War Crimes Start at the Top

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 carlos@nlgsf.org