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On May 22, more than a quarter of the graduating class of Boalt Hall law students protested actions taken by Boalt law professor John Yoo during his tenure as deputy assistant attorney general for the Bush administration. In January, 2002, Professor Yoo authored a 42-page memo for the Department of Justice advising that the U.S. is not constrained by the Geneva Conventions in its treatment of Taliban and al Qaeda prisoners captured in Afghanistan. The State Department vigorously opposed this position on several grounds, arguing that it could do great damage to our international standing and the legitimacy of our foreign policy. Subsequent events in both Iraq and Afghanistan and have borne out these concerns. 

The day before graduation, we authored a petition asking Professor Yoo to repudiate his official position, or else to resign from the Boalt faculty. (The petition is available online at www.PetitionOnline.com/bh2004/petition.html. As of now, more than 250 students and alumni have signed on.) In subsequent media articles on the petition, Professor Yoo and others opposed our efforts on several grounds. While he refused to comment on the memo, Professor Yoo characterized the petition as an “unfortunate attack on academic freedom,” and asserted that the link between his memo and prisoner abuses in Iraq was “speculative.” He also stood by his original position that the Geneva Conventions do not apply to prisoners captured in Afghanistan. 

Professor Yoo’s response is misplaced. First, our petition is not an attack on academic freedom. It is explicitly worded as a response to official government actions taken by Professor Yoo in his capacity as deputy assistant attorney general. Professor Yoo has been espousing his viewpoints as an academic for years, yet we never before called for his resignation. We mounted this petition only in response to recent media revelations regarding his official role.  

Academic freedom protects viewpoints; it does not amount to immunity for immoral or illegal actions. If a professor commits a crime or behaves in a morally reprehensible way, the community has the right to demand accountability. If, as we believe, Professor Yoo’s actions amount to aiding and abetting war crimes, that absolutely demands accountability. 

Second, one need not “speculate” about whether the abuse of Iraqi prisoners was a result of Professor Yoo’s position. There is much evidence that similar abuses have occurred to prisoners captured by the United States in Afghanistan as well. The New York Times recently reported on investigations into a substantial number of suspicious deaths occurring to Afghani prisoners held in U.S. custody. According to Professor Yoo’s position, if these investigations determine that U.S. nationals or military personnel tortured or murdered prisoners captured in Afghanistan, these persons could not be prosecuted under the War Crimes Act. 

We encourage readers to read Professor Yoo’s memo (www.msnbc.msn.com/id/5032094/site/newsweek/). The most telling aspect of the memo is that it analyzes the applicability of the Geneva Conventions through the lens of the War Crimes Act (the federal law that makes U.S. nationals and military personnel criminally liable for grave breaches of the Geneva Conventions). The question of whether torturing or killing prisoners captured in Afghanistan would violate the Geneva Conventions is a secondary consideration in Professor Yoo’s memo. The primary question is whether U.S. nationals and military personnel could actually be prosecuted for such behavior—behavior that would undoubtedly constitute war crimes if inflicted on “conventional” prisoners of war. 

Finally, Professor Yoo’s interpretation of the Geneva Conventions rests on deeply flawed assumptions. Professor Yoo adopts an overly narrow, hypertechnical reading of the treaty that exploits loopholes and magnifies ambiguity to reach the desired conclusion. But he ignores the fact that, in reality, many prisoners have nothing whatsoever to do with the Taliban and al Qaeda. Indeed, the United States has released a large number of prisoners from Guantanamo, presumably after failing to find any evidence of their participation in these groups. We need not stretch our imaginations in wondering just how brutally these persons must have been interrogated before their captors realized they were innocent. 

In the protected ivory tower of academia, Professor Yoo has every right to formulate his legal opinions with disregard for such realities. But in the real world, legal positions have real world consequences, as we are now discovering in the most unfortunate way. Those responsible for these consequences must be held accountable. 

Michael W. Anderson, MA, PhD, JD, is a member of Boalt Hall’s graduating class of 2004. 

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