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Furor Over UC Prof's Brief on War; He Advised Bush on Prisoners' Rights
Published on Monday, June 7, 2004 by the San Francisco Chronicle
Furor Over UC Prof's Brief on War
He Advised Bush on Prisoners' Rights
by Robert Collier
 

A UC Berkeley law professor is under fire for his former role as a legal adviser to the Bush administration in its war against terrorism, with critics saying he served as the intellectual author of policies that led to the mistreatment of Iraqi detainees by U.S. soldiers.

As a Justice Department aide, John Yoo wrote a legal brief in January 2002 arguing that fighters captured by U.S. troops in Afghanistan are not covered by the Geneva conventions -- the treaties that embody the laws of war.


John Yoo. UC Berkeley photo via Associated Press
Yoo's memo led to the controversial decision by President Bush that al Qaeda and Taliban prisoners being held at the U.S. Naval Base at Guantanamo Bay, Cuba, do not qualify as prisoners of war and have no right to lawyers or a trial. The result, human rights activists say, has been a legal twilight zone in which abuses against prisoners in U.S. custody abroad have occurred.

The controversy pits a rising star at Boalt Hall School of Law against liberal sentiment on the Berkeley campus. Ever since Yoo's memo was disclosed by Newsweek magazine last month, students and graduates have rallied and petitioned. At the law school commencement ceremony on May 22, about one- quarter of the graduates wore black armbands to protest Yoo's role and called on him to resign.

"I'm a conservative professor, so I'm used to people objecting to my views," Yoo said in an interview with The Chronicle.

But the dispute also embodies issues central to the debate over the Iraq prison abuses: Was the mistreatment of the Iraqi captives a result of the Bush administration's policies toward the Iraq conflict, or was it a series of aberrations committed by individuals at the bottom of the chain of command?

As a deputy assistant attorney general at the Justice Department, Yoo was one of the administration's chief legal experts on the methods that could be used in the campaign against terrorism. After resigning in June 2003, he returned to his position as a tenured professor at Boalt.

At issue is Yoo's Jan. 9, 2002, memo to William Haynes, the Pentagon's general counsel. It concluded that because neither al Qaeda nor the Taliban militia that controlled Afghanistan could be considered functioning states, and because the war on terror was not like regular wars between states, the al Qaeda and Taliban prisoners at Guantanamo Bay are protected by "neither the War Crimes Act nor the Geneva Conventions." The memo also concluded that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because "customary international law, whatever its source and content, does not bind the president or restrict the actions of the U.S. military, because it does not constitute federal law." It also argued that the War Crimes Act, passed by Congress, did not apply.

Bush's decision one month later to suspend the conventions at Guantanamo was intended to give interrogators greater freedom to use tough methods with suspects. U.S. officials argued that granting normal prisoner-of-war status would allow detainees to retain information on possible future terrorist attacks against the United States.

"(Yoo's) memos were clearly a major contributor to the environment that led to the abuses at Abu Ghraib," said Kenneth Roth, executive director of Human Rights Watch. "He not only excused the violation of rights of prisoners at Guantanamo, which was wrong in itself, but he set in motion the legal loopholes that led to coercion on a broad scale."

Roth's organization has long criticized the Bush administration's incarceration policies at Guantanamo Bay, Afghanistan and Iraq, and has issued many reports of prison abuses -- allegations that were hotly denied by administration officials and received little public attention until the Abu Ghraib scandal exploded in early April.

In the interview with The Chronicle, Yoo declined specific comment on his memo, and also declined to discuss his work at the Justice Department. His work there encompassed the immediate Iraq postwar period, a time when the Afghanistan dragnet slipped to the back burner as the administration became preoccupied with the thousands of prisoners it was holding in Iraq.

But Yoo said Bush's move to exempt the Guantanamo Bay prisoners from the Geneva conventions applied to those prisoners only and had no role in any subsequent abuses in Iraq.

"To say the decision on al Qaeda helped create a culture in which abuses were accepted, that it set the tone for Abu Ghraib -- how can you prove or disprove that?" Yoo asked. "That's just an accusation, that's like saying, 'Because we have the death penalty or abortion in the United States, we have a culture of death.' That doesn't make sense. It is unproven and unprovable.''

Yoo condemned the abuses in Abu Ghraib and said federal criminal law and an international treaty against torture prohibit the kind of mistreatment that is reported to have taken place at Abu Ghraib and elsewhere. "I don't know whether these accusations by human rights groups are true (about Guantanamo Bay policies producing Abu Ghraib abuses), but there are hearings going on along with a military investigation, and we should wait to see what the truth is," he said.

Many experts agree that it is difficult to determine exactly what constitutes torture -- for which there is no commonly accepted definition, Yoo noted.

"Some of those are things that happen in an American police station," he said. "Sleep deprivation, standing a long time, for those things it depends on the context, it depends how you do them. If you only let someone sleep six hours day that's not a violation, but if you don't let someone sleep for days that probably would be a violation."

But critics insist that Yoo appeared to ignore the likelihood that his recommendation would result in widespread abuses. "The open question is whether Yoo wrote this memo knowing this would facilitate the mistreatment of prisoners, and if he did, he could be accused of a crime," Roth said. "I don't know if it reflects shocking incompetence or criminal intent."

Roth, a former federal prosecutor in New York and for the Iran-Contra investigation in the 1980s, said the Geneva conventions and U.S. federal law give interrogators sufficient latitude to ferret out information from prisoners. "You can lie to people, you can trick them, you cut deals with them, you can yell at them. There are plenty of ways to get at the truth without torture."

The controversy has made Yoo, 36, a marked man on campus.

"Some people think of an attorney as a hired gun, with no responsibility otherwise," said Boalt graduate Michael Anderson, who circulated the petition calling on Yoo to resign only days after Anderson's graduation last month. "But that's immoral. Even if Yoo is right and terrorists aren't covered by the Geneva conventions, he induced the military to commit war crimes with his advice."

In a sign of the passions that surround the Iraq war, the petition has produced its own backlash. As of Sunday, scores of the petition's 316 online signers were hostile to the critics, signing themselves with names such as Osama bin Laden and Saddam Hussein. A counter petition had garnered 186 signatures.

Yoo is philosophical about the controversy. "It comes with the territory for me. The only thing different was asking me to resign my position, which I think was over the line. It was a shock to me."

© Copyright 2004 San Francisco Chronicle

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