In early 2008, the national spotlight focused on Berkeley as the city council proclaimed recruiters for the US Marines "unwelcome intruders." As antiwar liberals clashed with offended conservatives, the protests and counter-demonstrations splashed across the evening news. But all the attention was badly misdirected. Just a few blocks away, virtually unmolested by protesters or TV cameras, was John Yoo, a UC Berkeley law professor whose secret government work was more objectionable than anything Marine recruiters or Berkeley's city council could possibly have concocted.
Yoo, a tenured professor at Boalt Hall since 1999, is the author of the infamous "Torture Memos" — a set of repudiated legal opinions that led to prisoner abuses in US prisons at Abu Ghraib, Guantanamo Bay, and elsewhere. Yoo wrote the memos for the Bush administration's Department of Justice while on leave of absence from UC Berkeley from 2001 to 2003. A staunch conservative, he also is believed to have laid the legal foundation for the nation's warrantless wiretapping program.
Yoo is now back at Boalt quietly teaching constitutional law, mostly overlooked by both the Bay Area media and anti-Bush activists. But in legal circles, both liberal and conservative scholars have sharply criticized the torture memos while engaging in online debates about whether he should be charged with war crimes, fired from Berkeley, or simply left alone.
One of his critics is Jack Goldsmith, a fellow conservative and former close friend. Goldsmith, who is now a Harvard University Law School professor, succeeded Yoo in the Justice Department and ultimately rescinded the torture memos — a move he described as being unprecedented. In a book released last fall, Goldsmith said he had no choice but to repudiate Yoo's work because it was so "extreme" and "one-sided." He said the memos amounted to an "advance pardon" or "get-out-of-jail-free card" for any interrogator who tortured prisoners in violation of US and international laws.
The Bush administration made one of Yoo's torture memos public on March 31, prompting some critics to immediately dub it the "Abu Ghraib Memo." Among other things, the memo extended the harsh and humiliating techniques employed by the CIA to military interrogators in Iraq and Afghanistan. The revelation of the 81-page memo sparked an editorial in The New York Times that questioned Yoo's continued employment at Berkeley, and spurred a call by two human rights organizations for Yoo to be fired.
In response, Boalt's dean, Christopher Edley Jr., issued a statement saying that while he too was "troubled" by the torture memos, Yoo was protected by tenure rules and academic freedom. Edley essentially said that the forty-year-old law professor could not be fired unless he was convicted of war crimes.
There is a chance, although remote, that such a thing could happen. Following World War II, Nazi lawyers were tried and convicted of war crimes at Nuremberg for their roles in enabling Hitler to commit atrocities. However, because of a 2006 US law that provided retroactive immunity to government officials, Yoo may never face criminal charges in the United States. Nonetheless, he could be prosecuted in a foreign or international court.
But a closer look at the University of California's tenure regulations reveals that UC Berkeley need not wait for the intervention of foreigners. For starters, it's highly questionable whether Yoo's work for the Bush White House truly constituted an instance of academic freedom. And even if it did, there's still a case to be made that the former law clerk for Supreme Court Justice Clarence Thomas engaged in misconduct and violated his professional legal ethics. As a result, UC Berkeley can — and should — fire him.
John Choon Yoo was part of a wave of conservative ideologues who swept into the executive branch following the inauguration of George W. Bush in 2001. Yoo is a member of the ultra-right-wing Federalist Society and at the time was already known as one of the "New Sovereigntists," a group of conservative intellectuals deeply critical of the growing influence of international law on American jurisprudence. He also shared Vice President Dick Cheney's view of unlimited presidential power in wartime, and possessed special skills that proved invaluable to the White House. He's brilliant, supremely confident, and as a leading scholar from a prestigious — and liberal — university, he carried the appearance of bipartisan street cred.
After 9/11, Yoo played an integral role within the administration. He became a member of a small group of high-ranking lawyers who called themselves the "War Council." In his 2007 book, The Terror Presidency, Jack Goldsmith wrote that the group met often "to plot legal strategy in the war on terrorism." Goldsmith was Yoo's good friend and fellow new sovereigntist, who took over for him in the Justice Department. Although the War Council had an extremely influential membership, including then White House Counsel Alberto Gonzales and Cheney's lead attorney David Addington, none possessed Yoo's special position in the administration.