Thursday, February 04, 2010

Boalt Students Speak Out Against Yoo and Bybee Findings

This morning, the Berkeley Daily Planet published an op-ed written by the heads of Berkeley's chapter of the National Lawyers Guild discussing the recent findings by Obama's Justice Department on John Yoo and Jay Bybee.

I found this section of the op-ed to be the most compelling, as it spells out further action that could be taken against Yoo and Bybee:
Despite its revised conclusion, the OPR report, at least based on what has been leaked, still seems to provide considerable evidence to support investigations of professional misconduct. From what Newsweek reported, it appears that Yoo and Bybee altered their professional legal advice to achieve a particular end: to give the appearance that torture could be committed without liability. The report also seems to echo what Justice officials have long said: that the legal reasoning offered was bunk. These are smart, experienced lawyers. If their legal advice was so shoddy, it raises an obvious red flag regarding the legal duty to give an honest and competent good-faith assessment of the law.

Criminal prosecution is also still an option. Torture and the conspiracy to commit it are felonies. And it is well established that government lawyers can be held responsible for the criminal results of their actions. Criminal investigations of the torture memo lawyers are underway in foreign jurisdictions, and, under international law, state and local governments also have a duty to investigate and prosecute alleged torturers and conspirators within their jurisdictions.

Labels:

47 Comments:

Blogger Patrick said...

Counterpoint:

1. The five-year statute of limitations for allegations of attorney misconduct in Pennsylvania, (where JY is licensed to practice law) has expired.

2. Attorney General Eric Holder Jr. has rejected the idea of criminal investigations of OLC lawyers who developed counterterrorism policy.

3. The Berkeley Daily Planet. 'Nuff said.

2/04/2010 9:58 AM  
Anonymous Anonymous said...

This is hilarious. They are NOT going to get prosecuted.

Keep quoting the NLG and Newsweek if you want, but the administration has already essentially dropped this one.

The Quixotic (sp?) charge against Yoo and Bybee will likely last for quite awhile...oh well.

2/04/2010 10:01 AM  
Blogger Carbolic said...

Jesus, I don't know where to begin.

1. How can someone dismiss a report ("travesty of justice") that she hasn't read?

2. What does it say about someone's concept of "accountability" if she cares only about punishment, not about factual findings?

2. How can somebody say that the President doesn't have a horse in a case that goes to the very heart of the separation of powers, executive authority under art. II of the U.S. Constitution, and the President's ability to receive legal advice?

3. "From what Newsweek reported, it appears that Yoo and Bybee altered their professional legal advice to achieve a particular end: to give the appearance that torture could be committed without liability." Where does the the Newsweek article say that? It's not misconduct to add analysis on new topics as a result of client feedback.

4. Conspiracy to commit torture? Does anyone have anything specific to substantiate such a broad accusation? Or "Office of Legal Council [sic] lawlessness," while we're at it?

5. State bar associations--you know why this isn't going anywhere for either JY or JB, right?

Seriously--Boalties have got to stop embarassing themselves with such shoddy arguments. Or at least stop identifying themselves as Berkeley Law students.

2/04/2010 11:20 AM  
Anonymous Anonymous said...

it might not be too early to return to Dean Edley's position on Prof. Yoo's status as professor. as i recall, Dean Edley carefully left open the possibility that the university might piggy-back on the analysis of some authoritative body (i.e., OPR or a state bar) that Yoo had committed professional misconduct. if the latest version of the OPR report doesn't even refer the matter to state bars or conclude that an ethics violation had been committed, presumably that spells the end of efforts to revoke his tenure. barring some extraordinary turn of events, the only criminal prosecution would be one abroad.

2/04/2010 11:47 AM  
Blogger Sean said...

I find this humorous.

2/04/2010 11:59 AM  
Blogger James said...

This whole issue has been a political white wash. Torture is illegal. Yoo told the President that torture was legal (by trying to say that practices like waterboarding aren't what we mean when we say torture).

No one will ever get prosecuted because Democratic Leadership was aware of these programs in 2003. They waited too long to say anything and thus would be implicated if there were any sort of real inquiry about what went down.

Also, Patrick - people say your third point about N&B all of the time. Not super helpful.

Carbolic - You don't have to read the report to know the outcome. If you think the outcome is unjust, you can call a report a travesty of justice. Pretty simple.

If you believe torture is illegal and that waterboarding is torture, you can arrive at the conclusion that Yoo told the President he had the ability to order an illegal act. Again, not that hard of a conclusion to come to or understand.

2/04/2010 1:28 PM  
Blogger Sean said...

"If you believe torture is illegal and that waterboarding is torture, you can arrive at the conclusion that Yoo told the President he had the ability to order an illegal act. Again, not that hard of a conclusion to come to or understand."

True, but the issue is whether or not there was sufficient misconduct in coming to the conclusion that they did. To assert that the simple fact that you disagree with the conclusion reached is evidence enough that there was misconduct to sanction an individual is silly. The investigation was not into whether or not the conclusion was correct, it was whether there was misconduct.

2/04/2010 2:05 PM  
Blogger Carbolic said...

James--Oh, that seems like fun! Let me try. Hmm. Okay.

Intentionally killing someone is murder. Facilitating the murder of another person is also murder. Judges and jurors facilitate the killing of another person when they sentence someone to capital punishment. Therefore, judges and jurors are guilty of murder.

Or wait there's more! Intentionally killing someone is murder. Ordering the murder of someone is also murder. President Obama orders the murder of someone when he approves a predator drone strike in Afghanistan. Therefore, President Obama is guilty of murder.

Again, not that hard of a conclusion to come to or understand.

2/04/2010 2:07 PM  
Blogger Carbolic said...

Or even better. Torture is illegal. Congress wrote qualifying language into the definition of torture (both in statutes and treaties) that was clearly intended to permit the President to commit that type of torture. Therefore, Congress is guilty of torture.

No wonder the Democratic Leadership won't prosecute anyone! (Wait, what the hell does that even mean?)

2/04/2010 2:31 PM  
Anonymous Anonymous said...

James,

Y*o was asked to define torture. Just because his definition of torture does not comport with yours does not mean he is criminally liable. Something more is required. That something more would be evidence that he gave advice that he knew or should have known was wrong.

"Ok," you say, "Y*o is a smart man and must have known his advice was wrong." But your problem is that you would need to show that waterboarding, under U.S. law, was most definitely torture. It would not be enough to show that it was unlawful. Neither would it be enough to show that 95% of people think it is torture. Instead, you would need to show that the law was SO CLEAR that no other conclusion was possible. Unfortunately, regardless of what you think, the law is/was simply not that clear.

If you can point to a clear, binding, undisputed piece of law, that shows that waterboarding is torture please do so.

I happen to thing that waterboarding is most definitely torture. But that stems from a moral conviction, not a legal one. It turns out that the force of my moral conviction is simply insufficient to base a conviction on. A pity.

2/04/2010 2:33 PM  
Anonymous Anonymous said...

Is James a 1L? Has he learned mens rea yet?

2/04/2010 3:02 PM  
Blogger Don Spark said...

Sophomoric humor and passionate poorly founded arguments on the subject of the most famous representative of torture on earth does not help the boalt student body's public image already so tarnished by their 'feet of clay' on Yoo and seeming ignorance of torture and it's meaning to humanity and history...and what you should do about it.

I am not dismissing the law students at Berkeley. But, I am complaining about the level of discussion in the comments in nuts and boalts. To be more specific, I am referring to those not siding against Yoo. Does this have something to do with the federalist society at boalt?

I am happy to hear some conscious voices here. Perhaps you could assist your classmates in understanding how the hundreds of years of the law of torture here and around the world works, the function of torture as 'state terror' and the development of empathy for the victims. These things seem to be lacking in the home of "Bush's architect of torture".

"It is a bitter and tragic fact that, for the Europeans in Algeria,
being a man means first and foremost superiority to the Moslems. . . .
The need is . . . to humiliate them, to crush their pride and drag
them down to animal level. The body may live, but the spirit must be
killed. . . . Therefore, they are undressed; they are beaten; they are
mocked; soldiers come and go, proffering insults and threats with a
nonchalance which they want to make as terrible as possible."

Jean-Paul Sartre, Introduction to Henri Alleg, The Question, 1958

Torture...is not a polite debate.
Torture isn't just a war crime.
Torture is a crime against humanity.
Torture is an abomination and a crystallization of everything John Yoo stands for.
It is your responsibility here not to quietly and politely go about your business. Your uncomplaining presence along with your dean's policy on this is providing legitimacy to Yoo.

Torture + Silence = Complicity

2/04/2010 3:20 PM  
Anonymous Anonymous said...

Don Spark has a weird name.

2/04/2010 3:31 PM  
Anonymous Anonymous said...

Don Spark,

Why don't you define torture for us? I would like a clear, concise, legal definition that explains the different between a permissible interrogation technique and torture.

I don't disagree that waterboarding is torture, but I don't think what is/what is not torture is easy to define.

You say that many of the arguments here are passionate yet poorly founded. Yet all you give us is rhetoric and a historical quotation. In your rambling prose I find no argument at all.

2/04/2010 3:36 PM  
Blogger Armen said...

"Well, Camus can do, but Sartre is smartre."

2/04/2010 3:38 PM  
Anonymous Anonymous said...

Dear Editor(s),

May I humbly request that we limit N&B to one Yoo-Hoo post per 30 calendar days? It would be much appreciated.

Thanks,

Your Readers

2/04/2010 3:39 PM  
Anonymous Anonymous said...

Don Spark,

You are completely reframing the discussion, which is unfair and dishonest.

The discussion is not about whether torture is bad or not. I am certain that every single Boalt student believes that torture is abhorrent. We all agree that torture did occur. And I'm sure we all believe that it is regrettable that Yoo came to the conclusion that torture is legal.

But that is not what is at issue.

What is at issue is whether there was any professional misconduct on Yoo's part. Reaching an incorrect conclusion is not a criminal activity. In this case, his actions would be criminal if he had knowingly stated that torture is legal while knowing that it is not.

You are conflating two completely different issue.

2/04/2010 3:45 PM  
Anonymous Anonymous said...

That "torture + silence = complicity" line is pretty catchy. And incredibly relevant to the daily experiences of most law students. I almost wish somebody had screamed something like that at my parents when they were in town for graduation...oh wait.

2/04/2010 3:53 PM  
Anonymous Anonymous said...

"And I'm sure we all believe that it is regrettable that Yoo came to the conclusion that torture is legal."


I'm pretty sure this is not true. I can't imagine a legal memo saying, "Here is something that is illegal, but for you, it's cool. Do it."

What Yoo said is certain things fall in the grey area below the threshold of torture. Most people just assume that those things are, in fact, torture.

2/04/2010 4:34 PM  
Blogger Patrick said...

" . . . the most famous representative of torture on earth . . ."

Sigh. Does no one else remember Vlad the Impaler?

2/04/2010 4:40 PM  
Anonymous Anonymous said...

As a former Boalt student who has been out in private practice for some years, I have a bit of advice: forget this kind of BS, work on getting good grades and worry about what kind of job your going to get when you get out.

What the hell do you care if John Yoo wrote memos that justified KSM's water boarding. If you ask me, they didn't water board that terrorist enough!

Now get your head out of the clouds!

2/04/2010 4:52 PM  
Blogger Don Spark said...

Anonymous',

Patrick; Sorry. The most famous "living" representative of torture on Earth is John Yoo.

On my reframing the discussion, on behalf of those currently being tortured - which your resistance could make a difference in, it needs to be: the ethics and actions of boalt law students who do not stand against Yoo strongly - starting with citing the poorly founded legal arguments in the comments sections in this blog on yoo. My last two "rambling" paragraphs are some support for what I am pointing to as the unethical behavior of boalt students who do not take a stand against Yoo. Granted. My composition is not eloquent.

As boalt law students John Yoo is employed to teach, you all have an ethical obligation here. Ethically, your dean is a international embarrassment and fundamentally self-serving in his constantly bastardizing this very important debate into academic freedom. Do not give Edley a pass for covering his ass!

I am not a lawyer. But it is clear torture would be defined differently in different legal contexts. As lawyers, would you say torture at Nueremberg would be defined in a very different way than in the recent case of the Texas sheriff who waterboarded?
http://www.google.com/search?q=waterboarding%20texas%20sheriff&ie=utf-8&oe=utf-8

In the US Constitution, "Cruel and unusual punishment is a statement implying that governments shall not inflict suffering or humiliation on the condemned as punishment for crimes...". Beyond inflicting pain, let's add to our "understanding" of what torture is cruelty to prisoners (being interogated or not) which can encompass things which are not directly pain inflicting. It is very important to realize that the sensory deprivation and controlled environmental stress-ors like using isolation, extremes of temperature and noise like has been practiced at Guantanimo does perhaps more harm to the brain than what is normally considered torture(or locking someone in an enclosed space with bugs they have a phobia of as our ninth circuit judge bybee has recommended).

Take a normal dictionary definition of torture and compare it to Yoo's from the memo

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts."

For a legal perspective, perhaps you could start with the 2008

WHITE PAPER ON THE LAW OF TORTURE AND HOLDING ACCOUNTABLE THOSE WHO ARE COMPLICIT IN APPROVING TORTURE
OF PERSONS IN U.S. CUSTODY

National Lawyers Guild
International Association of Democratic Lawyers

http://nlg.org/news/statements/NLGWhitePaper_Yoo.doc

"This paper provides the background to the legal issues underpinning the call by the National Lawyers Guild (NLG) to prosecute and dismiss from their jobs people like then Deputy Assistant Attorney General John Choon Yoo..."

2/04/2010 4:56 PM  
Blogger Toney said...

4:52, that's really helpful, thanks.

I am somewhat glad that the wrong people on that other side aren't as annoyingly long-winded as the wrong people on my side.

2/04/2010 4:58 PM  
Blogger Armen said...

My last two "rambling" paragraphs are some support for what I am pointing to as the unethical behavior of boalt students who do not take a stand against Yoo.

Says the guy with a blog post titled "EVERYTHING YOU’VE BEEN TOLD ABOUT COMMUNISM IS WRONG; Capitalism is a failure…Revolution is the solution"

2/04/2010 5:08 PM  
Blogger McWho said...

Ah, the wonders of the internet.

2/04/2010 5:23 PM  
Blogger Patrick said...

Don, I feel where you are coming from and I suspect we could have a grand old time ranting about politics over beers.

But most of what you have cited is just, well, wrong. The constitutional text you quote, to provide one example, is not actually in the Constitution. (For what it is worth, I am trying to be direct, not rude.)

I believe that if you visited Boalt Hall, you would find two types of students: those who are disgusted by torture and think Professor Yoo broke the law, and those who are disgusted by torture and yet think what Professor Yoo did was not technically illegal. What you will have difficulty finding are people who applaud torture.

That's not the point I want to make, however. Rather, I would like to share why your comment is offensive to me. It is not the rambling prose. It is not the misplaced historical references. It is the tone of personal attack with which you address my beliefs. I happen to be in the second group of Boalt students - I am shocked and disgusted that we waterboarded people in the name of American freedom. But I also believe that "morally reprehensible" does not always equal "illegal." Morality, God, and all the rest of that jazz are separate from the law, and for good reason. And I try very hard to keep them separate in my mind because, well, because I feel that is the right thing to do. So, you see, there are principles at work behind my position and there are coherent reasons for my conclusion. Yet your comment appears to give me no credit for them - accuses me of an ethical failing without actually explaining what that failing is, and without accounting for the possibility that there may be other ethical considerations at wrok.

And that, above all else, is what bothers me most about the "fire John Yoo" movement. Its rhetoric, embodied in comments like yours (which attacks my moral worth because I will not make a political stand for something I think is false) are among the worst kind dishonorable speech: you are not not telling me I should agree with you; you're telling me I am a moral failure because I do not agree with you. Can you see why this is offensive to me?

The ironic thing is that I share your views on the point you care most about - morality and government. But your delivery, to put it bluntly, sucks. If you intent is to inflame, or vent, or cause a ruckus, you're on the right track. But if your intent is to change minds or persuade people to listen, you're going about it in a very, very poor way.

2/04/2010 5:34 PM  
Blogger quiubomona said...

@Sean and 10:01:

There is absolutely NOTHING funny about torture. Even if you think that BAAT or the townie protesters are total nut jobs, calling this subject "hilarious" makes YOU look insane.

2/04/2010 6:07 PM  
Blogger Matt said...

Next post: "Boalt Dean Speaks Out (Sort of) Against High-Level Officials in Obama Administration." See here. (And look at that picture. Who is giving it to DE in the chin?)

2/04/2010 6:30 PM  
Blogger Sean said...

I didn't say torture was funny. I said I found this humorous. By this I meant the content of the article. The reason I found the content of the article humorous is because those opposed to Yoo who wanted to have him investigated will never be satisfied with any investigation which does not result in Yoo never being able to work again in any situation, without regard to what is the (legally) correct solution. I find it humorous that people can be so sure that they are correct that they will assume that investigations were half-assed simply because the investigation did not result in what they wanted.

Do I think torture is humorous? No.

Do I think people protesting things with no grounded reason are humorous? Yes.

2/04/2010 10:28 PM  
Blogger McWho said...

I found the article hilarious because of how inaccurate it was. It is just as hilarious, in my mind, as "Bill Clinton WILL be brought to justice for having that affair!"

2/04/2010 10:33 PM  
Anonymous Anonymous said...

I will say this anonymously for fairly obvious reasons, but:

I agree with the definition of torture used in the memos. Is lesser harm such as waterboarding the 'right' thing? Possibly/probably not. But I don't consider it torture. I hear torture, I think putting someone on the rack. I think losing an eye. I think dying. I don't think really-uncomfortable-possibly-scary-as-all-hell-but-you-will-be-ok.

I really only say this to point out that not EVERYONE thinks Yoo was wrong in the first place.

2/04/2010 10:36 PM  
Blogger Patrick said...

10:36, you are definitely not alone.

It really is bizarre, the veil of cozy agreement surrounding this issue, because anonymous polls (which I can't pull up right now) show that Americans are 50/50 on the issue.

2/04/2010 10:40 PM  
Blogger McWho said...

Part of it is the Bay Area/West Coast bubble that most of us are in. Travel elsewhere, and you will be floored by the difference in average opinion on a bunch of topics.

If you go below 40% of so in an area believing a certain way, then they tend to keep quiet. For example, there are actually 100,000 republicans in San Francisco. You just never hear from them.

2/04/2010 10:45 PM  
Anonymous Anonymous said...

10:36 - Since you agree with the definition of torture used in the memos, I assume you think that some forms of "mental pain or suffering" rise to the level of torture. What would qualify, in your mind, if not the fear induced by waterboarding? I ask because all the examples you give involve inflicting physical pain.

2/04/2010 11:45 PM  
Blogger quiubomona said...

McWho: "Travel elsewhere"...do you own a passport? Europe thinks we're off the deep end. When I was living in South Africa in 2008, it was commonplace to compare Bush to Mugabe, precisely because both administrations think it's OK to beat people they don't like. That's the level of moral authority torture earned us. 50% of Americans probably would be OK with sending Arab-Americans to internment camps. You want to give them that option, too? Due process law exists for the purpose of restraining popular anger and fear--why should we let those elements undermine the law?

Re: 10:36--What do you make of the fact that the methods John Yoo authorized were copied from the KGB, which used them to exact false confessions (not extract intelligence)? Also, and I mean this very humbly, why does it matter what YOU think torture is? You're OK with permanent psychological damage and long-lasting excruciating pain, so we should do that to other people?

Would you want to be thrown up against a wall headfirst for hours on end? It drives me crazy that people talk about torture as if it's this totally abstract concept, when in fact what we are talking about is planning the treatment of actual human beings--and yes, this could just as easily be you, if you happened to have the wrong name or be in the wrong place at the wrong time.

2/04/2010 11:48 PM  
Blogger Carbolic said...

To say that JY is the apotheosis of torture, or to write that GWB and Robert Mugabe are similar because they "think it's OK to beat people they don't like" (wat?) is frankly ridiculous. And it goes to show that these kinds of critics have a basic disconnect with both U.S. policy and what the word "torture" really means.

Do I really need to run down the parade of horribles? Repeatedly gang-raping women while you beat them with heavy whips and urinate on their faces. Beating 8-month pregnant women with iron rods. Mutilation and the knocking out of teeth. Suffocation until unconsciousness. Stabbing in the eyes. Burning to death or near-death. Forced drinking of industrial weedkiller (which, when not fatal, melts cheeks and permanently impairs the ability to eat solids).

Pop quiz--are we talking about the U.S. or Zimbabwe in the above paragraph? Anyone who can't make the distinction loses all credibility on this issue.

2/05/2010 7:29 AM  
Blogger Toney said...

Carbolic, he said "compare" Bush to Mugabe, not equate. Obviously the comparison is hyperbolic, unfair and anecdotal, but it does nice refute the point McWho made. When you are the US, and as civilized and prominent as we are, it takes much less to gain the international eye.

2/05/2010 8:55 AM  
Anonymous Anonymous said...

So predictable. Someone says something vaguely left-of-center on Nuts & Boalts, 8 right-wing alums with nothing better to do than come back to this blog jump on him/her. You all are a joke...

2/05/2010 9:04 AM  
Blogger Carbolic said...

And Quiubomona--you could at least educate yourself on the policies that you criticize. Or at least provide some kind of justification for what you write.

"You're OK with permanent psychological damage and long-lasting excruciating pain, so we should do that to other people?" -- Did anyone ever argue that "permanent psychological damage" is not severe mental pain or suffering? Or that "long-lasting excruciating pain" doesn't meet the threshhold of severe pain? (It sounds like the kind of pain associated with a serious impairment of bodily function to me.)

"Would you want to be thrown up against a wall headfirst for hours on end?" This isn't a description of walling. In fact, this would be not only torture but also murder, since I can't see how anyone could survive being thrown against a wall headfirst for hours on end.

This is the problem with all these debates about JB/JY. The memos get exaggerated so hyperbolicly that it becomes the ultimate straw-man argument. In light of South Africa's own recent history, I would have hoped that Quiubomona would be able to distinguish between rebounding someone against a specially-constructed bouncy wall, and smashing someone's head in against concrete cinderblocks.

2/05/2010 9:29 AM  
Blogger Carbolic said...

Oh, and it's only in Berkeley that a self-proclaimed radical and communist that advocates "REVOLUTION IN THE USA" is described as "vaguely left of center." Or that anyone responding to the arguments of the same is automatically "right-wing."

2/05/2010 9:33 AM  
Anonymous Anonymous said...

Yes 9:04, Don Sparks is "vaguely left-of-center." Similar to how Rush Limbaugh is "somewhat" right-of-center.

Perhaps you don't fully realize where the center is?

2/05/2010 9:35 AM  
Anonymous Anonymous said...

I believe the "vaguely left-of-center" was in reference to James, who (for the first time ever) made a not-entirely-condescending post about Boalt activists.

You will note that that was all it took for the pile-on to begin...

2/05/2010 11:57 AM  
Blogger Carbolic said...

First, I've been piling on since the beginning.

Second, James got a response not because he is liberal, but because his post relied on an embarassingly faulty syllogism that confuses two different meanings of the word "torture." And then he smugly finished his post with the words, "Again, not that hard of a conclusion to come to or understand."

2/05/2010 1:36 PM  
Blogger McWho said...

quiubomona,

Europe and San Francisco share many political views. They are also both very liberal areas, on average. America, on average, is not.

I would guess that the Russians would have a different view on this subject, as would the Chinese, Israelites, Egyptians, Saudis, Mexicans, etc. etc.

So no, France would probably not agree with Professor Yoo. Shocker.

By "travel elsewhere" I meant where people who vote Americans into government live. Like all those states you flyover on your way to a broadway show.

2/05/2010 1:56 PM  
Anonymous Anonymous said...

While this is not really the topic at the moment, I find posts such as Don Spark's and Quiubomona's to be representative of the most deplorable and ironic aspect of knee jerk liberals: they preach tolerance, and yet are entirely intolerant of those people that hold different viewpoints than themselves.

2/05/2010 2:52 PM  
Anonymous Anonymous said...

but viewpoints different than theirs are evil and wrong silly.

2/05/2010 3:04 PM  
Blogger Sean said...

Only two of the posters are alums that I know of for sure, not sure where 8 is coming from.

2/05/2010 7:19 PM  

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