DEUS EX MACHINA
deus ex ma*chi*na
literally “God From The Machine”
noun
In this case the difficult situtation is the impeachment of George Bush, and the improbable character is UC Berkeley Professor of Law John C. Yoo.
TO DEPOSE THE GOD, DECONSTRUCT THE MACHINE
Want to depose George Bush? Deconstruct the machine that is John C. Yoo, Professor of Law at UC Berkeley. To do that I suggest you use just two tools:
- The US Constitution, and
- Justice Jackson in Youngstown Steel.
Go to the landmark decision that curtails the over-expansive powers of the Executive. YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952); also known as YOUNGSTOWN STEELLandmark Cases: Youngstown
FROM JUSTICE JACKSON’S DECISION:
“Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. [343 U.S. 579, 647] “Inherent” powers, “implied” powers, “incidental” powers, “plenary” powers, “war” powers and “emergency” powers are used, often interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. 16 [343 U.S. 579, 648]
The Unitary, Plenary Executive
- Plenary: adjective meaning: full, complete, unlimited
The unitary executive notion can be found in the torture memo, written by John Yoo. “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas,” the memo said. Prohibitions on torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority. . . . Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” The same would go for “federal officials acting pursuant to the president’s constitutional authority.”
JOHN YOO ON WAR POWERS
“Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime.”
John Yoo, interview University of Chicago; book review
“I believe that the War Powers Resolution–which places a sixty-day time limit on the deployment of troops into combat situations abroad–is irrelevant.”
John Yoo, interview University of Chicago; book review
“I do not think that the president is constitutionally required to get legislative authorization for launching military hostilities…”
John Yoo, interview University of Chicago; book review
“I make the case that the Constitution permits the president and/or Congress to violate international law when it engages in war.”
John Yoo, interview University of Chicago; book review
The Geneva Conventions say what George Bush says they say:
“I argue that the president has the sole authority to interpret the Geneva Conventions on behalf of the United States, rather than the courts or Congress…”
John Yoo, interview University of Chicago; book review; Dec. 2005
And looking to the future:
“The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than war disappearing from the world, the threat of war may well be increasing.”
John Yoo, interview University of Chicago; book review; Dec 2005
Interview with John C. YooUniversity of Chicago; December, 2005
The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
THE PRESIDENTS ON WAR POWERS:
A confused George Bush once said, “I am mindful not only of preserving executive powers for myself, but for my predecessors as well.” Here is a sampler of what those predecessors had to say about war powers:
“The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until they shall have deliberated upon the subject, and authorized such a measure. ” — George Washington
“Congress must be called upon to take [reprisal on a nation]; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive”. — Thomas Jefferson
“Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government” — James Madison
“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems in necessary for such purpose, and you allow him to make war at pleasure.” — Abraham Lincoln
“By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done . . .” — Grover Cleveland
“The remedy for this state of things can only be supplied by Congress, since the Constitution has confided to that body alone the power to make war.” — James Buchanan
“The issue [of war with Spain] is now with the Congress. . . . Prepared to execute every obligation imposed upon me by the Constitution and the law, I await your action” — William McKinley
“The assumption by the press that I contemplate intervention in Mexico soil to protect American lives is of course gratuitous, because I seriously doubt whether I have such authority under any circumstances, and if I had I would not exercise it without congressional approval” — Howard Taft
“To send troops [to Russia], would be to create a state of War, into which the United States could not enter without a formal declaration, by Congress, so I could not send a man, even if I wanted to, which I do not.” — Woodrow Wilson
“I know that you will understand that these statements carry with them no implication of military commitments. Only the Congress can make such commitments.” — Franklin Delano Roosevelt
“There is going to be no involvement of America in war unless it is a result of the constitutional process that is placed upon Congress to declare it. Now, let’s have that clear” — Dwight D. Eisenhower
The quotes above were culled from an appendix to War Powers of the President and Congress, by W. Taylor Reveley III. Finally, here is what Richard Nixon had to say, in a David Frost interview taped in 1977:
“When the President does it, that means it is not illegal” — Richard Nixon, The David Frost Interview, 1977
Before 1950, no President or member of Congress believed that the executive branch could wage war without debate in Congress, when such debate was possible.
Researched by Tod Landis. Posted online at http://todlandis.com/presidents.html
THE PRESIDENT CANNOT BE PROSECUTED FOR BREAKING THE LAW
The Yoo/Bybee Torture Memo:
The memo defines torture so narrowly that only activities resulting in “death, organ failure or the permanent impairment of a significant body function” qualify. It also claims, absurdly, that Americans can defend themselves if criminally prosecuted for torture by relying on the criminal law defenses of necessity and/or self-defense, based on the horror of the 9/11 terrorist attacks.
Finally, the memo asserts that the criminal law prohibiting torture “may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President’s Commander-in-Chief powers.”
In short, the memo advises that when acting as commander-in-chief, the president can go beyond the law. (John Dean; The Torture Memo By Judge Jay S Bybee That Haunted Alberto Gonzales’s Confirmation Hearings)
The Yoo/Delahunty Memo
Memorandum from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, to William J. Haynes II, General Counsel, Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees 10-11 (Jan. 9, 2002) [hereinafter Yoo/Delahunty Memo]
(disclaiming the applicability of the War Crimes Act to conduct authorized by the President by reference to the President’s “plenary authority” as Commander in Chief); U.S. Dep’t of Defense, Working Group Report on Detainee Interrogation in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Concerns 24 (2003) [hereinafter Working Group Report on Detainee Interrogation]
“In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.”); id. (asserting that the President has “complete discretion in exercising the Commander-in-Chief power” and that “[a]ny effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President”).“
Yoo/Delahunty to Haynes
THE PRESIDENT CANNOT BE PROSECUTED:
Although we do not have the names of who wrote this Working Group Memo from March, 2002, it has John Yoo’s name written all over it.
“In 2002, the Justice Department’s Office of Legal Counsel took the lead in arguing for a broad view of presidential authority in the war on terrorism. The same office contributed to the Pentagon’s “working group” memo.
“The office was led by two conservative law professors, Jay S. Bybee and John C. Yoo. They wrote the key memos declaring the Geneva Convention did not apply to accused terrorists, the Taliban or other detainees who were held at the U.S. naval base at Guantanamo Bay, Cuba.” Truthout; Leaked Torture Memo: Full Text)
Memorandum for General James T. Hill from Defense Secretary Rumsfeld, Re: Coercive interrogation techniques that can be used with approval of the Defense Secretary (Apr. 2003);
Working Group Report On Detainee Interrogations in the Global War on Terrorism; Assessment of Legal, Historical, Policy, and Operational Considerations; 6 March 2003 LEAKED TORTURE MEMO: FULL TEXT
The 85-page classified report, prepared for Secretary of Defense Rumsfeld, reviews the “legal, historical, police and operational considerations” regarding interrogations of detainees in the war on terrorism. The report provides recommendations to the Secretary of Defense on which interrogation techniques should be approved. It also outlines U.S. laws and international treaties concerning torture and discusses how national security concerns or legal technicalities could overcome such restrictions. The report states that, as commander-in-chief, President Bush is not bound by domestic or international laws prohibiting torture and that government agents who might have used torture under his direction can not be prosecuted by the Justice Department.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]
It says that the President and his Commander in Chief powers, is exempt from laws in the United States that prohibit torture, is exempt from the torture convention which the United States ratified and as Commander in Chief, he can basically take whatever action he wants to defend the United States.”
“The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. In particular, the Department of Justice has opined that “under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a “controlling” Executive act that would immediately and completely override any customary international law.” LEAKED TORTURE MEMO: FULL TEXT
THE PRESIDENT CANNOT BE PROSECUTED
“In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas.”LEAKED TORTURE MEMO: FULL TEXT
CONGRESS CANNOT CURTAIL THE UNITARY POWERS OF THE PRESIDENT DURING TIME OF WAR
“In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander-in-Chief.”
“A construction of Section 2340A that applied the provision to regulate the President’s authority as Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions.”
Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” LEAKED TORTURE MEMO: FULL TEXT
DECONSTRUCTING JOHN C. YOO
Caution: There is an old adage about “Whom the Gods destroy, first they will drive mad.” Don’t wreck yourself on the following, and don’t go mad. Don’t fall under the Medusa spell of John C. Yoo.
- See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196-241 (1996).
- See John C. Yoo, THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, September 25, 2001
- See John C. Yoo, War and the Constitutional Text, 2002
- See John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
The Torture Memos:
NYT Guide to the Torture Memos
- Yoo to Gonzales, Septmber 25, 2001
- Yoo to Gonzales (defines torture as tantamount to organ-failure & death)
- Yoo/Delahunty to Haynes
- Yoo to Taft
- Yoo to Flanigan
- Yoo/Bybee The OLC Torture Memo
The latest:
See Also:
- Violations Law Secton 2340A
- Imperial Presidency: Arthur Schlesinger, 1973
- The Roots of Torture
- All the Presidents Lawyers
- Torture’s Path
SOME YOO DECONSTRUCTIONISTS
Then There’s:
- By Dean Lawrence L. Velvel
December 28, 2005
“Bush and company have very wrongly used the commander-in-chief power as a lever to make the President far, far too powerful, powerful far beyond anything intended by the framers, who created a government in which the legislature was to be the more powerful branch.
John Yoo has despicably abetted this process by writing intellectually corrupt legal opinions, which were to be used to shield officials high and low against the possibility of criminal prosecutions even though their acts plainly are criminal. The legal opinions, moreover, were classified, were all kept secret, in major part because Congress and the public would never stand for what is being done if they were to learn about it by reading the opinions.
RECENT BLOG JOURNALISTS ON JOHN YOO
by Armando; Daily Kos; December 12, 2005
Presidency; by Armando; Daily Kos; December 12, 2005
On Yoo; ReddHedd; December 12, 2005
Memo; Joshua Micah Marshall; December 25, 2005
And, finally:
The Political Folly Awards of 2005
by Tom Engelhardt
December 25, 2005The Most Ubiquitous Uncivil Servant Award goes to… John Yoo.
The ubiquitous Yoo last won this award for redefining torture almost out of existence (“equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”) in one of a series of 2002 memos he wrote justifying the Bush administration’s urge to manhandle suspects in its “war on terror.” Then deputy director of the Justice Department’s Office of Legal Counsel, he is now a law school professor at Berkeley, churning out books and articles on that foundational American dream of an unfettered presidency. A 2001 memo of his proved the key document justifying the President’s order to the National Security Agency to engage in its warrantless wiretapping scheme. It “said the White House was not bound by a federal law prohibiting warrantless eavesdropping on communications.” For that, our judges thought Yoo deserved this year’s award too. By the way, he’s already in the running for the 2007 Uncivil Servant Award. Known for four memos he authored providing “legal” support for almost unfettered presidential power, he was reportedly the author of at least another dozen such memos that “have not yet come to light… The overriding theme of them all is that the president can ignore congressional acts.”
Your poll needs a choice of “all of the above.”
Seriously, though, an excellent job pulling together all that documentation. Thank you for wading through the slime for us. Warn us in advance next time and we’ll chip in and buy you some chest waders on eBay. 😉
BTW, what’s the translation on the Chinese symbols?
DEUS EX MACHINA
Although Yoo was born in Korea, I think he might be able to read it.
Precisely what I said last night on your other diary! I am angry and sick to my stomach by this one man! I have been since I started to listen to him and read his publications. He is communistic and should be deported for this! This brings to mind others that have fallen for his bunk. What frame of mind are they in!!?? I was called out and asked to stand down from my rhetoric last evening by the way I feel about this man. Stating I was succumbing to the likes of the republican party..well, I think not! This one man, and I can name others, are a danger to our democracy. If we can not put them where they belong, ie: china or north korea, then what chance do we really have of saving our country from this demon that he is. Oh well, suppose someone can also call me mad. I suppose I am, but not how you intended it, I think. This kind of thing, drives me nuts to think I served my country in two branches to have him come along and tear it down with his mindset of thinking. He is absolutely insane with his own thoughts.
Thank you for diary about this one man. You have made my day!!!,,,:o)
PS: sorry if I have offended anyone with my thinking. It is just what and how I think. I am American, patriotic, loving, and genuine. If you have any qualms about these just let me know and we can debate it. Thank you.
that has been promising us they’d do this for 25 years and really since the New Deal began.
Can we expel Chicago to the Confederacy?
I consider John C. Yoo the most dangerous mind in America today. George Bush is no brain box. John C. Yoo is the man behind the throne… all the way.
Then when one thinks that he is a tenured professor of law, well there’s the new legal regime that Bush tried to create.
How many students have studied and bought his version of the Constitution and the Executive/Commander in Chief so far?
It boggles.
You got that one pegged!!!!!!!!! Do you think that if we contacted Berkley they would listen to us?
He’s a tenured professor, and if the students at Berkeley can’t get rid of him, you and I can’t do it.
Another torture guy is Jack Goldsmith. He’s at Harvard. Harvard said later that they didn’t know he co-wrote one of the torture memos.
Go figure.
I posted your reply over on the far left, as the right couldn’t handle it.
See:
UC Berkeley Students v. John C. Yoo
It was your extended comment last night that made me write this one. As Kojak used to say, “Who loves ya baby?”
However, when it was titled “DEUS EX MACHINA (Deconstructing John Yoo)” on Daily Kos, it bombed with only 4 comments. But as soom as I titled it “The Most Dangerous Mind In America” it started to get comments and recommends…. too late to save it, now scrolled off into oblivion.
From now on, whenever possible, I am going to title my diaries in Latin, or preferably Greek. That’ll teach me !!!
I have some Censure Yoo info from someone’s post…. will try to get some for you…. and must go find some more Latin for “he who makes the puppet speak” “he who makes the puppet move” “he who makes the puppet appear to be thinking”
Reminds me of that wire on Bush’s back. hmmm…….. wonder who he was wired to…. Scott McLellan?
Thanks for our words to me. I do understand. It is that I get just so irrate over this one man!!!!! I can not control myself. :o)
I only wished I had some power that I could use to do something good with getting rid of him. Oh well, so it goes. I suppose it will take more ppl to demonstrate against this administration and their cronies to get the job done.
I know that the group of ppl who are doing the most damage here have been around for a very long time. This just didnt come about overnight.
Thanks for your diary and hope to see more great work from you in the future.
I don’t think John Yoo is a communist.
He seems to be part of the Straussian Imperial Cabbala that has been operating in the White House for quite some time.
I don’t pretend to understand it, but I have been reading about it for some time, primarily from an article by Seymour Hersh. Here’s a load of stuff about Leo Strauss and his connection with the Bush Presidency. Even today in the news there are more than 22 articles that link the Bush Admin ideology with the political theories of Leo Strauss:
Power of Nightmares goes into Strauss quite a bit. I hear they are making a movie of this.
I was thinking of you when I pasted this stuff in. &;>
Democratic Underground
Dec-21-05 02:05 AM
Also wrote a Letter to the Editor of the LA Times today about Prof. Yoo’s latest op-ed piece that tries to justify what ole Emperor George is doing with wiretaps without warrants.
John Yoo should be stripped of his license to practice law and definitely to teach it…if that’s what one could call it. That mans twisted reasoning and interpretation of the Constitution is dangerous and sick. I personally am going to be writing to the UC Board of Regents and demand that they fire John Yoo from the UC Berkeley pay roll…as a CA taxpayer, I find it revolting that my tax dollars go to this man’s salary…and that this man is even allowed to teach, period.
Washington Monthly
Are any UC alumni/faculty interested in starting a movement to get rid of John Yoo, the writer of the infamous torture memo, who is now a Professor of Law at, of all the places, UC Berkeley? I will be glad to contribute. superdem@superdem.com
Brian W. Carver
UC Berkeley
Boalt Law School Class of 2006
http://sharealike.org/
Boalt Controversy over Yoo Memo
Some background first, then some analysis:
On Friday, May 21, 2004 many Boalt students received a message like this:
Dear fellow Boalt students and alums:
By now, many of you have heard about the role Boalt Professor John Yoo played as part of the Bush Administration to pave the way for the egregious violations of international law we are seeing committed by US troops today in Iraq (see MSNBC or The NY Times).
A group of us graduating 3Ls decided that we could not stand by without speaking our outrage about Professor Yoo’s actions as Deputy Assistant Attorney General under Bush. We’ve articulated that outrage in the attached petition and invite you now, as fellow students of any year and alumni, to join us.
If you are so inclined, please sign the petition at http://www.PetitionOnline.com/bh2004/petition.html before graduation on Saturday. Shortly thereafter we aim to present our perspective to Professor Yoo and the Boalt Administration.
Thanks for considering joining us. If you have comments or ideas, please send them to yoorepudiate at yahoo.com
The email was signed by eight current or graduating Boalt students who organized the effort. In case the news articles disappear, they mention a memo written by Boalt Professor John Yoo while he worked for the Office of Legal Counsel. The Newsweek article revealed that:
…on Jan. 9, 2002, John Yoo of Justice’s Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.
Cut out of the process, as usual, was Colin Powell’s State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, “we were horrified,” said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department’s chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis “seriously flawed.” State’s most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions,” Taft wrote. “I have no doubt we can do so here, where a relative handful of persons is involved.”
I have tried in vain to find a copy of the memo itself. If anyone can find the memo, please post a link here.
The petition read:
To: Boalt Administration and Prof. John Yoo
We, the undersigned students, graduates and alumni of the Boalt Hall School of Law, put forth this petition to express our outrage at certain actions taken by Boalt Prof. John Yoo during his tenure as Deputy Assistant Attorney General for the Office of Legal Counsel.
According to a recent report in Newsweek Magazine entitled “The Roots of Torture”, Prof. Yoo authored a memorandum in January, 2002 advising the Bush Administration that the protections of the Geneva Conventions would not apply to prisoners held by the United States in its execution of the war in Afghanistan. While Secretary of State Colin Powell and lawyers for the State Department vigorously sought to repudiate Prof. Yoo’s flawed legal analysis, subsequent actions taken by the Bush Administration and the military demonstrate that our government has taken Prof. Yoo’s advice to heart.
We believe that the actions taken by Prof. Yoo contributed directly to the reprehensible violations of human rights recently witnessed in Iraq and elsewhere. By seeking to exploit and magnify any technical ambiguities in the Geneva Conventions and the laws of war, Prof. Yoo and the Bush Administration have created a climate of disdain and hostility towards international law, effectively opening the door to the acts of outright torture, rape and murder that we now know were committed by United States soldiers and civilian interrogators. Such abuses, if not explicitly ordered by the Administration or military commanders, were at the very least a foreseeable consequence of crippling the protections of the Geneva Conventions in the context of the “war on terror”.
The terrible consequences of these policies have now demonstrated their folly. The standing of the United States has suffered serious, lasting damage in the eyes of the world, while groups such as Al Qaeda have been strengthened and encouraged. As a result, the Bush Administration’s contempt for international law in numerous contexts has severely hindered our efforts to fight terror.
We therefore call on Prof. Yoo:
Should Prof. Yoo refuse to take these actions, we would then call on him to resign as a faculty member of the Boalt School of Law.
We emphasize that this petition does not constitute an attack on academic freedom, as we fervently believe in a free and open discussion of ideas; rather, our position is a response to those governmental actions taken by Prof. Yoo in his official capacity as Deputy Assistant Attorney General that have caused severe damage to this nation, and the world.
Sincerely,
It was signed by many current students and alumni. As of May 29, the total was 295 signatures.
Then at graduation, some 3Ls participated in a silent protest by wearing red arm bands over their gowns. This action received news coverage before graduation at The Oakland Tribune and afterwards in an AP story.
Then, a week after the first message, on Friday May 28, a number of students received the following email:
Fellow Boalties,
We are a group of students that are becoming concerned with the growing anti-free speech climate at Boalt Hall. In response to calls for faculty resignation and looming speech codes, we have drafted a petition to send an unequivocal message to the Boalt Administration that the student body demands that free speech and academic liberty be protected.
We understand that most of you strongly disagree with the opinions expressed by these faculty members, but we urge you to sign the petition, not as an affirmation of the challenged beliefs, but as a display of your commitment to free speech rights. Any feelings you have as to the content of the speech may be addressed in the “comments” section of the petition. This space is provided so that you do not feel bound by the language of the petition, please express yourself.
http://www.petitiononline.com/boaltfs/petition.html
Most importantly, forward this on to people you think would be interested.
Many Thanks
The Concerned Boalt Students Coalition
concernedboaltstudents at yahoo.com
The counter-petition read:
To: Interim Dean Robert Berring, Assistant Dean Victoria Ortiz, and Dean Christopher Edley
Petition in Defense of Academic Liberty, Free Speech, and Open Discourse at Boalt Hall School of Law
We, the undersigned students and alumni of the Boalt Hall School of Law, put forth this petition to express our concern about the growing threat to academic liberty and free speech at our institution.
In April of this year, interim Dean Robert C. Berring responded to a student complaint that alleged racially insensitive comments had been made by a guest lecturer during a role-play exercise. Dean Berring’s solution to this incident was the proposed drafting of a speech code for Boalt faculty, which would outline what language or subjects were permissible, in effect issuing a prior restraint on professors’ speech. Still more troubling was Berring’s stated plan to resolve the “personnel issues involved;” this comment seems to suggest reprisal against the non-tenured faculty member that had invited the guest lecturer.
More recently, a group of Boalt students has called for Professor John C. Yoo to repudiate a January 2002 memorandum, written while he was a Deputy Attorney General for the Office of Legal Counsel. In this memorandum, Professor Yoo analyzed the legal status of non-state enemy combatants, namely Taliban and al-Qaeda operatives, and proposed that said combatants were not protected by the Geneva Convention. This group of students has called for Professor Yoo’s resignation as a professor of law if he does not repudiate his past findings.
Regardless of the merit or veracity of the above viewpoints, the undersigned are unanimous in the belief that unfettered dialogue should be the paramount concern of any academic institution. The proposed retaliatory measures, if realized, would undo decades of free speech tradition at U.C. Berkeley, which has been a haven for both mass movements and the exposition of unpopular opinions. As such, we fully support the right of those students to engage in protest and to petition, but we reject the imposition of speech codes and retaliatory hiring and retention practices.
The enterprise of law school is a laboratory in which opinions and beliefs are ushered into our great marketplace of ideas. History and public consensus are free to reject any of these espoused views, but such a determination can only come about through free and open discourse.
We therefore make the following resolution:
We, the undersigned, make this resolution, and do so without expressing approval for any of the viewpoints at issue.
Sincerely,
A day later it had 116 signatures.
I have not signed either petition. This is primarily because I think both make excellent points and both fail to appreciate all the relevant points the other side makes. I also think the entire debate would proceed better if all involved had read the memo. As I said, I have not read it because I cannot find a copy. On the other hand, the key concerns I have with the petitions might not be resolved by the memo’s content itself. Here’s why.
The memo could, from a legal standpoint, be well-argued or not. If it is a total sham piece intended only to support a convenient course of action for the Bush administration, then it should be condemned and might be so irresponsible as to represent something that we would not want from any Boalt faculty member. I doubt that its arguments are that bad.
However, even if it is well-argued from a legal standpoint, one only needs to hear the conclusion to rightly say that it is certainly short-sighted. A large purpose of the Geneva convention is self-protection. We agree to treat prisoners humanely, in part, because we want our own soldiers to be treated humanely when they become prisoners. So, good legal distinctions or not, the obvious consequence of deciding not to treat some prisoners according to the guidelines of the Geneva Convention is that others, be they nations or rogue groups, will be more likely to find their own legal distinctions to justify treating our soldiers and citizens inhumanely as well. This is an ill-advised path to follow. I am not sure it rises to the level of calling on a faculty member to resign.
But another motivation for the Geneva convention is a simple appreciation of human dignity. Again, one need only hear the conclusion of the memo to rightly say that it seems to fail to adequately appreciate the importance of treating all people with respect. This is a core value of American society and Common Law legal systems. Suppose you had an accused criminal that was guilty beyond any shadow of a doubt. Why do we provide this person with all the same legal protections of the innocent? (Think on that.) I believe one big reason is a simple appreciation of human dignity. We say to the guilty person, “We so respect human dignity, that we will provide you with all the protections of our legal system. We value human dignity too much to do otherwise.” There are other reasons for this practice as well.
The issue here also goes beyond legal due process concerns to the justification of torture. Ethicists debate whether the information a terrorist might reveal could ever justify torture. I do not know of any who believe it can be justified except in the narrowest of dire circumstances. Human dignity again demands such practices be abhorred. But the question here becomes, does a law professor’s failure to agree with or appreciate the value our legal system places on due process rights and the values of human dignity in these contexts rise to the level of requiring his resignation? I think that’s a tough question about which reasonable people could disagree. Here, in particular, the actual text of the memo might be crucial.
Those who called for resignation make a distinction between Yoo’s public policy work for Government with his academic endeavors. They call for his resignation, not because of anything he said in a classroom or as part of his academic work, but because of his actions while in Government. This distinction is supposed to support the notion that one can call for his resignation while supporting his academic freedom. I believe this distinction fails. You inevitably implicate academic freedom when you suggest resignation as the solution for extra-academic speech. Call on him to repudiate his views, call on him to rethink them, call on him to better justify them, but resignation from an academic post seems an inappropriate solution.
I doubt one could find a more staunch defender of academic freedom than I. I agree that “unfettered dialogue should be the paramount concern of any academic institution.” But I also am willing to be persuaded that some actions in some contexts can be so irresponsible as to not represent the good judgment we expect of our faculty. A friend recently reminded me that those in the Nazi government likely wrote many memos supporting their actions, and might protest they were just doing their jobs or that they had good legal distinctions on which to base their positions. But there comes a point when the fascists have taken power that you have to stand up for what is right and doing otherwise is immoral and irresponsible. Does the present situation go this far? I’m not sure.
I do believe that there is probably nothing the Bush administration has done that is more misguided or more dangerous than its treatment of those it detains. From the Arab “material witnesses” detained after 9/11 for months on end to Guantanamo to Padilla and Hamdi to Abu Ghraib, the administration’s view that it can presume guilt, fail to provide counsel, not bring charges, etc. is frightening and contrary to true American values. An argument could be made that supporting such a sweeping reversal of important civil liberties is so irresponsible that it has no place among Boalt’s faculty. I have yet to see that argument made convincingly though. I think it is difficult for anyone truly committed to academic freedom. (I would also revise the above to say that the administration’s policy of pre-emptive war is probably more dangerous and frightening.)
So, without further information, I think those who call for resignation may be unjustified in thinking there is a relevant distinction that justifies calling on a faculty member to resign for their work in government policy-making. Any call for resignation implicates academic freedom. But I also think the staunch defenders of academic freedom have to ask themselves tough questions about its limits. Let’s have a look at the memo. Let’s think about the consequences of the policies of this administration. Let’s think about the values that support our commitment to due process rights and the rights of prisoners to humane treatment, free from coercion. A careful articulation of those values and their place in the present context might lead us to believe that those who fail to appreciate these values are miserable failures as faculty members at a law school.
Yoo is quoted in the AP article above as saying, “I’m happy to listen to their viewpoints. Beyond that I’m not going to change what I think.” I hope this represents an offer to be persuaded by reasoned argumentation. If so, more effort should be expended on carefully explaining why Yoo’s current view is unsound. He says he’ll listen and he might even be persuaded. If on the other hand, his declaration that he’s not going to change what he thinks represents an unwillingness to even entertain the possibility that an alternative viewpoint could persuade him to change his mind, then that attitude would truly be one worthy of requiring his resignation.
I also posted this in an online forum for Boalt students.
Berkeley Daily Planet
http://www.berkeleydaily.org
Boalt Students Respond to Prisoner Doctrine Author
By Michael W. Anderson (05-25-04)
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 http://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.
Berkeley Daily Planet
October 25, 2005
Professor’s Stance on Torture Sparks Protest By JAKOB SCHILLER
Mark Treeker, an organizer with the organization The World Can’t Wait, led a mock detainee through Sproul Plaza Monday afternoon. Participants rallied against Boalt Hall Professor John Yoo’s role in drafting U.S. legal memos that the group says led to torture in places such as Guantanamo Bay and Iraq.
The protest was also a lead-up to a nation-wide rally the group is organizing for Nov. 2 to protest the anniversary of the re-election of George W. Bush.
Sunsara Taylor, a national organizer with the group, said that The World Can’t Wait is asking people to walk out of their jobs and school that day and gather at rallying points in 60 sites across the country, including a noon rally at the Civic Center Plaza in San Francisco followed by a march.
“People need to start putting their bodies in front of this juggernaut,” she said. “People are too willing to turn their heads and go to work like normal, go to school like normal.”
See also:
Google Search Articles Berkeley Daily Planet “John Yoo”
New York Sun
May 25, 2004
Berkeley Students Attack Free Speech
Demand Conservative Professor Apologize
By JOSH GERSTEIN Staff Reporter of the Sun
SAN FRANCISCO — A petition demanding that a conservative law professor at the University of California at Berkeley repudiate his views on the legal aspects of the war on terror or resign his teaching position is being decried as an attack on academic freedom.
The target of the petition, which has gained signatures from more than 200 Berkeley law students and graduates,is Professor John Yoo.
Before joining the faculty at the law school last year, he was a deputy assistant attorney general in the Justice Department’s office of legal counsel.
There, Mr. Yoo crafted a January 9, 2002, memorandum that found that members of Al Qaeda and of Afghanistan’s Taliban militia were not protected by the Geneva Conventions on prisoners of war or by related treaties.
Newsweek disclosed the 42-page memorandum last week and portions of it were posted on the magazine’s Web site.
The memo incensed some Berkeley law students, who view it as the beginning of an erosion of standards for treatment of prisoners that ultimately led to the abuses that occurred at American-run prisons in Iraq.
“We believe it created a climate of disdain for international norms which protect the rights of detainees,” said the 24-year-old leader of the petition drive, Mazen Basrawi, who graduated on Saturday from the law school, which is also known as Boalt Hall. He said Mr.Yoo’s actions verged on the criminal.
“It’s comparable to him having committed a crime, because we believe he did undermine the Geneva Convention,” Mr. Basrawi said. “An independent tribunal would find him guilty.”
The petition, which was circulated at the school’s commencement ceremonies, calls on Mr. Yoo “to follow the example of Boalt Hall’s finest alumnus, Chief Justice Earl Warren, by his expression of deep regret for supporting the internment of Japanese Americans during World War II.”
It goes on to ask the professor to repudiate his memorandum and “to reject as immoral the use of interrogation techniques involving serious physical and psychological coercion.”
“Should Professor Yoo refuse to take these actions,we would then call on him to resign as a faculty member of the Boalt School of Law,”the petition reads.
As of yesterday evening, an online version of the petition had gathered 244 signatures, most of them from people claiming to be graduates of the school. Many of the signers said they were revolted by Mr.Yoo’s views.
“I am disgusted by Professor Yoo’s actions. Disgraceful!” wrote a 1989 graduate, Stephanie Garrabrant-Sierra.
In an interview with The New York Sun yesterday, Mr.Yoo said he was taking the protest in stride.
“It wouldn’t be spring in Berkeley without some nutty protest, so I’m not surprised,” said the professor, who was once a law clerk to Justice Thomas.
Mr.Yoo said he would not renounce his view that the treaties did not apply to the Taliban and Al Qaeda. He also said he was troubled by the calls that he resign.
“This idea of asking me to resign, I think, is just over the top,” Mr.Yoo said. “Anytime people are saying someone should resign from their position because of what they think, in a university setting,I think that is an attack on academic freedom. It’s by definition what tenure is created for.”
Mr.Yoo said the students and alumni who want him to quit are going to be disappointed. “There’s as much chance of me resigning as there is of a Berkeley law student flunking out,which is to say, zero.”
Mr. Yoo dismissed as “pure speculation” the idea that his memo about detainees from Afghanistan led to the abuse of prisoners in Iraq.
“They’re two totally different wars and two different legal regimes,” the professor said. “The Geneva Convention clearly applied to Iraq.”
The most prominent criticism of the petition drive has come from the university’s student newspaper, the Daily Californian. In a strongly worded editorial published yesterday, the paper denounced the petition drive against Mr. Yoo as “a move that infringes on academic freedom.”
“In demanding his resignation,these students are treading on the academic freedom and free speech UC Berkeley students and faculty strive to uphold,” the editorial said. It called the petition “ludicrous” and said Mr.Yoo was under no obligation to resign or renounce his views.
“Expecting him to do either is a compromise of academic freedom.Berkeley should be a haven for free speech, not liberalism,” the editorial concluded.
Mr. Yoo said he was taken aback by the newspaper’s strong backing, which is more often lent to left-wing causes. “I’m impressed and pleased, but a little surprised,” he said.
The interim dean of the law school, Robert Herring, said he views the protest as positive event.
“I think that it’s a healthy thing that people get fired up,” Mr. Herring said. “It’s a perfect representation of the nature of Boalt Hall.”
Asked if he thought the calls for Mr. Yoo to resign were appropriate,Mr.Herring said, “That’s a different question.”
“I’ve gotten e-mails saying, `You should fire him.’ That’s not the way the academic world works,” Mr. Herring said. “The issues of the First Amendment and academic freedom would probably become very large in any discussion about something like that.”
Mr. Basrawi said the petition does not call on the university to fire Mr.Yoo. He also said that the criticism of Mr. Yoo is not aimed at his academic work, but solely his government service.
“What we’re attacking is the position that he took as an advisor to the president,” Mr. Basrawi said.
The Berkeley law school’s incoming dean, Christopher Edley, is presently a law professor at Harvard. He was on vacation yesterday and could not be reached for comment.
See also:
Google Search “UC Berkeley””tenure””John Yoo”
Google Search “UC Berkeley””protest””John Yoo”
Thanks to you Brenda, I’m going to send my “DEUS EX MACHINA (Deconstructing John Yoo)” to The Berkeley Daily Planet. I’ll let their editors do to it what needs doing, and see if it creates a stir over there. Onwards, friend !
You are most certainly welcome. We all need to join forces in order to get rid of these kids of men in our society. Dangerous is too kind of a discription …:o) treasonous is more like it IMHO. Glad I could be of some help uin such a serious matter. Keep me informed as to the response. HUGS
I mean quite literally that I aim to deconstruct the machine that is John C. Yoo. Greater minds than mine (as in Jack Balkin of Balkinization, once a lawyer in the Office of Legal Counsel, and Michael Froomkin of Discourse.net, Professor of Law at University of Miami) have been deconstructing Yoo’s legal arguments for more than 3 years now.
I am not a lawyer, and my understanding of the Constitution might get me a passed in the 8th grade. YET I can see through Yoo’s arguments, even if I cannot fathom his motivation.
As I see it, Bush can claim one of two things:
Before this is over, I expect Bush will claim both.
Ahh Sus my friend, that time off did a world of good for you ; )
Great Article, and looking forward to more, keep up the great work my man.
Peace bro
Here’s an excerpt from one of Susskinds links.
Maybe someone can help me understand this.
Torture is done with the intent to inflict physical pain….does that mean if the intent is to get information it’s not torture?
It must occur outside the United States….Gitmo is in the United States…does Castro know that?…..so the law does not apply. Here’s where I am confused.
The law means nothing if it can be interpreted. It has to be rock solid with no loopholes.
It seems torture is open to interpretation.
So John Yoo might be able to argue in the same way about cold blooded murder .
Are they any video links to this guy. I would like to see what he looks like.
So who died and appointed John Yoo God? What makes his opinion worth so much? Are there not suitably credentialled legal scholars who disagree? And do their opinions not count for anything? As far as I can tell, a distinguished legal scholar’s opinion is actually worth very little until it’s tested in court. What make’s Yoo’s opinion such a big deal?
He was the main brain in the Office of Legal Counsel. Served as Deputy Assistant Attorney General for the Office of Legal Counsel at the Department of Justice 2001-3. He answered directly to Alberto Gonzales. (This was before Gonzales became Attorney General.) John Yoo wrote the paper (1996) claiming the President’s right (if not mandate) to wage war pre-emptively… that is first-strike war without Congress’ declaration, and in violation of international law. (It is my personal belief that this 1996 paper got him his job in the Bush Admin.)
John Yoo wrote the opinion that torture was legal… up to organ failure and/or death… to gain information from suspected (not proven) terrorists. John Yoo wrote the opinion that suspected terrorists captured in Afghanistan and elsewhere were not POW’s as recognized by the Geneva Conventions, but “illegal combatants” who had no rights at all. To be held indefinitely without legal representation, and without a hearing.
His greatest achievement (sp) as far as the Bush Admin was concerned was to write into or interpret the law in such a way that NO ONE COULD BE PROSECUTED if ever these crimes were to go to law. Now that was a neat trick !!!
Even though he is merely a professor of law at what was once the most liberal university in the US, he still wields enormous influence. Take for example his most recent article in the LA Times: A President Can Pull The Triger; by John Yoo; LA Times; December 20, 2005.
You name it… in the last four years if there is a despicable US policy about the Presidents power, about the Commander in Chief’s power, about Congress, about the Constitution, about international law, about the law of war, especially about torture, about the rights of captives (POW’s) and even now, about national security and domestic spying, John Yoo’s name is on it.
Do you remember the Love Canal? New York, I think it was. A toxic dump so poisonous that for years and years people kept dying from cancer…. That is how I view the legal opinions that is John Yoo’s body of work.
Now, about the credentialled legal scholars who disagree…. they are LEGION !! My two favorites are:
Then there are the lawyers at Human Rights First, and the ACLU, Center for Constitutional Rights, The National Lawyers Guild, and even The American Bar Association.