Dept. of Justice Clears UC Berkeley Professor John Yoo of Misconduct

By Riya Bhattacharjee
Thursday February 25, 2010 - 08:44:00 AM

An internal review by the U.S. Department of Justice released Friday said that the lawyers who authorized waterboarding and other harsh interrogation techniques under the Bush administration showed “poor judgment” but were not guilty of professional misconduct.  

The Justice Department’s findings clear John Yoo, a tenured professor at UC Berkeley and Jay Bybee, both former lawyers in the Department of Justice, of charges that could have had them disbarred.  

Community activists and law students have protested outside the UC Berkeley law school for months, calling for Yoo to be fired and stripped of his legal license. Berkeley Law School Dean Christopher Edley has responded to the criticism by defending Yoo’s actions on the basis of academic freedom. Edley said earlier that he would wait for the Justice Department’s report to make any further decisions about Yoo’s future at the university.  

“DOJ’s conclusion underscores why it was important that the university not rush to judgment,” Edley said in a statement Friday. “Any effort to discipline a faculty member for their outside activities creates dangers that ideological or political agendas may 

be advanced under the vague banner of ‘morality.’ I hope these new developments will end the arguments about faculty sanctions, but we should and will continue to argue about what is right or wrong, legal or illegal in combating terrorism. That’s why we are here.” 

Yoo did not respond to e-mail requests for comment. 

Although an earlier review by the Justice Department’s Office of Professional Responsibility found that Yoo and Bybee had engaged in professional misconduct, the Justice Department’s top lawyer did not agree after reviewing the issue.  

“This decision should not be viewed as an endorsement of the legal work that underlies those memoranda,” Assistant Deputy Attorney General David Margolis said in a memo Friday.  

Although Margolis called the memos flawed, he said that Yoo and Bybee did not “recklessly” or “knowingly” give misleading advice to the Bush administration.  

“But as all that glitters is not gold, all flaws do not consti- 

tute professional misconduct,” he wrote.  

Margolis wrote, “Although Yoo and Bybee’s errors were more than minor, I do not believe they evidence serious deficiencies that could have prejudiced the client... While I have declined to adopt OPR’s findings of misconduct, I fear John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligations to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client.”  

Though Edley’s statement signaled that the law school was ready to close the chapter on whether Yoo should be investigated or even disciplined for authoring the memos, there were those who thought differently. 

“We’d like to emphasize how groundbreaking we find the OPR report to be,” said Megan Schuller, a Berkeley law student who is also a member of the Boalt Alliance to Abolish Torture (B.A.A.T.). “It has new evidence which draws the conclusion that Yoo engaged in intentional professional misconduct. We are disappointed that Deputy Attorney General David Margolis decided to downgrade that.” 

The OPR report says, “Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.” 

It concludes that “given Yoo’s background as a former Supreme Court law clerk and tenured professor of law, we concluded that his awareness of the complex and confusing nature of the law, his failure to carefully read the cases and his exclusive reliance on the work of a junior attorney, established by a preponderance of the evidence that he knowingly failed to present a sufficiently thorough, objective, and candid analysis of the specific intent element of the torture statute.” 

House Judiciary Committee chair John Conyers has disputed Margolis’ decision and scheduled Congressional hearings on the matter.  

Other members of B.A.A.T., which was formed last fall by law students and student organizations to restore respect for the international prohibition against torture, joined Schuller in applauding OPR’s findings. 

“It was apparent that Yoo engaged in professional misconduct, but I’m still shocked by the report—that as a lawyer advising the President on a matter so important as torture, Yoo failed to carefully read the cases he was citing and relied on a junior attorney for critical legal analysis,” said first-year Berkeley law student Thomas Frampton. “If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.” 

B.A.A.T. has been actively educating law students and sending petitions to the Justice Department, the Pennsylvania Bar Association, and the University of California Faculty Senate, urging investigations of Yoo and Bybee. 

“Thorough investigations are essential if we want to ensure that human rights violations and civil rights abuses have stopped and that they never happen again,” said first-year Berkeley law student and B.A.A.T. member Nell Green-Nylen.