19 April 2008

Prosescute John Yoo, Worry About His Tenure Later . . .

I have said here before that, like other, more senior, members of the Bush Administration, including W himself, John Yoo should be tried as a war criminal. This evening, my friend Jack (who is visiting for few days) read to me this post from Brian Leiter which argues very persuasively that a commitment to academic freedom prevents UC Berkeley from revoking Yoo's tenure. I agree with Leiter on the main point regarding Yoo's tenure - indeed Jack and I had come to very similar conclusions in a conversation yesterday. Leiter's argument is thorough and nuanced.

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.

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Anonymous Anonymous said...

"Yoo espoused his theory of the unitary executive." Yoo's theory does not fit with prior American practice. It also may not be in accord with the Constitution.

"Yoo offered his advice re: the legality of torture in 'good faith.'" If the United States ratifies an International Treaty then that treaty has power and effect as the law of the land. It is the law. How does a novel theory of the "unitary executive" come to usurp the law?

The Nazi Gaultier's operated in "good faith." They believed what they were doing was right. Even if they did not so believe they were just "following orders." Neither of these defences: 1) good faith; 2) following orders; were accepted by the US in the Nuremberg prosecutions. If they had been accepted at Nuremberg there would have been no prosecutions. I am not familiar with international law but it strikes me that Nuremberg sets a precedent that cannot be wished away or ignored.

19 April, 2008 15:43  
Blogger Jim Johnson said...

Precisely. "I espouse racist policies in 'good faith' and have done so for a long time. Therefore, I am immune to prosecution for having rationalized policies that sent all those Xs to the camps" doesn't strike me as a compelling defense - legally or morally.

19 April, 2008 16:36  
Anonymous Anonymous said...

Check out the guest post regarding Woo and tenure on The Weekly Rader

22 April, 2008 00:21  

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