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John Yoo, Too Extremist to Be Guilty

A prosecutor in the Obama Justice Department lets UC Berkeley's infamous torture professor off the hook.

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In a long-awaited report released late last week, a career prosecutor in the US Department of Justice said UC Berkeley law professor John Yoo should not be held liable for authorizing torture and warrantless wiretaps while working for the Bush administration. The prosecutor overruled the conclusions of an internal Justice Department probe that found Yoo and his boss in the Bush administration, Jay Bybee, had engaged in "professional misconduct" and should face disbarment proceedings. The decision means that UC Berkeley's infamous torture professor likely will keep his law license and his tenure.

In a 69-page letter explaining his decision, Associate Deputy Attorney General David Margolis essentially argued that Yoo's extreme views about unlimited presidential power in wartime had "clouded" his judgment, and thus did not make him guilty of "professional misconduct." That is, Yoo should not be held accountable because he honestly believed that the president could ignore domestic and international laws. The reason, Margolis asserted, is that Yoo's extreme beliefs meant that he couldn't have known that his legal reasoning was wrong.

Margolis also concluded that the original investigation, conducted by the Justice Department's Office of Professional Responsibility, had held Yoo to a standard that was too high. That office found that Yoo failed "to exercise independent legal judgment and to render thorough, objective, and candid legal advice" as required in his job with the Justice Department. In other words, Yoo wasn't just a lawyer advising a client; he also was required to tell that client what he didn't want to hear. But Margolis, who has the power to override the office's conclusions, argued that Yoo should be held to the lesser standard that applies to all lawyers. In short, Margolis argued that lawyers give bad advice all the time and aren't disbarred for it.

But legal scholars are already pointing out the holes in Margolis' reasoning. Brian Tamanaha, a constitutional expert at St. John's University in New York, argued that Margolis tried to have it both ways. Margolis, for example, notes that Yoo's position as a UC Berkeley professor provides proof that he's a competent lawyer. But then he argues that Yoo's arguments are so extreme that he couldn't have known that the advice he gave to the Bush White House was incompetent.

But Tamanaha, like the internal Justice Department probe, contends the opposite. That is, professor Yoo must have known that his legal advice authorizing torture, which was later repudiated by the very same Bush Justice Department, was bogus, or at the very least, he must have known he was acting recklessly. It's also important to note that Bush-era officials, including former Vice President Dick Cheney, have repeatedly pointed to Yoo's legal conclusions to justify the torturing of prisoners.

Margolis' decision may allow the professor to remain at Berkeley. By contrast, a finding of "professional misconduct," a legal term of art, might have been sufficient for the campus to terminate Yoo. That's because one of the few ways a tenured professor can be fired under university regulations is if he committed "professional misconduct."

Schwarzenegger: Republicans Are Hypocrites

Finally, a prominent Republican politician had the guts to call out his colleagues for bashing the Obama stimulus package in Washington while bragging that the $862 billion program has created jobs in their own states. On Sunday, Governor Arnold Schwarzenegger told ABC News: "I find it interesting that you have a lot of the Republicans running around and pushing back on the stimulus money and saying this doesn't create any new jobs, and then they go out and they do the photo ops and they are posing with the big check and they say, isn't this great? It doesn't match up."

MSNBC anchor Rachel Maddow, along with Democrats, liberal bloggers, and the White House have been pointing out the Republican hypocrisy for some time now. And Schwarzenegger's comments may mean that the GOP's duplicity over the stimulus will finally gain some traction in the mainstream media. Schwarzenegger also called out Republicans for being the "party of no," because of their knee-jerk opposition to the president, even when he pushes proposals that they agree with. Schwarzenegger also agreed with Democrats who say that Republicans are purposely opposing the president because they think it will lead to victories in the November election.

Three-Dot Roundup

Agents with the FBI, the IRS, and the Secret Service raided the Concord offices of the Seeno Family, one of the East Bay's most prominent developers and influential powerbrokers, according to the Contra Costa Times. ... US Senator Dianne Feinstein's controversial proposal to divert huge amounts of water to California agribusiness could destroy already collapsing fish populations in the Sacramento-San Joaquin River Delta or result in a spike in water rates for urban and suburban residents. ... Feinstein also announced that she will not run for governor against her good friend Jerry Brown. ... Cannabis Planet, a new TV show about marijuana, debuted in the Bay Area last week on KOFY. ... But state politicians announced that the state's budget crisis means they will not finance any more medical pot studies, even though the latest one showed that cannabis could help relieve pain for millions of Americans. ... AC Transit revealed that it will still go ahead with across-the-board service cuts despite receiving a surprise $6.7 million in federal stimulus funds. ... And PG&E has already poured $6.5 million into a June ballot measure that would make it much tougher for cities to buy renewable energy. The utility is worried it will lose profits if municipalities join the public power market.

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