Why Oh Why Can't Berkeley Have Better Law Professors?

Michiko Kakutani thinks that John Yoo is a shoddy and dishonest writer:

War by Other Means By John Yoo - Books - Review - New York Times: What Torture Is and Isn’t: A Hard-Liner’s Argument: By MICHIKO KAKUTANI: Published: October 31, 2006: In the tumultuous days and weeks after 9/11, a young lawyer in the Justice Department’s Office of Legal Counsel named John Yoo became a key architect of the Bush administration’s legal response to the terrorist threat and a strong advocate of its expansive view of presidential power. The controversial opinions he worked on would elicit charges that the administration was subverting the Constitution, tipping the balance of power among the three branches of government, trampling the civil rights of detainees and authorizing coercive interrogation.

Mr. Yoo worked on memos and opinions that determinedly attempted to redefine torture. He also argued that the terrorist attacks created “an emergency situation” in America, and that given this situation, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

Shortly after the terrorist attacks of Sept. 11, Mr. Yoo wrote a memorandum opinion, which declared that “the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.” And in January 2002, he was a co-author of a memo arguing that “customary international law has no binding legal effect on either the President or the military” and that “neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantánamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners.”

In his combative new book, “War by Other Means,” Mr. Yoo — who is now a professor at the University of California, Berkeley, School of Law — lays out the thinking behind the Bush White House’s legal maneuvers. While he makes many of the same arguments that other members of the administration have used to defend its aggressive post-9/11 policies, he is more candid than many of his colleagues about his fervent belief in unfettered executive power. And his book makes timely if often disturbing reading, given the Supreme Court’s recent Hamdan ruling (which repudiated the military tribunals created by the administration to put Guantánamo detainees on trial without due process) and Congress’s subsequent passage, in September, of a detainee treatment bill, which gives the president new power over terrorism suspects and deprives foreigners detained in United States military prisons of the right to challenge their imprisonment.

Mr. Yoo suggests in these pages that the war on terror is a new paradigm that calls for new tactics; that the judiciary should defer to the executive branch in wartime; and that those who quarrel with the Bush White House are soft on fighting terrorism. One of his favorite tactics in this book is to create a ridiculous caricature of administration critics’ views and then dismiss them. For instance, he writes: “A Geneva Convention POW camp is supposed to look like the World War II camps seen in movies like ‘Stalag 17’ or ‘The Great Escape.’ But because Gitmo does not look like this, critics automatically declare that detainees’ human rights are being violated.”

In this volume, Mr. Yoo argues that the Constitution grants the president “the leading role in foreign affairs,” and that the Authorization for Use of Military Force, passed by Congress a week after 9/11, gives the president broad powers to wage the war on terror the way he wants to. Indeed, Mr. Yoo says, “We wrote the law as broadly as we did” to “make sure there could be no claim in the future that the President was acting in the war on terrorism without congressional support.”

Major figures in Congress have said repeatedly that this law does not give the president such sweeping powers; Mr. Yoo, meanwhile, contends that the ambiguous wording covers everything from the implicit power “to detain enemy combatants” to the implicit authority “to carry out electronic surveillance to prevent further attacks.”

Mr. Yoo has not used his academic background in the legal aspects of war powers issues and executive authority to make a persuasive case here for the administration’s actions. Instead, he has written a book that reads like a combination of White House talking points and a partisan brief on presidential prerogatives — a book that is strewn with preposterous assertions, contorted reasoning and illogical conclusions. He writes that “because of our aggressive policies post 9/11, al Qaeda is no longer the threat it was.” He suggests that might makes right: “At this moment in world history the United States’ conduct should bear the most weight in defining the customs of war. Our defense budget is greater than the defense spending of the next fifteen nations combined.”

And he contends that President Bush’s decision to secretly authorize the National Security Agency to eavesdrop on Americans in search of evidence of terrorist activity without court-approved warrants “does not signal that we live under a dictator, or that the separation of powers has failed,” because Congress, which “has total control over funding and significant powers of oversight,” could simply decide to “do away with the NSA as a whole.”

Just as the administration cherry-picked intelligence to make the case that Saddam Hussein possessed weapons of mass destruction, so Mr. Yoo cherry-picks information in this volume. Of the Schlesinger report on the Abu Ghraib prison, Mr. Yoo says it found that the abuses there “resulted not from orders out of Washington, but from flagrant disregard of interrogation and detention rules by the guards.” He does not grapple with those portions of the report that found “there is both institutional and personal responsibility at higher levels.”

August 2002 memos worked on by Mr. Yoo addressed the question of what constituted torture and just what might lead to prosecution by the International Criminal Court. In this book he amplifies his views on this subject, quibbling over the meaning of phrases like “severe physical or mental pain or suffering” and “prolonged mental harm.”

In addition, he makes much of wording in the Convention Against Torture (ratified by the United States in 1994), that requires the criminalization of torture and also declares that parties “undertake to prevent ... other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture.” He uses these passages to argue that there is an important distinction to be made “between torture on the one hand, and harsh measures characterized as ‘cruel, inhuman, or degrading treatment’ on the other.”

Concerning a 2004 decision by the Justice Department to revise an earlier opinion (which had been widely condemned in Congress and by human rights groups as laying the groundwork for the abuses at Abu Ghraib), Mr. Yoo, intentionally or not, seems to buttress arguments made by critics of the administration, writing that it was an “exercise in political image-making” designed to help ease the confirmation of Alberto Gonzales as attorney general.

He adds that this 2004 opinion “included a footnote to say that all interrogation methods that earlier opinions had said were legal were still legal. In other words, the differences in the opinions were for appearances’ sake. In the real world of interrogation policy nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.”

Mr. Yoo is cavalierly dismissive in this book of critics of administration policy, shrugging off concerns about violations of civil rights and presidential overreaching. “Is the Bush administration using public fear to consolidate political power?” he asks. “If it is, it has only another two years to go, and new security policies generally last only as long as the emergency. Lincoln’s military courts and military justice did not last beyond the Civil War and Reconstruction. FDR’s internments ended after World War II. The President and Congress usually give up their emergency powers voluntarily, and if they don’t, courts step in.”

Never mind that there is no foreseeable end date to the war on terror. Never mind that the judiciary, which Mr. Yoo says in this passage can be counted on to curb any possible overstepping by the Bush White House, may have had its power to review the treatment of detainees sharply curtailed by Congress’s recent passage of the Military Commissions Act of 2006 — the same judiciary Mr. Yoo repeatedly berates in this tendentious book for “pushing into matters where it didn’t belong,” and for impinging upon the powers of the presidency, an office whose function he asserts is “to act forcefully and independently to repel serious threats to the nation.”

If I were Chancellor Birgeneau, I would be scrutinizing Berkeley Law School's tenure-vetting process very, very carefully right now. We have evidence that it doesn't work too well.