After former White House lawyer John Yoo's memos authorizing torture were finally made publicly, the American Freedom Campaign launched a petition drive urging his boss, U.C. Berkeley law school dean Christopher Edley Jr. (left), to fire him.
[T]he American Freedom Campaign is 100 percent supportive of the First Amendment and respects the academic freedom that tenure is designed to protect and encourage. It cannot be stated strongly enough that we are not opposed to "Professor" Yoo stating an opinion; we are opposed to "government lawyer" John Yoo violating his obligation to defend the Constitution and serve the American people. He was asked to provide a legal justification for torture and ignored every possible ethical -- and perhaps legal -- obligation in existence to give his superiors exactly what they wanted.
Today Dean Edley replied:
I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct - that is, some breach of the professional ethics applicable to a government attorney - material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?
Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.
Of course there is no statute that specifically prohibits government lawyers from writing memos justifying torture and other war crimes - who would imagine the need to write one?
There's no doubt it would be a crime for a government lawyer to administer torture directly.
Yoo's memos authorized other government officials to administer torture. At a minimum, that makes him an accessory to their crimes.
And under the Nuremberg case of United States v. Josef Altstoetter et al, using the legal system to "legalize" war crimes is itself a war crime:
If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan.
If Yoo were charged in a court of law with these crimes, would Edley defend keeping him on the Berkeley faculty? Of course not.
So the matter hinges on the fact that Yoo remains unindicted for his crimes, for the obvious reason that Attorney General Michael Mukasey, like Yoo and Bush, believes waterboarding is not torture. They are all wrong, but they are in power.
If John Yoo is a war criminal under Altstoetter, he belongs in prison - not on a law school faculty.
Write Dean Edley, politely of course: edley@law.berkeley.edu
. . .
I have to ask myself: would appointment of a torture apologist to a position at the Justice Department indicate any serious determination to close Guantanamo?
