A Tortured Defense
In 2003, when he was a deputy assistant U.S. attorney general, John Yoo wrote a long legal memorandum arguing that the president has the inherent constitutional authority to torture people.
Furthermore, Yoo claimed, the president’s power to torture can’t be limited by Congress, the courts, or international treaties. As long as the torture is being carried out because the president believes it’s necessary, Yoo argued, it’s legal and cannot be made illegal.
Yoo’s arguments bothered some people quite a bit. His memo, after all, was not merely some academic exercise. Yoo provided the U.S. government with a handy legal justification for committing acts normally considered war crimes, and our government duly proceeded to torture hundreds of people in Iraq and Afghanistan, as well as at Guantanamo Bay (several of the victims died as a result).
Yoo then returned to his tenured professorship at Berkeley’s law school. Now some of the people who were unhappy with Yoo for helping our government commit war crimes are wondering whether any of this might be relevant to Yoo’s current employment.
That has upset Brian Leiter no end. Leiter, a professor of law and philosophy at the University of Texas and the author of a popular blog, practically exploded with outrage at the suggestion that a law professor who makes shoddy legal arguments that facilitate the commission of war crimes ought to incur some negative professional consequences.
Leiter claims that anyone calling for Yoo to be fired is “calling for him to be punished for his ideas, and nothing else.” This is absurd. What’s at issue aren’t Yoo’s ideas, but rather the very real possibility that he is a war criminal. (Indeed, U.S. courts have established what Columbia law professor Scott Horton describes as “a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.”)
What’s especially odd about Leiter’s impassioned defense of Yoo is that Leiter also claims the Bush administration is guilty of numerous war crimes, and that, in his words, “Bush and his gang of war criminals deserve to have their status confirmed by a court of law.”
Furthermore, Leiter believes Yoo’s legal arguments justifying torture as a weapon in what Leiter calls “the fake war on terror” are clearly wrong.
Leiter’s defense of Yoo adds up to this: Yoo hasn’t been convicted of war crimes, and it isn’t even clear he’s personally guilty of war crimes, since he was merely giving his superiors advice on how to commit war crimes under color of law, as opposed to actually committing the crimes himself. Thus to suggest he deserves to be fired is nothing but an attack on academic freedom.
What I find most offensive about this sort of argument is its lack of seriousness. To echo Orwell, it could only be made by someone for whom “torture” is at most a word.
Leiter thinks various members of the Bush administration are war criminals, and that their worst crimes — crimes for which they should apparently be subjected to Nuremberg-style prosecution — include the systematic torture of helpless prisoners in the name of a phony “war on terror.”
Anyone who believes this must also acknowledge that John Yoo’s eagerness to make specious legal arguments in support of torture seems to have led directly to lots of people being tortured, some to death.
Under such circumstances, it takes a twisted sense of moral priorities to get outraged about the (very slim) possibility that Yoo might lose his academic sinecure because he went out of his way to help the U.S. government commit war crimes.
In the end, I suspect that for Leiter, as for so many professors of this or that, words such as “torture” and “war crimes” are indeed nothing more than words, with which they can continue to play their petty and useless academic games.
Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.
© 2008 The E.W. Scripps Co.
A lot of you are missing the point. This is a glorious period of honesty by the US government. All of the covert torturing and wars supported and encouraged around the world by the US in the last 50 years were denied by the government. Now they are not only overtly admitting their crimes they are embracing them. I wonder though if the torture feels better knowing it is being done truthfully.
‘A twisted sense of moral priorities’…that says it all. From the wars we studied in history class as children on up to the terror that is well underway in this century. That we claim to be bringing freedom to other peoples should sicken us…instead it sickens the rest of the world. We are a country led by phonies and hypocrites whose reaction to every crisis has been to toss more fuel on the fire.
I think I am with Leiter on this one. GThe same tolerance that allows oo to stay ast Berkley (and Feith to similarly have employment at Georgetown and Ashcroft to work for
Regent Law School at Pat Robertson U, also allowed Noam Chomsky to stay at MIT, Chalmers Johnson to hold forth at San Diego State, and Michael Parenti at whereever he might be teaching.
College should be a place where scholarly people with controversial views can hold forth and provoke, anger, inform, inspire and otherwise engage the intellects of their students. Let them stay and write their books and pronounce their pronouncements. The next genreation needs to practice the critical thinking skills to discern between intellectual gold and manure.
Is there really ANY justfication for torture? Do we want someone teaching our students that there is?
Ward Churchill paid a price for his ideas, didn’t he?
A great discussion, but I’m not 100% on board.
Though I think that all the behind the scenes idea men should be brought into the light somehow, focusing on someone like Yoo too much could wind up as a red herring or at least watering down the focus on those more directly involved in what the future will hopefully see as war crimes.
Under the current administration we’ve seen an amazing number of people step down from their offices to lessen the pressure on their superiors, and though the administration is still stumbling around at record low approval ratings, no one is calling for blood after their numbing number of offenses.
I would hate to see someone like Yoo wind up taking blame while the higher ups of the Bush Administration are skipping off into retirement.
Bring everyone into the light, absolutely, but letting the underlings take the highest responsibility is a crime in itself.
One could apply Leiter’s defense to the (mythical?) Usama bin Laden, whose “fatwas” amount to “bad legal advice.” As long as UBL sticks to issuing “legal” justifications for violence and not actually engaging in violence, he too could find safe harbor in academia.
“Alan Dershowitz, the civil libertarian defender of O.J Simpson, believes the law should sanction torture so it may be applied in certain cases, such as terrorist acts.” (CBS News.)
Should he be disbarred for his opinion? Should he be refused professorships because he believes torturing other humans would be okay if we did it “out in the open?”
Crazy anti-American Yoo is the distraction. Ultimately, his superiors had a choice: accept his sick, twisted “justifications” (it’s not torture if you live,) or have him committed. They chose the former BEFORE Yoo ever showed up - he just happened to be the first traitor willing to put it on paper.
If my lawyer hands me a piece of paper that claims I have the right to torture my employees, he is not guilty of a crime.
Koalaburger wrote: “This is a glorious period of honesty by the US government. All of the covert torturing and wars supported and encouraged around the world by the US in the last 50 years were denied by the government. Now they are not only overtly admitting their crimes they are embracing them.”
All kidding aside, I think too many people are fooled by this sense that Bush administration motives (and crimes) are more overt than those of past administrations. The torture and wars are now overt because much of the American public thinks they are justified and essential to our security. Problem is, the “triggers” which provided the justification and have been exploited to manipulate public opinion are themselves, more often than not, covert operations. Not only is our leadership NOT admitting to these false flag attacks, but they have been very effective in making discussion about government complicity in such operations (as for example, the 9/11 attack) taboo.
The future of John Yoo as a law professor should be determined not by the content of his ideas but by the quality of legal reasoning he displayed in coming to those conclusions. As odious as those conclusions are, more frightening is the fact that he may be teaching his students to use the same tortured logic he employed.
Yoo reminds me of the German judges who failed to use their educations to halt the obvious mis-carriages of justice during the rise of the Third Reich. He, too, should be held accountable, but only after those who sought his rationalizations as legal cover.
It’s a strange opinion for a lawyer to make that giving advice to help crooks avoid justice is not unethical. Yoo should indeed be fired from Berkley for his pro-torture advice. That is a no-brainer. Weren’t the mafia lawyers charged back when the gov’t was wanting to be seen as fighting organised crime?
All this points to that famous quote - (help - I can’t remember the source).
‘The law is a ass!’
I wanted to be a lawyer when young, then saw that in order to succeed, I would have to suspend any and all moral or ethical belief in defense of or prosecution for clients.
I couldn’t do it.
Who wants to study law under a law professor whose thinking is so sloppy that virtually all well known constitutional lawyers disagree with him? Yoo doesn’t belong at Berkley because he is not a competent lawyer, not because of his views. As I think someone suggested , he belongs at Pat Robertson U. if he wants to teach somewhere.
Yoo was born much too late. If he were lawyering in the 1930’s in Germany, he’d be very useful in drafting the “Nuremberg Laws”
Persue War Crimes charges. Academia has brutal luddites who serve in the White Tower,
consulted to push forward agendas of behalf of their rogue Governments.
Staunch conservatives are in an evolving academic landscape, and it is one which is much more cozy with uber-business, then at times in the past.
Certainly a threshold has been crossed, something subtle has evaporated when you legitimize depravity.
I would be interested to hear any comments by the students of Yoo.Does he get a hammering? Is he listened to respectfully?
Come on you Yoo students.We know you are reading these blogs,so how about a few words from the front line!
This is what Yoo’s students have had to say so far. Not the best rating I have seen for a prof, not even some of the worst ones I have had myself. http://www.ratemyprofessors.com/ShowRatings.jsp?tid=581083
Personally, I would just not sign up for his classes were I a law student at Berkeley. It would impact his tenure.
There was no hesitancy in the conservative community in punishing Jose Padilla for his ideas, nor at Nuremburg for punishing Goebbels et al for theirs. Conspiracy is a longstanding legal concept, and this argument is nothing but special pleading. The issue isn’t that he’s incompetent, it’s that he is grossly unethical and advocated felonious conduct which resulted in numerous crimes. Hitler never killed anyone with his own hands, but his ideas killed 60 million. Would Leiter exonerate him, too? Yoo should be fired, disbarred and tried.
Prof. Finkelstein was denied tenure at De Paul U. for his views about Israel.
Hooray for American academia!
Legitimizing torture is a matter of ‘academic freedom’ but criticizing Israel is a career-ender.
108 “War on Terra” POW “detainees” are known to have been tortured to death by the US government…that makes Yoo an accessory to murder, and an accessory to war crimes and crimes against humanity…
To “A Voice Apart”.
Thanks kindly for your reply.Thin pickings,but one must assume too much comment from people at the beginning of their careers may be a dangerous act in a Bush vindictive type govt…Sad,sad situation.
Any and all who advocated and helped push through the supposed “right of the President to torture” should be prosecuted for war crimes, that includes Yoo.
What sick mind would draft memos and site reasons for torture?
Nail them all….up to the top and down to the bottom…and no pardons allowed.
Perhaps the “do unto others as you would have them do unto you” might solve the problem. Give them a taste of their own medicine and make them tell the truth…cough cough.
I agree, accessory to murder.
frank,
When you are helping shape policy and lending legal aid to advocate torture…you are doing someting wrong.
Lawyers are not supposed to encourage anyone to break the law….
Torture goes against the Constitution…Yoo was advocating and lending to breaking the law.
“The law, sir, is an ass.” Curmudgeon, think Dickens…..
It is not for his opinion that Yoo is liable to prosecution, but for his opinion as an agent of the government, one that became policy. Whether or not Yoo should be discharged from Berkeley Law School is not the real issue, nor do I believe that he should be fired, not until he is convicted by a court of law along with so many of his fellow administration figures…..
Pipe dream alert…..
I ,personally, find it difficult to understand someone who would advocate for such a heinous crime.
Yoo might be seen as as the Admination’s “few low level bad apples” in the Abu Ghraib scander. However, I do believe in torture under ONE condition, eye for an eye, and a tooth for a tooth. Other words, I believe anyone who has performed or ordered torture should be tortured.
Tsunami: Yeah, but who is going to do it? A sane person won’t - and the crazy ones shouldn’t be allowed to get their rocks off doing it. I still would nominate Cheney to demonstrate - and maybe Rumsfeld, Wolfie, and a few others. Then it would be acceptable - if they agreed, just to prove that it did no ‘permanent’ damage…