Public Comment

Dear Christopher Edley Jr., Dean of UC Berkeley Law School: 

If a mathematics professor would suddenly proclaim that one plus one equals three, the mathematics department would have some concerns about the ability of that professor to continue as a teacher of students. If a history professor were to teach his students that Columbus first landed in the Americas at Times Square, Manhattan, in 1992, the history department would likewise wonder about whether that professor should teach at UC. So why, when a law professor gets the law wrong and says that torture of prisoners is legal, should “academic freedom” protect his right to teach law? And is that still true when the law professor advises criminal activity that is then carried out? 

Professor John Yoo not only has taught, but has advised the present Bush administration that it is legally permissible to torture prisoners. In one exchange in 2002, he stated that there was no legal reason why the president could not crush a prisoner’s child’s testicles if the president deemed it necessary. That’s not something enshrined in the Constitution. The U.S. Constitution does not contain any provision which would allow a president to ignore the Constitution when the president finds its restrictions inconvenient. Our constitution isn’t a mere suggestion. Nor is the Constitution a document which invites the president to comply with the parts he likes and forget about the rest.  

Article Six of the Constitution provides that it is “the supreme Law of the Land.” Despite Professor Yoo’s memos, I haven’t found anything in the Constitution that says George W. Bush is the supremer law of the land. The Eighth Amendment to the Constitution—part of the Bill of Rights—provides that “cruel and unusual” punishments shall not be inflicted. The words in the Constitution which set forth that it is the supreme law and which prohibit cruel and unusual punishments are put in simple, declarative statements. The drafters of the Constitution didn’t use any weasel words there. The Supremacy Clause and the Eighth Amendment embody some of the fundamental principles upon which this nation was founded. Governments before the Bush administration may have governed badly, but until the Bush administration, no government has come close to contending that it could just ignore the U.S. Constitution whenever it felt like it. 

For this alarming position taken by the government, we can thank John Yoo. He is the person who told the Bush-Cheney administration that it was legal to ignore the Constitution of the United States and torture prisoners who have no recourse to contest either their imprisonment or their treatment. 

The drafters of the Constitution carefully put together a document which placed limits on executive power. They did this because they had lived under, declared independence, and fought for independence from an English sovereign who had abused his power in his treatment of the American colonies. The drafters did not want an American president to repeat these abuses. Thus the drafters of the Constitution placed strong barriers in the way of unchecked executive power. 

What UC Berkeley Professor Yoo has advised is simply and demonstrably wrong under the law. One would hope that a professor at a major law school would at least believe in the rule of the law. That should be a requirement to teach law—it’s basic to the discipline. But Professor Yoo believes in a government not subject to law, but to the whim of an executive, and worse, has advised the government to that it is free to ignore what the laws plainly say. 

Professor Yoo has advised the administration that despite the limitations of the constitution, laws, and treaties the United States has entered into, it is legal to inflict extreme pain on prisoners. Yoo knew that his advice would result in real prisoners being tortured. His memos were not theoretical constructions. Yoo wrote them as a high-level employee of the Justice Department in order to give permission for the administration to go out and torture prisoners. Apparently Yoo is a smart guy. He was not ignorant of the fact that real consequences would result from his actions. 

According to UC Law Professor Yoo, torture is really not torture unless it causes organ failure, impairment of bodily function or death. And, according to Yoo, even that isn’t torture if the person inflicting it says it was a mistake. In short, he told the administration that it could commit crimes against humanity and that they were not really crimes. Unlike the imaginary math and history professors I used in my examples above, Law Professor Yoo’s perversion and denial of the Constitution’s provisions—as well as his repudiation of U.S.-ratified treaties such as the Geneva Convention and the Convention Against Torture—has had ugly and horrendous consequences. 

For some reason, Dean Edley, you seem to believe that Professor Yoo’s responsibility for the criminal acts he authorized the government to commit is of a lesser culpability than the responsibility incurred by those who read his memos and ordered those criminal acts. Your point is that advising the government that it is legally permissible to torture actual prisoners it holds is in the same realm of academic disagreements among colleagues as are disputes about the commerce clause, quorum requirements of the Senate, or the taking of the census. Apparently because Professor Yoo is intelligent, speaks civilly, wears a suit when appropriate, blends in well at faculty gatherings and has good table manners, he should not be held responsible for the natural and probable consequences of his own actions. 

I dispute your contention that the responsibility incurred by those who advise horrific actions, knowing they will be carried out, is of any lesser degree of culpability than the responsibility incurred by those who acted on that advice. This administration has committed war crimes. That fact cannot honestly be disputed. The Bush administration has done the same things to prisoners that the United States claimed were crimes when committed against U.S. prisoners of war during World War II. The United States executed Japanese soldiers for waterboarding American prisoners. Put in simple terms, John Yoo is a co-conspirator in war crimes. 

Yet Professor Yoo has given the Bush administration the aura of respectability, of legality, for these crimes. Professor Yoo has consciously and intentionally given this administration pseudo-legal cover to violate all minimal civilized standards of behavior. He has shamed this nation and undermined its standing in the world. I strongly advise you to view the film Judgment at Nuremberg. That movie was not about the trial of the top Nazis who ordered war crimes. The film instead dealt with a later and lesser known trial of those in the legal profession who, while they would never have committed war crimes themselves, had, through their learning and prestige, provided a veneer of legality to the crimes of the Nazi government. I cannot see the difference between ordering torture and giving wrongful legal permission to order torture when one knows that the permission will be used to justify the later wrongful act. 

And the worst thing, from the standpoint of Boalt Hall, is that the Bush administration can justify itself by contending that it only acted upon the advice of a professor at the esteemed UC Berkeley School of Law who is still in good standing as a faculty member at that law school. In continuing to employ Professor Yoo, UC Berkeley is lending its name and legal backing to Yoo’s incompetent, immoral and unlawful advice to the Bush administration. Further, UC Berkeley School of Law is ratifying those wrongful acts every day it employs to teach its students about the law a man who advised the commission of war crimes.  

If Yoo’s actions are not a crime that will be prosecuted, this is only because he acted as an employee of the same Justice Department which is charged with the prosecution of such crimes. The Justice Department itself was complicit at the highest level. John Ashcroft, Yoo’s then boss, participated in a meeting which planned in detail the torture of prisoners. 

Don’t claim academic freedom. Thirty-six years ago I was denied entrance to Boalt Hall as a law student because a faculty member did not like my political views and vetoed my admission. Somehow academic freedom at Boalt seems to favor those who praise, enable and advise the very powerful. I am not upset that I didn’t go to Boalt. I went to another fine school and have been practicing law since 1975. I am, in fact, very thankful that I do not have to explain the complicity of my law school in bringing about this era of shame to our nation. 

While the employment of Professor Yoo has not stained the law school I did attend, what all of us cannot easily wash out is the stain that John Yoo and the UC. Berkeley School of Law have put on the entire legal profession in this country. 

Paul Glusman is an attorney practicing in Berkeley, about five blocks away from Boalt Hall. He attended Golden Gate Univiersity School of Law.