When this newspaper printed a cover story last spring saying UC Berkeley should fire Boalt law professor John Yoo and that he should be prosecuted for war crimes, the chances of either of those things actually happening may have seemed farfetched. After all, university officials had claimed that Yoo's work for the Bush administration — authorizing torture and warrantless wiretapping — was protected by academic freedom. Moreover, neither the Obama nor the Clinton campaigns expressed an interest at the time in investigating the outgoing administration. But several recent developments have started to shift opinions about whether Bush and company should receive a free pass. In fact, at least one prominent legal scholar believes that if there is to be a war crimes inquiry, one of the most likely targets will be a tenured professor who lives in the Berkeley hills.
"I think it's moved from possible to very likely," said Scott Horton, a lecturer at Columbia University law school and writer for Harper's, who has both studied and reported extensively on the Bush administration's record of torturing prisoners and monitoring Americans' phone calls without a warrant. "And of all the people involved, the most vulnerable are the lawyers, including John Yoo." Horton pointed to the Nuremberg trials after World War II as a precedent. In the late 1940s, several high-ranking Nazi lawyers were prosecuted, convicted, and sent to prison for their roles in facilitating war crimes, including torturing prisoners.
But why would Yoo be a more likely target than George W. Bush, Dick Cheney, or Donald Rumsfeld? It's clear now that they were the ones who ordered prisoners to be tortured at Guantanamo Bay prison and elsewhere. Or what about the CIA and military interrogators who waterboarded prisoners or deprived them of sleep and exposed them to cold for prolonged periods? Aren't they more responsible than Yoo, whose work consisted of writing legal opinions from the comfort of his Department of Justice office in Washington, DC?
The answer to those questions is "yes." Bush, Cheney, Rumsfeld, and the actual torturers were more responsible than Yoo. But because of vagaries in US law, they appear to be a tougher target than the University of California law professor, at least for domestic prosecutions. That may be unfortunate, but it's not as if Yoo's hands are clean. Bush and company could not have ordered prisoners to be tortured, nor could CIA agents and military interrogators have carried out those orders, had it not been for Yoo. It was his two legal opinions, now known as the "Torture Memos," that authorized cruel and harsh interrogations that had previously been defined as torture, and thus illegal under US and international law.
So how did the conventional wisdom start to shift on war crimes investigations? Horton and others, including Glenn Greenwald, a legal scholar and blogger for Salon.com, have pointed to several recent events. First, there was the swearing in of Barack Obama. Last week, the new president signed executive orders outlawing torture that had been authorized by Yoo's legal opinions and ordering the closure of Guantanamo and CIA "black-site" prisons.
Obama also declared that the "rule of law" will be a "touchstone" of his administration. Although Obama has indicated he is not intent on launching war crimes investigations of Bush administration officials, he has not ruled them out. Nor has his pick for attorney general, Eric Holder. Moreover, Obama would be hard-pressed to claim to the world that America now once again abides by the "rule of law," while simultaneously turning a blind eye to top political leaders who flagrantly broke it.
At this point, any serious debate over whether the Bush administration engaged in war crimes appears to be over. In mid-January, Susan Crawford, a Bush administration official in charge of prosecuting Guantanamo prisoners, told Bob Woodward of the Washington Post that US interrogators had "torture(d)" at least one suspected Al Qaeda member by depriving him of sleep and exposing him to cold for prolonged periods. Moreover, there were the revelations last year that Bush and Cheney both personally authorized prisoners to be waterboarded. Waterboarding has been considered torture going back to the Spanish Inquisition. In fact, Holder pointed out during his confirmation hearing earlier this month that the US government prosecuted American soldiers who waterboarded prisoners during the Vietnam War. Holder also declared unequivocally that "waterboarding is torture."
The nation's appetite for war crimes investigations also appears to have grown. A Washington Post poll reported last week that a majority of Americans, by a margin of 50 to 47 percent, believe that the Obama administration should investigate whether the Bush administration's treatment of detainees was illegal. In addition, House Speaker Nancy Pelosi, Senator Carl Levin, and other prominent Democrats in recent weeks have indicated said that Congress plans to investigate the Bush administration on a variety of fronts during the coming months. Levin even has urged Holder to appoint a special prosecutor.
Last week, some Senate Republicans held up the Holder nomination over concerns that the Department of Justice would target CIA and military interrogators. But that seems unlikely. The reason is that those interrogators could point to Yoo's memos as justification for their actions. CIA agents once referred to one of the memos as the "Golden Shield" (see "The Torture Professor," May 14, 2008). In addition, the torturers were effectively immunized from prosecution when Congress approved the Military Commissions Act in 2006 (Obama voted against it).