opposed to your moral sensibilities. What are you going to do? Quit? If not, you have a duty to represent your client to the best of your ability. IMO, Yoo simply provided a vigorous case for his client and as distasteful as I find the end result, I'm not going to presume to compare my lay opinion (based largely upon equally agenda ridden counter analysis) with years of established legal scholarship. As others have said above, opinion is varied and that's shaky ground to be rattling the saber to fire him.

Note: I disagree with using the methods justified for very personal reasons. Were I to have been shot down & captured, the fact that we instituted such a policy would have justified other states or non-state actors to do the same to me and my crew. Someday, I'm afraid we will see the negative repercussions of the path we took.

It is one thing to defend someone in court who has committed an act in the past and another thing entirely to tell someone that their action is legal and to go ahead and do it.

[sbalive]

What you might consider "reasonable rationale" is what your neighbor considers "too preposterous to entertain." And vice-versa. Many of you are starting to sound like the thought police. Even some of the legal justifications of landmark Supreme Court decisions are pretty tenuous. Let's not start a precedent that leaves half of TLS disbarred before they retire.

It's not a debate tournament when human beings are tortured. Looking in the abstract, yeah, let's talk about "thought police" and "censorship" and "academic freedom". But, think of what happened to actual live people. Think of what was allowed to happen by not thinking through the consequences of "limited" torture. This wasn't a panel discussion or an article in a law review journal. These were real things done to real people that caused real pain and psychological damage.

[Rotor]

SBAlive. Agree. The problem is there is no big yellow line painted in the books saying Do Not Cross. Maybe it is because I've spent 20 years in the Navy and have lived the ethical dilemmas on the Rules for the Use of Force/Rules of Engagement that I'm not so quick to circumscribe limits as closely as others.

While I never had to fire a shot, I would not have wanted to be afraid to defend myself if the situation called for it for fear of Monday morning quarterbacks. If I broke ROE, send me to jail. If not, then don't.

I like the idea of a commission, buthow independent could it really be?

[sbalive]

SBAlive. Agree. The problem is there is no big yellow line painted in the books saying Do Not Cross. Maybe it is because I've spent 20 years in the Navy and have lived the ethical dilemmas on the Rules for the Use of Force/Rules of Engagement that I'm not so quick to circumscribe limits as closely as others.

While I never had to fire a shot, I would not have wanted to be afraid to defend myself if the situation called for it for fear of Monday morning quarterbacks. If I broke ROE, send me to jail. If not, then don't.

I like the idea of a commission, buthow independent could it really be?

Yeah, I mean, I'm totally conflicted on this too - I just think a lot of people are being way too cavalier about it.

The problem is that everything has become so partisan in the US. Maybe it was always like this, but I could swear there was a time when there were people who were so unimpeachable that everyone would consider them "independent". I don't know who those people would be either.

[Rotor]

What you might consider "reasonable rationale" is what your neighbor considers "too preposterous to entertain." And vice-versa. Many of you are starting to sound like the thought police. Even some of the legal justifications of landmark Supreme Court decisions are pretty tenuous. Let's not start a precedent that leaves half of TLS disbarred before they retire.

It's not a debate tournament when human beings are tortured. Looking in the abstract, yeah, let's talk about "thought police" and "censorship" and "academic freedom". But, think of what happened to actual live people. Think of what was allowed to happen by not thinking through the consequences of "limited" torture. This wasn't a panel discussion or an article in a law review journal. These were real things done to real people that caused real pain and psychological damage.

And the devil's advocate would say "exactly". Think about what these people are doing to innocent people around the world. Surely torture is less reprehensible than mass murder.

Again not my opinion. Just sayin.

[wardboro]

What you might consider "reasonable rationale" is what your neighbor considers "too preposterous to entertain." And vice-versa. Many of you are starting to sound like the thought police. Even some of the legal justifications of landmark Supreme Court decisions are pretty tenuous. Let's not start a precedent that leaves half of TLS disbarred before they retire.

It's not a debate tournament when human beings are tortured. Looking in the abstract, yeah, let's talk about "thought police" and "censorship" and "academic freedom". But, think of what happened to actual live people. Think of what was allowed to happen by not thinking through the consequences of "limited" torture. This wasn't a panel discussion or an article in a law review journal. These were real things done to real people that caused real pain and psychological damage.

This presupposes what it is trying to conclude. If you're willing to say it was torture, and there was no academic disagreement that it was torture, and no reasonable person could consider this anything but torture, then sure, your premise sounds alright.

It was a tense time in the country, and there was a lot of impetus to get information. Back then nearly everyone agreed that getting proper information from these guys was a big deal. In retrospect that consensus has changed, but I would guess if you asked Americans shortly after 9/11 if waterboarding was an okay way to get information, that you'd have a supermajority who agreed. They wouldn't have called it torture either. Maybe that's just semantics, though. They would have said that torture is severing heads of people while you videotape it.

Morality is dictated by general consensus for the most part. If you can't author a legal opinion that the majority of Americans at the time would agree with, then what can you do?

I know you're trying to bring this back and realize these are "real people with real feelings." I respect that, but I think your conclusion is wrong.

[Rotor]

And as fun as this has been, dinner is ready. And I'm more afraid of pissing off my wife than interested in keeping Yoo on faculty (edit: via TLS at least). Later.

[singularity]

It was a tense time in the country, and there was a lot of impetus to get information. Back then nearly everyone agreed that getting proper information from these guys was a big deal.

For more context -

"But torture is meant to be terrible, and we must judge the torturer in the context of his own desperation"

http://www.stratfor.com/weekly/20090420 ... ce_failure


Pretty pathetic really.