"Darn. There goes my judo match with Putin."

Say what you want about ThatWhichShallNotBeSpoken, this is hands-down the best response to a diplomatic sanction.

John Yoo Barred from Russia, Could Give A Flying ... Pig

Anyone to provide an illustrated version of what a judo match b/w Yoo and Putin would look like will immediately be published. And lauded in whatever way they'd like. Submissions to nutsnboalts@gmail.com.

Human Rights Watch Renews Call To Investigate Bush Administration on Torture

At the end of June, the Obama administration announced it was dropping 99 out of 101 investigations into the CIA's use of torture.

Human Rights Watch has since called again for the Obama administration to investigate what went on during the Bush II years and let juries determine whether or not water boarding and other techniques are legally justified in trying to prevent terrorism.

Would it be a legally justifiable defense for someone to use water boarding to find a kidnapped relative? What if the individual accidentally drowned? A debate between Kenneth Roth of Human Rights Watch (and a former USAA) and John Baker, a professor at LSU, touches on that and other issues in the eternal torture debate. Of course, Yoo was asked to participate, but declined. Excerpted in the Democracy Now debate is one of Yoo's weakest defenses of the policy. (And it includes the moment where Stewart calls him on the fib that 9/11 was the first attack in the US by a non-state group, Yoo responds by basically saying that 9/11 was different because it was different).

We know that Bush, Cheney, et al. would do it all again if they could. We know that the US prosecuted individuals for the same actions towards our troops and other countries' troops in the past. What makes things different now?

Toilet Paper Prank Video Reveals Perpetrator

The commenters have been really getting on our asses to write something about the Yoo Toilet Paper prank. I wanted to sit it out for at least a few hours so someone could do the hard work and get to the bottom of it for me.

Well, Gawker points to the video below posted by an artist from LA. Some might brand this form of prank as asinine, but I couldn't wipe the smile off my face after seeing the video.

Berkeley Law Students Applaud DOJ Report Findings, Torture Memo Lawyers Engaged in Misconduct: Urge Congress, State Bar and University to Investigate

[Update]: The Yoo situation seems all but settled as Congress is looking in to whether or not to hold hearings. The analysis below strikes me as a step in the right direction.

______________________________

From the Boalt Alliance to Abolish Torture:

The final report of the Justice Department’s Office of Professional Responsibility (OPR) released Friday found that former Office of Legal Counsel lawyer John Yoo engaged in “intentional professional misconduct” and that Yoo's colleague, former Office of Legal Counsel lawyer John Bybee, engaged in “reckless disregard of his professional obligations” in their rendering of legal justifications for the Bush Administration’s torture policy. OPR Report, p. 252, 256. The OPR report concludes that “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.” OPR Report, p. 254.

Although Associate Deputy Attorney General David Margolis decided to downgrade the OPR findings to “poor judgment” and to refrain from referring the OPR findings to the relevant state bars, House Judiciary Committee chair, John Conyers, has disputed Margolis's decision and has scheduled Congressional hearings on the matter. Though the DOJ’s recommendation does not include sanctions, the contents of the OPR report also provide a sound basis for action by other entities with jurisdiction over the lawyers’ conduct, including the University of California and the Pennsylvania and DC Bar Associations.

“The Pennsylvania and DC bar associations and the University of California have refused to investigate the conduct of Professor Yoo until the release of the OPR report,” stated first-year Berkeley Law student [RH]. “Now they no longer have an excuse – they must fulfill their duty to investigate the professional misconduct and ethics violations spelled out in the OPR report.”

Student members of the Boalt Alliance to Abolish Torture (BAAT) at Berkeley Law School, where John Yoo is a tenured professor, applauded the findings in the report and expressed dismay over the new facts revealed, including that Yoo “knowingly provided incomplete and one-sided advice.” OPR Report, p. 252. As a tenured professor of law, the OPR report concludes “by a preponderance of the evidence” that Yoo “knowingly failed to present a sufficiently thorough, objective, and candid analysis” through “his failure to carefully read the cases, and his exclusive reliance on the work of a junior attorney.” OPR Report, p. 253.

“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 [TF]. “If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.”

BAAT was formed by law students and student organizations to restore respect for the international prohibition against torture. The organization has been active in educating law students and recently sent petitions to the Justice Department, the Pennsylvania Bar Association, and the University of California Faculty Senate urging investigations of the OLC lawyers. “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,” says BAAT member and first-year Berkeley Law student [NGN].

Boalt Alliance to Abolish Torture: http://sites.google.com/site/abolishtorture/

Excerpts from the OPR Report:

“Yoo committed intentional professional misconduct” and “knowingly provided incomplete and one-sided advice.” p. 252.

“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.” p. 254.

“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.” p. 253.

“Yoo knowingly provided incomplete advice to the client.” p. 253.

“[Yoo] knowingly misstated the strength of the Bybee Memo’s argument ‘that interrogation of [prisoners] using methods that might violate [the torture statute] would be justified under the doctrine of self-defense....’” p. 253.

“Yoo’s legal analyses justified acts of outright torture.” p. 252.

You can also check out Slate's take on the issue.

A Major Victory for JY

After four years, the report on JY and JB by the Justice Department's Office of Professional Responsibility has finally been released. As Patrick noted, we already had a post on a Newsweek report that the DOJ was not planning on referring JY and JB to their respective bar associations for professional misconduct.

But the released documents go much farther and are, quite frankly, astounding. The OPR Report finds that both JY and JB commited professional misconduct (JY, it claims, purposefully), and promises to notify the bar associations of the states in which they practice.

But the Report is accompanied by a 69-page memorandum by Associate Deputy Attorney General David Margolis, who writes,

For the reasons stated below, I do not adopt OPR's finding of misconduct. . . . OPR's own analytic framework defines "professional misconduct" such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis below, I cannot adopt OPR's finding of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where [JY] and [JB] are licensed.

Margolis's criticisms of the report are partly conveyed in the following segment:

In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR's own standard analytic framework. See http://www.usdoj.gov/opr/framework.pdf/. This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without exception since that time.

That's not all. The memo notes that OPR provided then-AG Michael Mukasey and then-Deputy AG Mark Filip with a 191-page draft on December 23, 2008, only 20 days before it intended to release the report publicly. While agreeing that the JY/JB memos contained errors, Mukasey and Filip so strongly criticized the substance and conclusions of the draft that they requested that their letter conveying these criticisms be made public if the OPR Report was ever publicly released.

The reason why this is a big deal is that Margolis, Mukasey, and Filip are hugely respected "lions" in the legal profession. Margolis was described by by Legal Times as "one of the Justice Department's most respected officials, a lawyer with sterling reputation earned over 42 years of service at the department." (For that quote and a countervailing view by Harpers, see here.) Before becoming Attorney General (in 2007), Mukasey was one of the most respected District Judges in the Southern District of New York. (I've recently seen a hearing in which a N.Y. State trial judge gave greater deference to a Mukasey opinion on a point of N.Y. law than it did to the theoretically binding opinion of N.Y.'s highest court.) Filip, too, was formerly a District Judge in the Chicago. According to the AP, "he was ranked first among federal judges in terms of integrity and professionalism in a 2006 poll of Chicago-area attorneys."

It's important to note here that none of these three are defending the judgement of either JY or JB. But their criticisms of the OPR Report are pretty striking. I hope to read both documents over the weekend and have some more substantive comments. In the meantime, loonies on all sides of the debate can vent their rantings here.

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.

Obama's DOJ Clears Yoo & Bybee

This is news. Newsweek reports that the DOJ is on the verge of releasing a finalized report of its investigation into Bush administration OLC attorneys who researched and reported on legal questions ranging from enhanced interrogation to wiretapping to all sorts of mundane topics about which I have no clue because, of course, they are not the subjects of constant and viscous vicious attacks. More specifically, the report is expected to declare that Professor Yoo and Judge Bybee committed no professional misconduct, although it does question their judgment. In other words, all bark and no bite.

Perhaps the report means they did not commit any egregious wrongs. Perhaps the report means the Obama administration has embraced the notion of a powerful executive. Query to the Berkeley left: which conclusion displeases you more?

"We're Going to Take a Commercial Break, and I'm Going to Put My Head in Ice Water"

Open thread for discussion on Professor JY's appearance on the Daily Show With John Stewart:

• Part One
• Part Two
• Extended, Part One
• Extended, Part Two
• Extended, Part Three

I guess my thoughts on this have been replayed over and over and over . . . With respect to tonight, I thought JY was commendably calm, collected, and intelligent. So was Stewart -- I really appreciated that at those times it became clear that Stewart wasn't following, he stopped and listened.

Anyway, without getting further into it, I'll limit this post to a few memorable quotes (not necessarily from the JY segment), links to the online interviews when they are available, and open the forum for comments.

• [After Stewart asked how it felt to be infamous] Well, the same thing must happen to you. As soon as they heard I was coming on here, my students started emailing me, asking how tall you are, how much you weigh, etc.
• We're going to take a commercial break, and I'm going to put my head in ice water.
• That is an established fact of conventional thought.
• It's the republicans who will keep you warm and safe, to enjoy the hell-scape the world will become.
• I hope that someday in the future, you'll get a chance to, uh, write humane, um, briefs.

And another comment, not from the show, but overheard in the room while I watched:

• [About Rod Blagojevich]: His poor, poor publicity team. This last year must have been so hard!

John Yoo Saves Half the Library from the "Fire"

I was sitting in the library Atrium when the fire alarm went off and of course I dutifully shuffled into the exit stairwell with about 30 other students. We descended a flight to the marked exit only to find said exit locked.

So, we turned around and marched back up, bumping into other students who were coming down. Right as I was about to re-enter the library proper, John Yoo burst through the door saying, "No, come with me this way. I have the key."

And just like that John Yoo saved us all from our hypothetical fiery death. It was awesome.

Anyway, more thoughts on the alarms.

Check out this scenario:

1. You know campus police are all busy over at the protests.
2. You know there're millions of laptops and other valuable shit at the law school.
3. You set off the fire alarm, run in while everyone's outside, and steal shit.
4. The man who came up with this theory sees someone younger looking and not dressed like a law student poke his head into an IP class that has just resumed. Perhaps looking for valuables?

Sneaky.

Also, I'm gonna try and get some live blog action down at Wheeler later assuming the rain doesn't dissuade me.

The Dean to the Left is the One in the Right

Via email to the good people at "Boalt Hall":

To Boalt Hall students, staff and faculty:

Associate Dean Bob Berring has already written to you concerning the disruptions on the first day of classes, Monday August 17th, by a group of approximately 70 people protesting the presence of Professor John Yoo on our faculty. In all likelihood, there will further protests with the purpose of disrupting Professor Yoo’s class, and spillover effects interfering with other classes and activities. Professor Berring will keep you apprised of our efforts to balance our respect for freedom of speech with our insistence that our teaching and other functions go on.

I write separately, however, to address the substance of the protests and to update my Spring 2008 comments on the controversy surrounding Professor Yoo's work in the Bush Administration concerning presidential power, torture, and measures combating the threat of terrorism.

Also, if you don’t want the entire exegesis below, I was interviewed about the protests for three or four minutes on KQED radio: [here].

The dean has, of course, gotten it right and I point with pride to his leadership. No doubt, commentators on this thread will disagree with me or with the dean or with both, but what can I say? Those commentators are ignorant, or mistaken, or proceed upon a normative view that departs radically from principles upon which the success of our society depends. Or all three.

You can find DE's statement posed in the comments. Apologies in advance for the piecemeal fashion in which it comes, but %$@-ing Google Blogger only allows 4,000 characters per comment.

It's Time to Talk About the John Y*o "Prank"

Many of you have probably seen the video of a "prank" an Australian comedy show pulled on Professor Y*o in a Boalt classroom. I'm not going to link it here, but it was on abovethelaw recently, and I'm sure you can google it. Knock yourself out.

Obviously, how you feel about this video is inextricably tied to the way you feel about the whole "academic freedom vs. possible ethical violations and general horribleness of torture" debate that we have waged in the comments ad nauseum. I'm not really interested in talking about that. I want to know how it made you feel as a student or alumnus of Boalt and someone who has encountered Professor Y*o in real life.

When I watched the video, I felt sick. It struck me as a heinous violation of the sanctity of a classroom and a hostile invasion of a place I consider home. It felt more like an attack than a joke. More than that, I felt bad for Y*o. I don't agree with his opinions on executive authority, but all he was trying to do that day was teach. I could sense his shame at being forced to end the course over something that had so little to do with his job at Boalt. It seemed like his sins were being visited upon his students, which strikes me as unfair no matter how terrible the sin. For lack of a more eloquent term, the whole thing just seemed gross.

This video hit the same week as Bruno, which I found pretty hilarious. Sure, it also left a bit of a bad taste in my mouth initially, but I laughed it off with a shrug. I figured those people deserve it! This discrepancy got me thinking about the cost of relevant comedy. I loved Borat and The Ali G Show. I love the correspondent segments on The Daily Show and Stephen Colbert's interviews with congresspeople. Comedy involving real people mixes humor with comeuppance, and it's a potent combination. Laughing feels twice as great when mixed with smug self-righteousness. But Y*o is the first person I've seen in one of these videos who I actually know. This is the first time the comedy has invaded my world, and it completely changed the way I felt. If it had been Dick Cheney on his ranch instead of John Y*o in my school, I would have laughed my ass off.

Is that natural, or am I a hypocrite? Do I need to completely rethink the way I view comedy, or are these Australian guys just not funny? I don't know the answers to these questions, but the video has forced me to consider whether harmless fun ever is, and if not, whether harmful fun can ever be worth it. How'd it make you feel?

UPDATE: Apparently this incident occurred at Chapman, not Boalt. I was wondering why he was teaching in such a small classroom!

UPDATE: News of a new film by the "Yes Men" along similar lines, but with large corporations as the targets. I guess this will be the first test of my newfound skepticism of guerrilla comedy. Then again, it sounds pretty damn funny.

Fall Courses 2009

[Update 04/19/09 (Patrick): One last bump here, as registration is this week.

Update 04/10/09 (Patrick): Hat tip and huge thanks to Anonymous in the comments, who shared a link to Berkeley Law's "two year plan" for course offerings.  

I had a pdf posted here until this morning, when I received an angrily polite email demanding I take it down.  The tone of the email (all demands, and no explanations) tempted me to leave it up, but in the end . . . meh.  I don't really have the energy to be stubborn over something trivial.  If you are an alum or someone with a genuine and legitimate interest in the plan, email me and I'll happily kick you an updated pdf. Current students can find a copy at the SID protected link, above.]

--------------------------------------------------

The course list for fall 2009 will be posted tomorrow at this link. But given today’s lunch talk about graduation requirements, bar courses, and the like, we might as well kick this thing off. Here is a rundown from the talk:

To graduate, students must take the core 1L curriculum, Professional Responsibility (as a 2L), and Con Law (at any time). They must also fulfill a 40-70 page writing requirement, supervised by a faculty member, by the end of the fall semester of their third year. Recommended bar courses include Evidence, Civ Pro II, Corporations, and Crim Pro. Note tat this fall will be the last time Civ Pro II is offered at Boalt.

Lastly, the scuttlebutt is that John Yoo will teach one of the Civ Pro classes.

Some of that guidance is mandatory, and some of it is sort of over the top (e.g., exactly what are they doing to do to you if you choose not to take Professional Responsibility until your 3L year? Expulsion? Prison? Death?). I suspect that which is which should become evident as the comments develop. I’ll bump this thread a time or two as tele-BEARS Phase I approaches.

DOJ "Torture Memos" Released

President Obama has released four “torture” memos written by the DOJ Office of the Legal Counselor Lawyers. You can find the memos at the ACLU’s website. The memos were published with very little redaction – it looks like mainly names have been taken out.

Also of note is Obama’s decision not to prosecute any CIA interrogators who relied on the memos in good faith. In some ways, I can understand this decision. He says “nothing will be gained by spending our time and energy laying blame for the past.” On the other hand, how much of a difference is there between the Nazi guard at Auschwitz, or the Hutu who murders his neighbor because the radio told him to, or the interrogator who goes a little too far. If the premise in the first two cases is that these people should have known, superior orders or government information notwithstanding, that some acts are fundamentally criminal, shouldn’t that same premise apply in the third case as well? What’s more, I worry that this could set a dangerous precedent in future cases: will we now give immunity to all persons who commit acts of torture or other crimes so abhorrent that the international community has labeled them “jus cogens” (acts that are always prohibited) if there is a legal memo authorizing these acts?

I’m not disappointed in Obama, nor do I feel betrayed by this decision. He ran as a centrist, and I think compromises of this sort are exactly what he promised in his campaign. I suspect that a lawsuit challenging the President’s constitutional authority to grant this immunity is next, but I’m not holding my breath for it.

As a side note, Kevin Jon Heller on Opinio Juris has an interesting argument on whether the CIA interrogators were actually acting in good faith.

That Empty Berkeley Tradition Strikes Again

From the tread immediately below:

Anonymous said...

On a different note. Can we get a post on the silly petition being circulated re: Yoo's civ pro II class.

Posted by Anonymous to Nuts & Boalts at 4/15/2009 4:18 PM

I don't know about the petition, but if it is a demand to replace Yoo with someone else, I know what I think (comments).

[Update 04/16/09, Patrick: as a commentator notes, it's only a matter of time until this thread pops up elsewhere. So, maybe I should say what I think instead of just assuming I'm such a loudmouth that everyone knows.

What I think is this: we should let the University do its job. No one is using the Torture Memos anymore nor are the Memos part of the curriculum at Boalt, so there is no need to head off an emergency. It's downright disturbing to me that the very same people who are angry at Yoo for bending and breaking the law are also willing to sidestep the University rules in their quest for vengeance. I'd like to sit the petition writers down for a basic Q&A on topics like "explain with precision the legal flaws in the Memos, and cite the Memo that contains them," spell "Abu Ghraib" or "locate Iraq on a map." The results of that session would reveal the petition for what it is: an expression of political animus, heavy on passion but light on principles, and hastily conceived as the Torture Memos themselves.

Finally, this may be petty of me but as a factual matter I'd like to flag a hurried revision to the petition (HT, again, to a commentator). It used to be called the catchy, "Reconsider John Yoo for Civ Pro II." Now it is the much more benign,"More Options for Civ Pro II." The new title gestures toward free choice and expression, but not enough to carry the day: you'd like to see him fired. Fine. I get that. But if you love this country and its laws, may I politely submit that this is a fantastic opportunity to embrace them. Wait for a conviction, and then can him by the book.]

DE Stands Up For Academic Freedom

In today's Contra Costa Times, DE responded to an article which inferred that the University may discipline Y*o for his opinions during work for the Bush administration. Click on the title of this post for a link.

Please note that I do not include an opinion here as to torture memo's, or any other work by Professor Y*o. While I know that there are people who have strong opinions on both sides, MY belief is that this country, and even moreso this university, should be a place where people may express their views freely, honestly, and constructively. Professor Y*o did work in the service of this country, even if you disagree that it was the correct path for the country to go. He was doing what he thought was right, even though it may turn out that he was wrong.

Remember that a University is not a court of law, and is not a judge on whether academic views are correct, legal, or just. As DE discusses in the article, it would be a step back for academic freedom to punish someone for expressing views that foster academic debate. If Professor Y*o did something illegal, it is for prosecutors and courts to decide---not Berkeley.

I commend DE for standing up for one of our Professors. Even if you disagree with Professor Y*o (and many at Boalt do), we should all be glad that McCarthy-esque witch-hunts will not be tolerated by the leaders of our school.

Thank you Boalt, and thank you, DE.

Torture Foiled No Plots (probably)

The Washington Post, by no means a bastion of liberal ideals, has a great article on the ineffectiveness (and indeed counterproductiveness) of using torture as means of obtaining intelligence. Dan Froomkin has a follow-up editorial that also makes for good reading.

The summary of both is: 1) it's impossible to predict when people have information that only torture will produce, 2) people will say anything, truthful or not, to stopped being tortured, and 3) following these "leads" is really expensive, consuming resources that could be used elsewhere. In the case of Abu Zubaida, the poster-child for the rationale of using torture, all three apply.

Everyone knows where I stand on this, so I'll largely notch this up under the "no duh" category, and leave the commentary up to the commentators.

Update: at the request of Patrick, I would like to emphasize that these articles only concern the effectiveness (and relatedly, the necessity) of torture, and not the legality of it.

Sue Yoo

There is an interesting article about a lawsuit against John Yoo, and how Obama might respond, over at Politico.

Yoo Too Should Keep an Eye on This

About a year ago the Justice Department's Office of Professional Responsibility disclosed it had been investigating whether John Yoo and Judge Jay Bybee's "Torture Memos" failed to meet the Department's ethical standards for professional responsibility. The report has not yet been made public, but it's leaking (see also here), and if the leaks are accurate, the report will be startling when it is released:



Apparently, among other things the report recommends state bar associations consider disbarring the authors because, according to the report, the memos departed so far from the Justice Department's own standards as to be a breach of professional responsibility.

More startling still are rumors that the report contains emails from from senior officials in the Bush administration dictating the results and outcome of the memos while they were being written. (No surprise there, unless you are a cynic like me -- in that case, you're stunned that the documentation wasn't destroyed.) Those emails, if real, are significant because the Bush Administration's defense has always been a blend of necessity and reliance (last 40 seconds of clip): "Everything we did was -- you know, it had legal -- legal opinions behind it. . . . I got legal opinions that said whatever we're going to do is legal." It should go without saying that a reliance defense begins to look thin (isn't the test reasonableness?) if the Administration asked for carte blanche in advance.

I do not know when the report will be released. But the Office of Professional Responsibility, which is waiting for Yoo and Bybee to contribute their version of the story before it is finalized and sent to Attorney General Eric Holder, has recommended the report be made public when it is finalized. This is something to keep an eye on.

Yoo-Hoo!

President Obama (don't those words make a lovely couple?) has ordered the DOJ and OLC to side with the defense in Jose Padilla v. John Yoo (pdf). Next week they'll be filing a motion to dismiss the suit.

I think this is the right move but I also think it's awkward, for two reasons. First, Obama’s pick to head the OLC, Dawn Johnsen, wrote an article in Slate last year calling one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.” Now she's been instructed to defend him. I don't know about you, but I hate it when that kind of thing happens to me.

Second, it's apt to piss off the hefty contingent of left-leaning voters who confuse our President with a Messiah by forgetting that he is constrained practical realities. Right or wrong, it's hardly indisputable that it's a good idea to encourage litigation against government agents acting within their discretion and official capacity, on behalf of what they perceive to be the national interest. Nor is it a wise investment in the future vitality of the current administration to allow civil suits to proceed against the former one. In other words, it's entirely possible for Bush and Obama, both being Presidents, will be common creatures in the face of common problems. Principled or not, this is reality.

Berkeley City Council Delves Back into National Politics

The Marine Corps issue may have fizzled, but apparently the City of Berkeley's passion for national and foreign policy burns on.

Next week the Berkeley City Council will vote on a resolution demanding the United States charge Boalt Professor John Yoo with war crimes. The Council will also consider "whether to order Boalt to offer alternatives to Yoo's courses, so no student is forced to take a class from him if they don't want to." (SF Gate article here.)  Never mind that the truth is any student CAN avoid his classes, or that the City can't "order" the law school to offer courses -- the Council couldn't order the Marines out of its recruiting office either, but was that a stumbling block?

While it is difficult to imagine a dumber idea than attempting to go head-to-head with the United States Marine Corps, at least the City's behavior in that fiasco was (relatively) harmless. As I recall, it mostly amounted to a lot of public kissing. This resolution, however, is actually dangerous. Freedom of speech and liberal ideals cannot be squared with the idea that a city government may publicly disapprove of a political point of view by taking affirmative steps to sequester it. The use of governmental power to suppress controversial (even dangerous) viewpoints is a neo-conservative tactic more befitting Karl Rove than a local municipality. The City is taking exactly the kind of reactionary moral-low ground that the "birthplace of the Free Speech Movement" is supposed to stand against. Berkeley's mindset here is cancerous, it is dangerous, it is abusive, and (from this liberal's point of view) it is embarrassing.