Michael Rosten's John Yoo Report

Michael Rosten reports on John Yoo. Can anybody tell me how somebody who claims to be unable to use the standard tools of legal research was tenured at Berkeley's Boalt Hall? Isn't an ability to use Westlaw a core competence of a law professor?

Looking for Someone to Lie to Me: Yoo can't be serious: Professor John Yoo has received ample opportunities to defend himself in various media outlets. For a man whose job it has been to defend the indefensible, he sure is good at finding new and innovative ways to stuff the turkey. Here's a recent example quoted in the Washington Post:

Yoo thinks his critics should understand that he offered legal advice, while others made policy. "I think people don't understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were," he said. "There was no book at the time you could open and say, 'under American law, this is what torture means.'"

Um, sorry Professor Yoo. Either you didn't want to find out "under American law...what torture means," or you just didn't do your job and go looking for the book that says what torture was under American law hard enough. It's easy enough to find - just go to state.gov., and look for the 1999 US report to the Committee Against Torture on America's work to implement the Convention Against Torture. The report's first section starts out with reference to the fact that "Within the federal government, the Civil Rights Division of the Department of Justice is the primary institution responsible for enforcing federal civil rights statutes... Examples of recent activity relevant to the prohibition of torture and cruel, inhuman or degrading treatment under the Torture Convention include" 18 particular cases, all of which had to define whether or not acts used against detainees or prisoners within the United States were acts that in severity amounted to torture.

But that's only part one. Part two speaks more to how the US had worked specifically to implement Article 1 of the CAT, which explicity defines torture. A few examples of what actually constitutes torture are outlined:

The intentional infliction of "mental" pain and suffering is appropriately included in the definition of "torture" to reflect the increasing and deplorable use by States of various psychological forms of torture and ill-treatment such as mock executions, sensory deprivations, use of drugs, and confinement to mental hospitals.... in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.

The report goes on to note that "Perhaps the strongest and clearest protection against torture [in US law] is afforded by the Eighth Amendment to the U.S. Constitution, which prohibits 'cruel and unusual punishments.'" It then goes on to refer to no fewer than 16 federal cases in which the definition of "cruel and unusual punishment" was evaluated by American courts.

The DOJ memo that superseded the memo authored by Yoo, in which he could not find the book that defined torture according to American law, explained that there are also quite a few cases under the Torture Victims Protection Act which defined what was and was not torture. Why exactly did it take two more years for the Justice Department to complete the kind of trailblazing legal research into TVPA jurisprudence that any second-year law student with a Westlaw password could probably wrap up in a few weeks time?

Like victims of waterboarding, Yoo's suggestion that it was hard to figure out what is and is not torture just doesn't hold water. Any simple review of the key materials that established America's commitment to the Convention Against Torture would show that there are plenty of acts that do not amount to organ failure that constitute torture. The only reason you can't find reference to the 1999 CAT Report in the Yoo memo is that it would have been inconvenient. They were trying to build the case for committing torture and inhumane acts, and their memo sought to create a legal defense for those who might commit these acts. Boalt Hall really should ask how much longer it benefits from having a war criminal on its faculty.

Comments

[Bruce Moomaw]

While this is somewhat in the nature of an ad hominem attack, the Washington Post's biography of Yoo provides a POSSIBLE motive for his behavior: his parents emigrated from South Korea in 1953, which means there's a good chance that they were fans of the rightist dictatorship running the country at the time -- which was ruthless as hell. (Of course, it's also possible that they emigrated precisely because it was too ruthless for them; but the fact that John also seems to have been an ultra-rightist from his earliest years is suggestive.)

["Q" the Enchanter]

"There was no book..."

That may be the funniest thing I've read all year. (Maybe Yoo will write a hornbook on the law of torture.)

[Lisa]

Then there's "Yoo thinks his critics should understand that he offered legal advice, while others made policy..."

When you work as legal counsel at the U.S. Department of Justice and you write memos giving legal opinions on matters of policy, YOU ARE MAKING POLICY.

If you want to write about U.S. law without any promise that your words will be taken seriously by our government, stay in academia.

[kharris]

This is a very odd ethical claim. I don't mean ethics as in "legal ethics", about which I know very little. I mean general ethics. If a doctor's boss comes to the doctor and asks how to poison a rival, is the doctor off the ethical hook if he just says, "well, you could put arsenic in the soup" but never hands the boss any arsenic? How about if the doctor knows the boss thinks poisoning rivals is a really good idea?

This is a "just a cog in the mechanism" argument, of a particularly ugly sort. This cog justified the mechanism.

[Ugh]

Having had Yoo for two classes at Boalt, one on basic con law (separation of powers, etc.) and one on civil procedure (advanced civ. pro., essentially) he never once, in either class, gave any hint of his "POTUS is King" view of the world.

[Ugh]

Isn't an ability to use Westlaw a core competence of a law professor?

No. Nor is it a core competence of Partners at major law firms. The people most skilled at using Westlaw (and Lexis) are generally those fresh out of law school and low level associates.

[piotr]

I think that a better analogy to advise that Yoo furnished would be telling a client that when police will come to arrest him, he can shoot them down and he should have a good case of self-defence, as "there was no definite explanation what self-defence means under American law".

By the way, how a repugnant fascist toad and toady becomes a tenured professor? Does it mean that plenty of other professors in that law school think that such positions are within bounds of civilized discourse?

By the way, when Yoo worked for the goverment, of course he could ask a young underling to make Westlaw and Lexis searches for him.

[ken melvin]

I think that it is very possible that high muckity mucks in the Federalists cheered on then used Yoo and Janice Rogers Brown as sacrificial lambs, just as bush/cheney used Powell.

[liberal]

kharris wrote, "This is a 'just a cog in the mechanism' argument, of a particularly ugly sort. This cog justified the mechanism."

Which reminds me of a question I've had lately: is someone in Yoo's position (viz, "giving legal advice" but not actually crafting orders) liable for war crimes?

[wcw]

I shall assume that Boalt tenures only bright people who do good work. That Yoo is a toady to power is depressing, but I support the school in tenuring him if he is in fact bright and does do good work. Real freedom of speech and thought requires that you swallow your disgust and work with fascists. They have rights just like we all have, even if in their heart of hearts they want to take ours away.

The true ugliness is in the elected and appointed officials who swore to uphold the Constitution and its manifold guarantees against authority, and hired a toady like Yoo to do the opposite.

That Yoo did as good a job for them as we presume he does for Boalt is merely a testament to his competence in enabling authority.

That the elected and appointed officials who hired him are still in office instead of figuratively tarred and feathered is the part of this history I find truly nauseating. Where is the freaking outrage?

[Howard]

Ugh, was he a good teacher?

[Bre]

The UC Regents should determine if it's worth it to keep a professor who's actively de-valuing their law degrees.

As an employer, I would certainly think twice about hiring someone who had Yoo for a separation of powers class. (No offense to you personally, Ugh.)

[Joe S.]

Brad,
You make the common mistake of thinking of law as an academic discipline, and law professors as scholars. Law professors can be quite bright, but most of them are not scholars, as PhDs would understand the term. (By PhDs, I include all disciplines: I share the same view as English PhDs, and I was a chemist when in law school.) Law profs are closer, I think, to theologians: damn good at dressing up their priors in scholiastic drag, but not very good at any rational inquiry into these priors. Think of the lawnecon types you know, especially the unvarnished Chicago ones. There may be a few evidence-driven law profs, but seldom seem them in Constitutional law: Yoos' supposed field of expertise.
So Yoo, I'm afraid, is very typical of the breed. As a consequence, most legal employers have much more respect for law schools' admissions offices than law school training.

[jon livesey]

It's fun to give Yoo a good kicking, but maybe what we should be asking instead is whether the crooked businessman deliberately seeks out a doctor who will advise him on how to poison rivals without suppplying the poison, and whether administrations ever seek out legal advisors who have the reputation for not quite being able to figure out what torture is.

[Boalt Grad]

Prof. Yoo is worthy of study as a master of the non sequitur defense. When challenged, he talks and talks but studiously avoids any substantive response. His book is in large part a defense of his "torture" memos, but its index reveals no mention of "torture," "war crimes," or any such inconveniences. At a recent debate in Berkeley with Prof. Peter Irons and Prof. Gordon Livingston, and again on NPR this week, Prof. Yoo blithely ignored direct challenges to his role in legitimizing torture, instead bloviating on abstract principles and dubious precedents. Neither the word "torture" nor any of its cognates ever passed his lips. Lawyers do this when their client's behavior has been indefensible: the murderer's advocate never talks to the jury about "the murder." He mentions it, if at all, as little as possible, and then only as "the incident."

[Ugh]

Howard asks: Ugh, was he a good teacher?

Well, hard to say. I wouldn't put him in the top couple profs I had in law school, but wouldn't but him in the bottom couple either. Outside of class, however, he was phenomenal. He offered, without any prompting, to take students out to lunch on his own dime; would suggest topics for, and advise students on, their comments/case notes for the law review even when I was about 100% sure he did not agree with the position taken; personally got a (deserving) student a supreme court clerkship; and was eminently approachable, likable, and funny.

Bre says: As an employer, I would certainly think twice about hiring someone who had Yoo for a separation of powers class. (No offense to you personally, Ugh.)

None taken, mostly because the vast majority of legal employers only care about what school you went to and what grades you earned, rather than who taught what class (and especially con law, which, if you're going to practice at a firm, is generally wholly irrelevant to most of your practice). In any event, as I said, he didn't give any hint as to "POTUS as King" views in class.

[liberal]

wcw wrote, "That Yoo is a toady to power is depressing, but I support the school in tenuring him if he is in fact bright and does do good work."

He might be bright. He might have done "good work" in the literal sense of "good, but not to the exclusion of bad": It's clear he's done abysmal work.

[Tim B.]

Yoo's executive privilege arguments, while foul and fascistic, aren't the main problem it seems to me. The logic of an omnipotent Executive is not uncommon on the Right, has been proferred before, and will continue to be survive in the future. All Presidents will assert authority and manipulate until hobbled. Hoping the Executive will police itself is a nice fantasy, but that's not how power works in real life.

The real problem is that It's the job of Congress, the Courts and the Media to investigate and regulate the Executive. And they've not been doing their duty, because they are corrupt or cowed.

The system fails utterly if Congress, the Courts and the Media won't do their jobs. No one else has the power to enforce virtue or inspire fear in the Executive.

The elevation of Yoo's convenient pathological legal flummery is just a predictable symptom of the deeper rot.

[CapitalistImperialistPig]

liberal - I think you are missing the point, which has nothing to do with whether Yoo's opinions are wrong or even repugnant, but everything to do with whether the legal work he did as a government employee was criminal. The oath of office he took was to support and defend the constitution and the laws, and if he willfully or recklessly disregarded those laws to enable a crime he failed to carry out that duty and probably did commit a crime.

Whether he did or not, the offence should be tried in the courts, not the faculty senate (or other body) at UC.

[masaccio]

It is inconceivable that Yoo did not know the kinds of things discussed in the post. He knew, or he is incompetent. The first step in any memo is research. How hard is it to type the word "torture" into a search engine.

Yoo may be a delightful human being, but he lacks and ethical and moral compass. He is a perfect example of the banality of evil.

[Gene O'Grady]

Joe S --

If you are under the impression that theologians, like law profs (whom I wouldn't know about), do little other than dress up their predecessors in Scholastic (?) drag, I doubt you've read much 20th century theology. That would be singularly unfair to Congar or de Lubac or (heaven forbid) Joseph Ratzinger, let alone people like Barth or Rowan Williams from outside my own tradition.

Theologians do tend to speak in code, but if you're actually interested there's a variety of secondary books available.

I might add the point made by Hans Kueng and others in the last couple of years that where John Paul II went astray was that, although fairly well trained in academic philosophy, he was fundamentally ignorant of the development of 20th century theology.

[BroD]

Thanks for this bit of CAT blogging which pretty well obliterates one of Yoo's excuses.

Liberal asks, "Where is the freaking outrage?"

Here.

[Arun Khanna]

"While this is somewhat in the nature of an ad hominem attack, the Washington Post's biography of Yoo provides a POSSIBLE motive for his behavior: his parents emigrated from South Korea in 1953, which means there's a good chance that they were fans of the rightist dictatorship running the country at the time -- which was ruthless as hell." In 1953, U.S. led U.N. forces were fighting in Korea. It seems much more likely that Professor Yoo's parents emigrated simply as war refugees or were seeking better opoortunities in America.
Frankly, I don't think Professor Yoo's parents have any direct bearing on the subject of his memo's under discussion on this blog.

[masaccio]

As a matter of mild interest, I put the word "torture" into westlaw at my office this morning, and was rewarded with several law journal articles and several ALR and AmJur cites. I only subscribe to my state law and the bankruptcy section. Anyone with a decent selection of westlaw databases could have done much better.

It is not possible that Yoo did any intellectually honest or professionally competent research on the law when he wrote the memos.

[James Wimberley]

Brad's charge that his colleague Professor Yoo is a war criminal is a serious one and deserves to be taken seriously. There is at least one major precedent. In 1947 the US occupying authority in Germany tried 16 high-ranking Nazi judges and officials of the Reich Justice Ministry for active complicity in war crimes. Ten were convicted. This site has more on the "Judges' Trial": http://www.law.umkc.edu/faculty/projects/ftrial
s/nuremberg/Alstoetter.htm
Has Yoo the guts to sue Brad for libel?

[poster]

Well, it wouldn't be a very successful libel case since Brad didn't write that, Michael Roston did.

[J Thomas]

That calls up a funny fantasy. Yoo sues Roston for libel. Roston asks the judges of the World Court for their opinions, and they provide them. Then the US court upholds the libel charge, and Yoo sues the World Court for libel....