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Scholar Calmly Takes Heat for His Memos on Torture

May 16, 2005|Maria L. La Ganga | Times Staff Writer

BERKELEY — John Yoo doesn't come across like a war criminal, though that's one of the more flamboyant charges leveled against the smooth young law professor from UC Berkeley's storied Boalt Hall.

With his even tones and calm demeanor, his natty suits and warm charm, the 37-year-old constitutional scholar is the embodiment of "reasonable," not the first person you'd expect to find at the heart of an international fight over terrorism, torture and the American way.

But while working for the Department of Justice after the Sept. 11 terrorist attacks, Yoo helped write a series of legal memos redefining torture and advising President Bush that the Geneva Convention does not apply to members of Al Qaeda and the Taliban.

Sen. Edward M. Kennedy (D-Mass.) demanded from the Senate floor last month that Yoo and other civilian officials be held accountable for their part in what he called the "torture scandal" over treatment of Iraqi detainees by American soldiers at Abu Ghraib prison in Iraq.

Legal scholar Scott Horton, president of the New York-based International League for Human Rights, called last month for Yoo and others to be investigated as war criminals for their part in drafting the memos.

And in a lengthy analysis to be published in the Columbia Law Review this fall, Jeremy Waldron, an author, scholar and Yoo's former colleague at the UC Berkeley School of Law, said that the "defense of torture" by Yoo and other prominent lawyers had caused "dishonor for our profession."

A year after the abuses at Abu Ghraib came to light, nearly a year after the torture memos were leaked, debate over how the U.S. government should treat its prisoners shows no sign of abating.

"If you read the history of philosophy from the Greeks to the present day, the question of when should we be willing to do something terrible in pursuit of some social good is always posed," said Martha Nussbaum, professor of philosophy and law at the University of Chicago. "It would surprise me very much that it would go away."

But as Yoo defends the memos in debates across the country, a measured messenger for some of the Bush administration's most controversial policies, he said he is surprised that "the issue has staying power."

Maybe, he said, it's because the fight against terrorism shows no sign of an end. Maybe it's because the government still does not know how best to battle the nation's new enemies.

"If [Democrat John F.] Kerry had won the presidency," Yoo said in a recent interview, "we'd still be trying to figure out what policies work against Al Qaeda and which ones to adopt."

The memos about the Geneva Convention and torture are probably the two most controversial documents Yoo worked on with a team of other lawyers when he was a deputy assistant attorney general with the Office of Legal Counsel from 2001 to 2003. The former bears Yoo's name; the latter, that of then-Assistant Atty. Gen. Jay S. Bybee, who now sits on the U.S. 9th Circuit Court of Appeals.

Some human rights advocates argue that the administration commissioned the memos to provide legal cover for increasingly coercive interrogation techniques used against suspected terrorists. Yoo vehemently denies such accusations. The administration has downplayed the memos' import and said that Bush never embraced the views of the lawyers who wrote them.

At the Council on Foreign Relations and West Point, at Columbia Law School and at his own leafy, liberal campus, Yoo argues that the world as America knew it ended on Sept. 11, 2001, and that the rules of war have changed because the enemy has changed.

"Al Qaeda as a non-state terror organization is not covered" by laws, such as the Geneva Convention, that are honored when the United States fights a bona fide state, Yoo argued earlier this month during a debate at Berkeley. Thus, "our leaders have the option to decide what system ought to apply."

The debate was a two-on-one bruising in front of an audience that politely applauded Yoo while cheering his detractors, an event in which a law student dressed as an Iraqi torture victim greeted spectators with a sign that read, "War criminal John Yoo facilitated torture: He belongs in a prison not a law school."

But a funny thing happened near the end of the forum. Tom Farer, dean of the Graduate School of International Studies at the University of Denver, was deep into a verbal salvo when he exhausted his allotted time but not his argument. Yoo gave up one of his own precious minutes so that Farer could continue pummeling him.

"John cedes a minute," Farer said with a smile before launching back into his attack. "John is a mensch."

Farer would find little argument, at least on that point. Yoo inspires deep loyalty in friends, mute collegiality in many fellow scholars ("You know, I'd really rather not talk about him") and an awkward mixture of kindness and dread in some of his most vocal critics.

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