A Drop in Quality Law School Instruction at UC Berkeley? Yoo Bet!

The recently revealed March 2003 memoranda written by John Yoo while working for David Addington in the White House Office of legal Counsel [OLC] cast a shadow on the credibility of the University of California [Berkeley] Law School. The caliber of Yoo’s legal acumen, judgment and ethics, as demonstrated by his drafting of these controversial legal opinions, would not qualify a typical “politically unconnected” lawyer for a job as paralegal at any respectable law firm. Yet John Yoo enjoys the prestige and remuneration as a professor at the UC Berkeley School of Law.

Consider the consensus review of the quality of the legal opinion Yoo gave the Bush Administration regarding the use of “aggressive interrogation” tactics, which have been proven officially sanctioned torture of prisoners by US military agents. The Yoo memorandum, later recanted by the OLC as “unreliable,” established the standard approved at the White House and Cabinet level used by the CIA and Pentagon for disregarding virtually every previously established treaty and legal standard barring human rights violations in the name of purportedly fighting global terrorism. In the words of Dan Froomkin, author of The Washington Post's "White House Briefing" blog, Yoo’s 81 page memo is "a historic document ... the ultimate expression of Cheney's belief that anything the president or his designates do - no matter how illegal, barbaric or un-American - is justifiable in the name of national self-defense... It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.”

This is the memo shown to Gen, Geoffrey Miller before he was sent from the Guantanamo Bay Prison Camp to Abu Ghraib with orders to take control of the prison from Gen. Janis Karpinski and “GITMO-ize” [as he referred to it] that facility. There is no clear evidence of prisoner abuse approaching the magnitude exposed in the internationally embarrassing Abu Ghraib scandal prior to Miller’s arrival. Thus, the argument that the torture at Abu Ghraib was a product of renegade subordinates is manifestly false. The violations of international standards of human rights, rising to the level of potential war crimes [as evidenced by the charges the Bush Administration leveled against its subordinates in retaliation for seeking to place the blame at higher levels], arose directly from orders and approved conduct by officials at the Pentagon and White House.

Yoo’s unsound thinking and incompetent reasoning extends further. A footnote in the March 2003 memo reveals a second John Yoo memorandum that directly undermines the Fourth Amendment to the US Constitution, the right of the people to be secure against unreasonable searches and seizures. That still classified memorandum, titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States," reasons that the Fourth Amendment does not apply to military operations authorized by the President on American soil against US citizens as long as the President contends that the actions of the military are to protect national security by fighting global terrorism. This reasoning is not only vague and illogical, it directly contravenes many decades of precedent constraining the operation of the military and the CIA within the US borders and against US citizens. The list of dictators and despots using national military forces against citizens of their countries is long and disgusting. These are the types of abuses by King George of England that sparked the American Rebellion and led to the founding of the United States as an independent nation based upon a rule of law and due process guarantees. Yet John Yoo sought to invest George W. Bush with authority to enter that pantheon of international despots.

If Yoo was simply a political zealot willing to offer up any opinion sought by his superiors, Addington and Cheney, then his personal ethical standards and adherence to his oath upon entering the Bar [Cannon of Ethics requires independent judgment and advice],suggest that Yoo lacks the judgment and moral fiber to participate in the formation and instruction of new lawyers. On the other hand, if Yoo actually believes that his opinions were sound and based upon his best legal reasoning, then he needs to enroll himself in the UC Berkeley Law School to obtain a refresher course on the principles of the rule of law and the US Constitution. In any event, the Administration of the UC Berkeley Law School has shown an astounding lack of judgment and integrity in exposing its students to John Yoo as a representative of legal scholarship and experience. This is not simply a question of a politically controversial figure being appointed to a high profile post. Under any political stripe, Yoo’s work would be considered second or third rate legal analysis at best, and more accurately a case of incompetence.

Yoo just happens to be Asian and it may be that the UC was searching for any high profile professor of color in light of the curtailment of recruiting students of color after the Bakke decision. If so, the decision to hire Yoo is doubly wrong. The students who displaced Bakke were demonstrably qualified, but did not score as high as Bakke on standardized admissions testing criteria. Hiring John Yoo because of his race when he is manifestly incompetent and less qualified than many other experienced law professors and lawyers is precisely the evil that Bakke purported to extinguish. This, however, is more likely a case of political cronyism. Nevertheless, Yoo’s appointment has done more damage to the integrity of the University of California Law School than any potential damage that affirmative action could have wrought before the Bakke case