Code Pink protests John Yoo at the Commonwealth Club. Photo: Steve Rhodes/flickr

The long line of UC law school graduates approached the protest with some hesitation.

Crossing from the opposite side of Gayley Avenue on the northern edge of UC’s campus, the professors in their colorful medieval robes were the first to see the photos, the orange suited inmate, the leaflets against torture. Then some 250 students followed in their black caps and gowns, streaming toward the Greek Theater for their graduation ceremonies.

They saw once again the unforgettable images of Abu Ghraib and Guantanamo. A color photograph of a naked young man with a black hood stretched to a metal bed frame, a man in an orange jumpsuit kneeling and in chains. And they filed past a dozen of us handing out pamphlets and orange ribbons to protest American torture policies.

These photos show war crimes. They show people seized without any process of law, held in arbitrary detention and subjected to agonizing suffering. For what? For the false confessions, inaccurate information and wild allegations that have become a staple during the “war on terror.” Some day, I’m convinced they will convict Bush administration officials, such as UC law professor John Yoo, of war crimes.

When I joined these protests four years ago, organized by the Bush impeachment group, the World Can’t Wait, we seemed pitifully few in number. Maybe six or eight of us gathered outside of Boalt Hall on the busy Bancroft Avenue. Few of the passers-by took the leaflets. We often addressed our arguments loudly and persuasively – to ourselves. It was easy to feel irrelevant and marginal. Behind us, with its imposing stone façade, Boalt Hall seemed an impressive, almost impregnable institution.

Poster from the 2008 Boalt Law School graduation. Photo: joebeon/flickr

This Friday, however, I was astonished to notice a huge change: at least a dozen or so faculty members wearing these orange ribbons, brilliantly obvious against the black cloth of their robes. And they were followed by group after group of students who were also wearing these ribbons. My impression was that as many as a quarter of the 250 or so graduating students have begun to join the campaign to raise questions and press for accountability for Yoo’s phony legal “theories” that have produced so much human suffering.

Yes, conscience is contagious. Anyone working for social justice should treasure these signs of hope. Eventually, the false arguments concocted under the heat of circumstances lose their appeal and the human heart responds to the truth. The sight of those orange ribbons on Friday morning reminded me of the title of a short story I read in high school about the patient, inexorable process of justice: “They Grind Exceedingly Small.” It was a paraphrase of an old proverb: “Though the mills of God grind slowly, yet they grind exceeding small.”

For John Yoo, the millstones of justice seem almost to have stopped grinding. Ever since 2002, when Yoo wrote the now infamous “torture memos” as a deputy assistant attorney in the Bush administration’s Justice Department, a number of legal reviews and court cases against him have been dismissed or languished.

Two years ago, Christopher Edley Jr., dean of the Boalt law school, issued a short statement responding to those calling for Yoo’s dismissal from the law school. His argument: academic freedom.

Edley agreed that “Professor Yoo offered bad ideas and even worse advice during his government service.”

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

Edley argued that Yoo, as a Justice Department lawyer, only gave advice. The responsibility for implementing the advice lay with the government officials. “Yoo was an adviser, but President Bush and his national security appointees were the deciders.”

John Yoo. Photo: Lance Page/flickr

The key issue, Edley said, is that a professor can only be fired if he engages in “unacceptable conduct,” according to the university’s regulations.

Was there clear professional misconduct – that is, some breach of the professional ethics applicable to a government attorney – material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

I believe the issue with Yoo is not academic freedom but academic malpractice. Yoo’s theories have led directly to human suffering, destruction of due process and legal safeguards. For those who argue this is “freedom of speech,” consider how you’d feel about a medical doctor arguing in favor of the medical use of arsenic, the scientists who argued that tobacco was perfectly healthy, or the southern lawyers who once defended the “segregation laws” and “Jim Crow.”

In 2006, I analyzed his book, “The Powers of War and Peace,” and criticized it extensively for sloppy scholarship. On Friday, I handed out a 6,700-word draft of this critique and asserted that in it, Yoo is
- wildly inaccurate in some places,
- deliberately misleading in others,
- using false premises,
- misstating facts,
- using fallacious arguments, reasoning from circumstance backward to principle,
- and misunderstanding a basic principle of the law: to protect the vulnerable and those of minority opinions or classes.

I wrote:

It is a huge mistake to think Yoo is alone in his arguments. As the introduction to “The Powers of War and Peace” makes clear, Yoo is only one in a constellation of professors, colleagues, students and active court justices who think as he does. He is not some lone wolf with wacky ideas but is influenced by and representative of a school of thinking that has come from the so-called “best law schools” of this country: Harvard, Yale, Berkeley. This is why, in my opinion, by their very presence here at Boalt, the faculty has an obligation to examine both the ideas advanced by this school of legal thinking, especially their colleague John Yoo, as well as the university system that produces and rewards this kind of reasoning.

The mainstream legal world may be uncomfortable with Yoo, but no one seems willing to recognize the damage he has caused, both in human suffering and in the destruction of the due process of law and traditional legal safeguards. In January, a long-awaited investigation by the Obama administration’s Justice Department cleared Yoo and his boss Jay Bybee from allegations of professional misconduct in the torture memos. If it had charged Yoo with misconduct, it probably would have forced Edley to reconsider his defense of Yoo’s position.

A number of lawsuits involving Yoo have been dismissed, and a German court rejected a lawsuit against a number of Bush administration officials, including Donald Rumsfeld and Yoo. The Center for Constitutional Rights is still pursuing an appeal of that dismissal.

In the meantime, Yoo has been defending his theories of a centralized presidency in new books and media interviews. Yoo has derided the protests against him with a what-do-you-expect in the “People’s Republic of Berkeley” type of attitude. He told the Los Angeles Times during a long interview on March 29: “I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism.”

He likes to make fun of the street scene on Telegraph Avenue, sometimes crowded with street vendors, homeless teenagers and grey-haired ex-hippies. “It’s like looking at the panoramic displays of troglodytes sitting around the campfire with their clubs. Here, it’s tie-dye and marijuana. It’s just like the 1960s, with the Vietnam War still to protest.”

I assume he wouldn’t include in this derision federal district judge Vaughn Walker, who recently rejected Yoo’s favorite theory, a “theory of unfettered executive-branch discretion” because it created an “obvious potential for abuse.”

On Friday, Dean Edley, noticeable in his regal red robe, was leading the procession toward the graduation ceremonies. When he crossed the street, Stephanie Tang, one of the organizers of the protest, called to him to wear an orange ribbon.

“I don’t need one,” he said and smiled vaguely.

If he had noticed the growing number of faculty and students wearing ribbons behind him, he might have reconsidered. The millstones are still grinding, Dean Edley. And they will grind for a long time to come.