Six Reasons Why UC Berkeley Should Investigate John Yoo Instead of Honoring Him – Or, Silence is Complicity

John Yoo, currently on the faculty of the Berkeley Law school at the University of California, is the primary author of the torture memos. Yoo is less well known as the sole author of legal memos authorizing the President’s Surveillance Program (PSP), allegedly justifying warrantless wiretapping of US citizens.

Despite numerous examples of the moral and legal inadequacy of Yoo’s work, former Berkeley Law Dean Edley, as one of his last acts as Dean, presided over two recent honors bestowed on John Yoo: Yoo was named co-chair of Korea Law Center; and Yoo was given an endowed chair.

The National Lawyers Guild San Francisco Bay Area chapter responded by creating a petition demanding that Berkeley Law rescind the honor, and conduct an investigation of John Yoo’s legal work.

Here are six reasons why UC Berkeley Law should investigate whether John Yoo is qualified to be teaching the next generation of lawyers:

1. Department of the Navy General Counsel Alberto Moro stated Yoo’s legal work “contained profound mistakes in its legal analysis.”[1]
2. Jack Goldsmith, then Assistant Attorney General of the Office of Legal Counsel in the US Justice Department, in an almost unprecedented move in 2003, rescinded several of Yoo’s memos and notified the Department of Defense that it could no longer rely on Yoo’s legal analysis. Goldsmith found Yoo’s legal work to be “legally flawed, tendentious in substance and tone, and overbroad…”[2]
3. Yoo’s authorization of the Presidents Surveillance Program was “factually flawed” with no legal basis to support certain activities in the PSP.[3]
4. Yoo’s authorization of the PSP amounted to ignoring an act of Congress, according to James Comey, Yoo’s successor at the Office of Legal Counsel and current Director of the FBI.[4]
5. The Office of Professional Responsibility investigated Yoo and others and concluded that John Yoo had engaged in professional misconduct by “failing to provide thorough, candid, and objective analysis in memoranda regarding the interrogation of detained terrorist suspects.” This finding was later changed to a finding that Yoo engaged in flawed legal reasoning.
6. Academic freedom does not protect John Yoo. Former Dean Edley claims that Yoo’s actions are protected unless he was convicted of a criminal act in a court of law. However, criminal conviction is not the only basis to begin an investigation, as shown in the case of David Delgado Shorter, a professor at UCLA. The UCLA faculty senates committee investigated Professor Shorter based on a complaint by a student group regarding a website link in Professor Shorter’s syllabus. The UCLA faculty senates committee did not require commission of a crime to begin an investigation.

Berkeley Law is one of the premier law schools in the nation, and one of its primary purposes is to educate future lawyers about the law. A basic skill of an effective lawyer is the ability to form a legal opinion regarding specific factual circumstances.

It’s time for the Berkeley Law to either investigate the facts surrounding John Yoo’s legal work, and form an opinion regarding the legal and moral quality of Yoo’s work; or, it’s time for Berkeley Law to emblazon “Silence is Complicity” on its walls.

Notes:

[1] Inquiry into the Treatment of Detainees in U.S. Custody in a report by the U.S. Senate Armed Services Committee (Senate Report), pg. xxvii.

[2] Id., pgs. xxiv; 121.

[3] Unclassified Report on the Presidents Surveillance Program, July 10, 2009, prepared by the Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, Office of the Director of National Intelligence. Report No. 2009-0013-AS.

[4] Id.