A fellow UC Irvine professor is reporting that School of Law dean Erwin Chemerinsky believes a fellow University of California law professor should be prosecuted for conspiring to illegally torture enemy combatants of the United States. Confused? Yoo shouldn't be!
While John Yoo was deputy assistant U.S. attorney general in the Office of Legal Counsel for George W. Bush's Justice Department, the UC Berkeley law professor co-authored the infamous "torture memo" of 2002 that cleared the way for either, according to your view, illegal torture or legal "enhanced interrogation."
In the light of the recent Senate Intelligence Committee report that cited Dubya administration violations of the Federal Torture Act, UC Irvine history professor Jon Wiener interviewed Chemerinsky, a noted constitutional law expert, for The Nation.
(Wonder if my long-ago profile of Wiener is still online? Why, yes it is … Bigger Than the Beatles: UC Irvine professor Jon Wiener's fight for John Lennon's FBI file reveals something ugly about democracy in America.)
"Yoo's memo directly led to the torture policy that resulted," Chemerinsky tells Wiener, citing the evidence unearthed in Jane Mayer's book The Dark Side, which found that "cruel, inhumane, and degrading treatment of detainees could be authorized, with few restrictions."
"That's being part of a conspiracy to violate a federal statute," Chemerinsky continues. "Someone isn't excused from criminal liability just because they work for the federal government."
The Federal Torture Act specifically includes conspiracy, stating that "a person who conspires to commit an offense under this section shall be subject to the same penalties … as the penalties prescribed for the offense." In the case of Yoo, Wiener notes, the law professor could be sentenced to up to 20 years in prison if found guilty.
"I think he should be," Chemerinsky tells Wiener. "All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage? How else do we deter it in the future–except by criminal prosecutions?"
Yoo is not interviewed in Wiener's piece, but he likely would have raised the same bullet points he did in a civilized debate in April 2009 at Chapman University, where he was a visiting scholar.
The debate in a packed Memorial Hall featured Yoo and then-law school dean John C. Eastman defending the contentious memo while Chapman law professors and former federal prosecutors Katherine Darmer and Lawrence Rosenthal argued the opposite.
Explaining that 9/11 forced those who'd joined the Bush administration to make decisions they never wanted to make, Yoo said that detainees had to be interrogated, techniques had to be cleared legally and that the resulting memos were legal interpretations, not policy. In other words, he absolved himself of having implemented policy, explaining he only provided an opinion.
Eastman seconded that view and pointed to a subsequent memo that came out during the early Obama administration that claimed information gleaned from detainee interrogations prevented attacks on the United States.
But the opposing debaters sounded more like Chemerinsky. Darmer said lawyers are supposed to follow the law, and if one does not like a law, it is up to policymakers to change it. "The memos ignore the law," she said. "… As it stands, torture is illegal."
Rosenthal opined that Yoo gave Bush bad advice: Instead of saying it is OK for the president to break the law, "every once in awhile it's worth reading the Constitution."