Prosescute John Yoo, Worry About His Tenure Later . . .
Leiter goes too far, though, in suggesting that Yoo is not susceptible to criminal prosecution since his defense lawyers might claim that Yoo offered his advice re: the legality of torture in 'good faith.' Leiter suggests that the defense could argue that such good faith is evidenced by the fact that both before and after his government service Yoo espoused his theory of the unitary executive which provides the 'intellectual' framework for his torture memos. I think Leiter is wrong because a 'good faith' defense of this sort likely would preclude prosecuting virtually any lawyer who was driven (as Yoo very arguably is) by deep, unquestioned ideological convictions. It may well be difficult to prosecute Yoo successfully in the face of a 'good faith' defense, but that hardly is a good enough reason to let him get away with rationalizing deadly policy. In other words, lots of prosecutions are difficult and pursuing Yoo surely is worth a try. Moreover, a trial would arguably do two useful things. First it would hold Yoo up to well-deserved, widespread ridicule as his lawyers sought to defend him in public against charges that he acted illegally and culpably on the basis of ideological delusion. (Notice that I do not think Yoo should be prosecuted for merely thinking or even espousing ideas. He should be prosecuted for being an integral part of a cabal of government officials that systematically dreamt up, justified, and implemented a policy of torture. Simply put, Condi, George, Colin, Dick, Don and John might very well not have been sitting in the "situation room" detailing the way the CIA could torture prisoners absent John Yoo's rationalizations.) Second, any such trial would almost certainly provide solid grounds to pursue related prosecutions for the higher-ups for whom Yoo was simply a toady.
If he were convicted, of course, Berkeley could revoke Yoo's tenure on grounds justified by its own guidelines on academic freedom. In the meantime, it seems to me that academics should drop their campaign to have Yoo's tenure revoked. But they should ridicule and ostracize him in all the ways he deserves for propagating his idiotic theories, that when implemented, predictably had arguably illegal and surely immoral consequences.