December 5, 2008
Con Law Prof John Yoo- controversies continue
According to an article in the San Francisco Chronicle, the Berkeley City Council is considering a resolution that John Yoo, Berkeley School of Law (Boalt Hall) law professor, be charged with war crimes and that students at the law school not be required to take a class from him. The ABA Journal has the story here.
Yoo has been the subject of controversy for his role in the so-called "torture memos" from the White House in 2001-2003. The matter continues to be under investigation. According to a piece in The Public Record:
When these probes are complete it will likely spur the incoming administration of President-Elect Barack Obama to implement widespread reforms at the DOJ and the way interrogations against suspected terrorists are conducted by CIA and the military, said two people working on Obama’s transition team. While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.
The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.
Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.
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