The day after the NLG issued its press release, Boalt Hall Dean
Christopher Edley, Jr. posted a statement on the Boalt Hall website,
responding to "the New York Times (editorial April 4), the National
Lawyers' Guild, and hundreds of individuals from around the world" who
had criticized or questioned Yoo's continuing employment at Boalt Hall.
Dean
Edley cited the University of California's Academic Personnel Manual
sec. 015, which lists under "Types of unacceptable conduct: ...
Commission of a criminal act which has led to conviction in a court of
law and which clearly demonstrates unfitness to continue as a member of
the faculty." Edley said he was not convinced Yoo had engaged in "clear
professional misconduct - that is, some breach of the professional
ethics applicable to a government attorney - material to Professor
Yoo's academic position." Edley was likewise not convinced "the writing
of the memoranda, and [Yoo's] related conduct, violate[d] a criminal or
comparable statute."
Edley felt Yoo's conduct was not "morally
equivalent to that of his nominal clients, Secretary Rumsfeld, et al.,
or comparable to the conduct of interrogators distant in time, rank,
and place." Edley wrote, "Yes, it does matter that Yoo was an adviser,
but President Bush and his national security appointees were the
deciders."
Indeed, ABC News reported last week that Dick Cheney,
Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John
Ashcroft met in the White House and micromanaged the torture of
terrorism suspects by approving specific torture techniques such as
waterboarding. George W. Bush, the decider-in-chief, admitted, "yes,
I'm aware our national security team met on this issue. And I approved."
These
top U.S. officials are liable for war crimes under the U.S. War Crimes
Act, and for violation of the Convention Against Torture and the Geneva
Conventions, which are all part of U.S. law. They ordered the torture
which was carried out by the interrogators.
But John Yoo and the
other Justice Department lawyers, including David Addington, Jay Bybee,
William Haynes and Alberto Gonzales, are also liable for the same
offenses. They were an integral part of a criminal conspiracy to
violate U.S. laws. In U.S. v. Altstoetter, Nazi lawyers were convicted
of war crimes and crimes against humanity for advising Hitler on how to
"legally" disappear political suspects to special detention camps. The
United States charged that since they were lawyers, "not farmers or
factory workers," they should have known their technical justifications
for circumventing the Hague and Geneva Conventions were illegal.
The
cases of Altstoetter and those of the Bush lawyers share common
aspects. Both dealt with people detained during wartime who were not
POWs; in both, it was reasonably foreseeable that the advice they gave
would result in great physical or mental harm or death to many
detainees; and in both, the advice was legally erroneous. More than 108
people have died in U.S. detention since 9/11, many from torture. And
the Department of Justice's Office of Legal Counsel later withdrew the
memoranda, an admission that the advice in them was defective.
Furthermore,
the Bush lawyers have engaged in ethical violations which should result
in their disbarment. As New York University School of Law Professor
Stephen Gillers wrote in The Nation, H. Marshall Jarrett, counsel for
the Justice Department's Office of Professional Responsibility, who is
examining the legal advice these lawyers provided, "should find that
this work is not 'consistent with the professional standards that apply
to Department of Justice attorneys.'"
Even Dean Edley appears to
recognize that the case of John Yoo is not a simple issue of academic
freedom, such as "merely some professor vigorously expounding
controversial and even extreme views."
As CCR President Michael
Ratner wrote in the forthcoming book, The Trial of Donald Rumsfeld,
"Had these various opinions been written as a law school or academic
exercise, they could be merely condemned and their authors would fail
their class, but they would not be held criminally accountable. But
they were not an academic exercise. They were written by high-level
attorneys [such as John Yoo] in a context where the opinions
represented the governing law and were to be employed by the President
in setting detainee policy. This was more than bad lawyering; this was
aiding and abetting their clients’ violation of the law by justifying
the commission of a crime using false legal rhetoric."
It is
inconceivable that Attorney General Michael Mukasey, who has served as
a rubber stamp for Bush's illegal policies, will bring any of these
leaders or lawyers to justice. There is a chance that a future attorney
general will do so. Barack Obama has pledged to have his Justice
Department and Attorney General "immediately review the information
that's already there and to find out are there inquiries that need to
be pursued . . . if crimes have been committed, they should be
investigated . . . Now, if I found out that there were high officials
who knowingly, consciously broke existing laws, engaged in coverups of
those crimes with knowledge forefront, then I think a basic principle
of our Constitution is nobody above the law." Congress should repeal
the provision of the Military Commissions Act that would give these
deciders and lawyers immunity from prosecution for torture and other
mistreatment committed from September 11, 2001 to December 30, 2005.
In
addition to criminal prosecutions, disbarments, and the dismissal of
John Yoo from the Boalt Hall faculty, Jay Bybee, who was rewarded for
his illegal advice with a federal judgeship, should be removed from the
bench by impeachment.
It is time for the impunity enjoyed by the Bush administration to come to an end.
Marjorie
Cohn is a professor at Thomas Jefferson School of Law and the President
of the National Lawyers Guild. She is the author of "Cowboy Republic:
Six Ways the Bush Gang Has Defied the Law." Her articles are archived
at www.marjoriecohn.com.
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