Conservative Berkeley Professor...

[Boris]

asked to resign.

Hopefully this effort is just couple of crazy kids. It would be a shame if this guy actually lost his job. I'm sure the Rush Limbaugh crowd will have a field day with the story.

web page

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.

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."

[swimfan]

I agree. This sort of feels like kill the messenger; he analyzed the law available, he did not implement or advocate policy derived from his analysis. I hope he does not lose his job over this as well.

Berkeley always reminds me of the movie PCU for whatever reason...

[cardcounter0]

I don't see the problem. The guy helped look for legal loopholes to justify the Administration ignoring the Geneva Conventions.

At some point, don't you say "Wait a minute, ignoring the Geneva Conventions is just wrong. It is there to stop crimes against Humanity."

I'm sure after WWII, you could have found somebody in Germany saying "Hey, I just built the gas chambers like I was told too", or "I just help spread the propaganda, I didn't write it" or "I just helped with legal justifications for Germany to invade Poland"

Of course, back in more rational freedom-loving times, people with those defenses didn't just lose their jobs -- We hung a lot of them.

SO should a Law School have a Teacher that doesn't have enough moral guidance to know that he shouldn't be looking for ways around the Geneva Convention in the first place?

[Zeno]

[ QUOTE ]
"(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. "

[/ QUOTE ]


This is nonsense. I wager 7 million to one that:

1. The individuals that commint the alledged abuse at Abu Ghraib had no knowledge of this memo.

2. Their immediate supervisors or offices did not know of this memo and on up the chain of command to very high ranking officers etc.

3. The environment that contributed to the abuse at Abu Ghraib is present in almost all prisons in time and place.


[ QUOTE ]
"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."


[/ QUOTE ]


Perhaps Yoo should sue Mr. Roth for libel. It would be a fitting response.


Academic freedom is always under attack from some quarter.


-Zeno

[adios]

[ QUOTE ]
I don't see the problem. The guy helped look for legal loopholes to justify the Administration ignoring the Geneva Conventions.

[/ QUOTE ]

He gave a legal opinion which he was qualified to do. An expression of free speech. It wasn't looking for loopholes. If he exposed "loopholes" then exposing them can be construed as helpful in closing them.

[ QUOTE ]
At some point, don't you say "Wait a minute, ignoring the Geneva Conventions is just wrong. It is there to stop crimes against Humanity."

[/ QUOTE ]

Huh? Why shouldn't he express an opinion on what U.S. law entails?

[ QUOTE ]
I'm sure after WWII, you could have found somebody in Germany saying "Hey, I just built the gas chambers like I was told too", or "I just help spread the propaganda, I didn't write it" or "I just helped with legal justifications for Germany to invade Poland"

[/ QUOTE ]

Not remotely analagous to an opinion on what U.S. law entails.

[ QUOTE ]
Of course, back in more rational freedom-loving times, people with those defenses didn't just lose their jobs -- We hung a lot of them.

[/ QUOTE ]

An absurd position on your part in comparing the legal opinion to Nazis.

[ QUOTE ]
SO should a Law School have a Teacher that doesn't have enough moral guidance to know that he shouldn't be looking for ways around the Geneva Convention in the first place?

[/ QUOTE ]

Why shouldn't he express an opinion on what U.S. law entails?

[adios]

Terrorists Have No Geneva Rights

By JOHN YOO
May 26, 2004; Page A16

In light of the Abu Ghraib prison scandal, critics are arguing that abuses of Iraqi prisoners are being produced by a climate of disregard for the laws of war. Human rights advocates, for example, claim that the mistreatment of Iraqi prisoners is of a piece with President Bush's 2002 decision to deny al Qaeda and Taliban fighters the legal status of POWs under the Geneva Conventions. Critics, no doubt, will soon demand that reforms include an extension of Geneva standards to interrogations at Guantanamo Bay.

The effort to blur the lines between Guantanamo and Abu Ghraib reflects a deep misunderstanding about the different legal regimes that apply to Iraq and the war against al Qaeda. It ignores the unique demands of the war on terrorism and the advantages that a facility such as Guantanamo can provide. It urges policy makers and the Supreme Court to make the mistake of curing what could prove to be an isolated problem by disarming the government of its principal weapon to stop future terrorist attacks. Punishing abuse in Iraq should not return the U.S. to Sept. 10, 2001 in the way it fights al Qaeda, while Osama bin Laden and his top lieutenants remain at large and continue to plan attacks.

It is important to recognize the differences between the war in Iraq and the war on terrorism. The treatment of those detained at Abu Ghraib is governed by the Geneva Conventions, which have been signed by both the U.S. and Iraq. President Bush and his commanders announced early in the conflict that the Conventions applied. Article 17 of the Third Geneva Convention, which applies to prisoners of war clearly state that: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." This provision would prohibit some interrogation methods that could be used in American police stations.

One thing should remain clear. Physical abuse violates the Conventions. The armed forces have long operated a system designed to investigate violations of the laws of war, and ultimately to try and punish the offenders. And it is important to let the military justice system run its course. Article 5 of the Fourth Geneva Convention, which governs the treatment of civilians in occupied territories, states that if a civilian "is definitely suspected of or engaged in activities hostile to the security of the States, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in favor of such individual person, be prejudicial to the security of such State." To be sure, Art. 31 of the Fourth Convention prohibits any "physical or moral coercion" of civilians "to obtain information from them," and there is a clear prohibition of torture, physical abuse, and denial of medical care, food, and shelter. Nonetheless, Art. 5 makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks.

A response to criminal action by individual soldiers should begin with the military justice system, rather than efforts to impose a one-size-fits-all policy to cover both Iraqi saboteurs and al Qaeda operatives. That is because the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them. Al Qaeda is not a nation-state, and its members -- as they demonstrated so horrifically on Sept. 11, 2001 -- violate the very core principle of the laws of war by targeting innocent civilians for destruction. While Taliban fighters had an initial claim to protection under the Conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war.

As a result, interrogations of detainees captured in the war on terrorism are not regulated under Geneva. This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law. Nonetheless, Congress's definition of torture in those laws -- the infliction of severe mental or physical pain -- leaves room for interrogation methods that go beyond polite conversation. Under the Geneva Convention, for example, a POW is required only to provide name, rank, and serial number and cannot receive any benefits for cooperating.

The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda. It has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda's intentions to kill even innocent civilian prisoners. Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.

It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists. Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use WMDs, is by acquiring information that allows for pre-emptive action. Once the attacks occur, as we learned on Sept. 11, it is too late. It makes little sense to deprive ourselves of an important, and legal, means to detect and prevent terrorist attacks while we are still in the middle of a fight to the death with al Qaeda. Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that the U.S. faces a stateless enemy never contemplated by the Conventions.

This means that the U.S. can pursue different interrogation policies in each location. In fact, Abu Ghraib highlights the benefits of Guantanamo. We can guess that the unacceptable conduct of the soldiers at Abu Ghraib resulted in part from the dangerous state of affairs on the ground in a theater of war. American soldiers had to guard prisoners on the inside while receiving mortar and weapons fire from the outside. By contrast, Guantanamo is distant from any battlefield, making it far more secure. The naval station's location means the military can base more personnel there and devote more resources to training and supervision.

A decision by the Supreme Court to subject Guantanamo to judicial review would eliminate these advantages. The Justices are currently considering a case, argued last month, which seeks to extend the writ of habeas corpus to al Qaeda and Taliban detainees at Guantanamo. If the Court were to extend its reach to the base, judges could begin managing conditions of confinement, interrogation methods, and the use of information. Not only would this call on the courts to make judgments and develop policies for which they have no expertise, but the government will be encouraged to keep its detention facilities in the theater of conflict. Judicial over-confidence in intruding into war decisions could produce more Abu Ghraibs in dangerous combat zones, and remove our most effective means of preventing future terrorist attacks.

Mr. Yoo, a law professor at Berkeley, is a scholar at the American Enterprise Institute and a former Bush Justice Department official.

[sfer]

As a Berkeley Alum, I feel compelled to point out that the two largest student groups on campus, in order, at the time of my graduation (1997), were:

1. The Young Republicans
2. The Gay/Lesbian Student Union

It's an odd place but the student body is by no means monolithic.

[andyfox]

Pretty scare stuff, IMO. But he should be entitled to state his opinions without losing his job because of them.

Yoo claims certain people have no Geneva rights because of the "the unique demands of the war on terrorism." And why? Because they don't respect our Geneva rights.

What good would it be to win the war on terrorism if we act like the terrorists?

[swimfan]

Please don't take offense, have you ever seen the movie PCU? It was a fairly bad comedy/satire about a fictional university with many different political activist groups under one roof trying to make things 'PC'. The two groups you mention sorta make my statement more apt (in the movie, the two most visible groups were the young republican and lesbian groups)...

[adios]

The point YOO is making is that the terrorists have never signed on to the Geneva convention but I agree with your point that it doesn't excuse inhumane treatment of people.