Editorials

John Yoo is back teaching at the University of California Berkeley Law School this semester and there doesn’t seem to be much anyone can do about it. A few UC faculty members have pronounced that they consider this to be disgraceful, and some of the more colorful citizen protest groups have trained their sights on Yoo’s public appearances and even hounded him at home, but the Law School itself seems to be paralyzed. One would think that being an obviously incompetent or dishonest practitioner of the legal trade would be enough to disqualify him from teaching impressionable students, but law school honchos, including the Dean, seem to prefer raising bogus issues of academic freedom.  

Despite a few academic pretentions, law schools are really trade schools at heart. The large percentage of graduates will go on to practice the legal trade, and it’s important for the good of the profession and of the society which legal tradespersons are supposed to serve that they are taught by people who can serve as good role models. The same rules should apply for all professions, and usually do. If a med school professor, for example, had a string of egregious losses in malpractice suits for injuring patients in her private practice, her colleagues might think twice before keeping her on to instruct residents in surgery.  

The shoddy way John Yoo worked his trade when he was employed in the Bush administration has now been documented many times over. One of his most persistent and effective critics has been Georgetown University law professor David Cole, who appeared on a Berkeley Law School panel with Yoo last year. In the Oct. 8 New York Review of Books, Cole examines in detail the performance of the lawyers in the federal Office of Legal Counsel, Yoo among them, who wrote a series of memos which were nothing but apologias for torture policies already in use.  

He makes a clear differentiation between the duties of lawyers in private practice and those who have the job of advising government, quoting Jack Goldsmith, one of the heads of the OLC under President Bush: “OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law.” 

Cole adds that “Private lawyers are sometimes considered ‘hired guns,’ whose obligation is to interpret the law as far as possible to do their client’s bidding. We rely on the adversarial system and public airing of arguments and evidence to reach a just result. Lawyers in the Office of Legal Counsel, by contrast, work in a setting that affords no adversarial presentation or public scrutiny. In that position, the lawyer’s obligation is to provide objective advice as an ‘honest broker,’ not to act as an advocate or a hired gun.” 

He contends that when Yoo worked for the OLC he failed to carry out that important obligation. That’s the reason Yoo should not be teaching today: not because of his beliefs, but because his professional actions in the outside world failed to measure up to the highest standard of practice, or even to a minimum acceptable standard. 

Several law school faculty members, in private and off the record, have told me that they think Yoo should be fired because of his dismal performance as a lawyer, but they’ve been reluctant to join the public outcry. The majority of faculty still act like members of an old boys’ club, even though there are a few gals in the mix now—they don’t want to rat on a colleague no matter how richly he deserves it.  

Students, not yet members of the club, especially the ever-lively National Lawyers Guild student group, have not been so shy, however, and are hatching various schemes to expose Yoo. One proposal is to hold a seminar on the proper role of the government lawyer, which would be timely and educational.  

Maybe Professor Cole could be persuaded to come back, one more time, to explain to the sluggish faculty how poorly Yoo performed as a lawyer. One more quote from his latest article: “At its best, law is about seeking justice, regulating state power, respecting human dignity, and protecting the vulnerable. Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client’s desires.” 

Which leads us, perhaps surprisingly, to a short discussion of how the city of Berkeley seems to be going about choosing a “new”city attorney. For the record, at the onset, let us state very clearly that there’s no comparison between the heinous John Yoo and the pedestrian incumbent of the Berkeley City Attorney’s office. But what government lawyers are supposed to do is a thread that runs through both situations. 

In the perhaps 25 or 30 years that I’ve been paying attention to local government, we seem to have had only two city attorneys, first Manuela Albuquerque and now Zach Cowan. Since Albuquerque resigned, Cowan, her right-hand man, has been Acting City Attorney. Those who tried to apply for the job after she left were told that it wasn’t open as long as an “acting” person was in place. 

Eventually in the fullness of time a search procedure was announced and some sort of a search was carried out. There’s no public information available about which candidates were considered, and especially about how diverse the applicant pool was, but the word on the street now is that Cowan, a middle-aged white guy, has a lock on the job regardless of who else applied. On Monday the City Council met in closed session so that the City Manager, who under the charter is responsible for hiring the City Attorney, could reveal his pick.  

Since no vote was taken, their reaction to his choice hasn’t been disclosed. But it’s a lead pipe cinch that the lock-step council majority, an ideology-free principle-agnostic group, will go for extending the Albuquerque-Cowan dynasty, because both attorneys have perfected the technique of telling the electeds whatever they want to hear, constitution be damned. Law at its worst, in other words.  

Just a couple of illustrative bad examples: ordinances derived from Measures N & O, which purported to restrict the free speech right of panhandlers to ask for money, tossed out in federal court, and the ordinance which would have unconstitutionally limited distribution of newspapers on the street. There are many more. 

Next week the council is scheduled to rubber-stamp the manager’s decision, and it would be amazing if they didn’t comply. The usual suspects will make pro-forma protests at council, but it won’t affect anything. 

Here’s a better idea: Oakland and San Francisco elect their city attorneys, and both seem to have gotten good, independent people that way. It would take an initiative to add this to Berkeley’s city charter, but it might be the only way to raise the standard of public lawyering in our city. Citizens have gotten pretty darn good at ballot measures. It’s a hard way to run a city, but with a city council whose interests seem to be limited to greenwashing everything in sight and endorsing the United Nations, it might be the way to go.  

Now if someone could only come up with a similarly simple way of dealing with John Yoo, a much worse problem….