NLGSF Calls on UC Berkeley to Investigate Professor John Yoo

John Yoo, the key author of Justice Department memos authorizing and providing cover for the illegal torture of U.S. military detainees, is presently a law professor at the University of California, Berkeley, School of Law (Boalt Hall). Support our letter to UC Berkeley Chancellor Robert Birgeneau, urging him to investigate whether Yoo's conduct violated the Faculty Code of Conduct.

Text of letter:

Office of the Chancellor
200 California Hall # 1500
University of California
Berkeley, CA 94720-1500

Chancellor Robert Birgeneau,

As you know, John Choon Yoo is a professor of law at the University of California, Berkeley, School of Law (Boalt Hall). As an organization of attorneys, law students and other legal workers, we hereby urge you to initiate an investigation into whether Professor Yoo's "outside professional conduct," as an attorney of the U.S. Justice Department's Office of Legal Counsel, violated the Faculty Code of Conduct as set out in the University of California Academic Personnel Manual (Section 015).

Professor Yoo was the principal author for several memoranda that provided legal cover for officials in the Bush Administration, CIA and Pentagon to ignore domestic and international laws that prohibit torture in interrogating military detainees. This outside professional conduct does not involve academic freedom. Rather, it amounts to professional misconduct, providing not sound legal advice but the illusion of legality to patently immoral and actually illegal activities, i.e., the torture and murder of military detainees.

Yoo's memos narrowed the definition of torture, in contravention to the U.S. ratified Convention Against Torture, so that "a victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result." They further sought to justify torture based on the circumstances and the power of the executive branch in times of war. His action justified policies that violate the jus cogens norm prohibiting torture as detailed in an NLG White Paper On The Law of Torture and Holding Accountable Those Who Are Complicit in Approving Torture of Persons in U.S. Custody:

The prohibition of torture is a jus cogens norm (these are principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties). The United States has consistently prohibited the use of torture through its Constitution, laws, executive statements and judicial decisions and by ratifying international treaties that prohibit it. The prohibition against torture applies to all persons in U.S. custody in times of peace, armed conflict, or state of emergency. In other words, the prohibition is absolute. However, the legal memoranda drafted by government lawyers purposely or recklessly misconstrued and/or ignored jus cogens, customary international law, and various U.S. treaty obligations in order to justify the unjustifiable, claiming that clearly unlawful interrogation "techniques" were lawful.

Yoo wrote these memoranda, not as a law professor, but while a senior attorney in the Office of Legal Counsel from 2001 to 2003. Subsequently, the Justice Department has withdrawn these memoranda, acknowledging their poor reasoning and untenable legal conclusions. Before they were withdrawn, however, Yoo's written opinions were treated as having the force of law by the executive branch of the U.S. government.

While Boalt Hall Dean Chrisopher Edley has publicly stated that the University may not discipline Yoo until he has been convicted of illegal conduct, we urge against such a narrow interpretation of the UC Academic Personnel Manual's Faculty Code of Conduct, which specifically identifies outside professional conduct that can lead to formal investigation. While it includes violations of the law resulting in convictions, the list of unacceptable faculty conduct it enumerates is specifically noted as "not exhaustive."

Investigating whether Yoo violated the UC Faculty Code of Conduct is amply justified by the limited facts that are publicly available, i.e., that Yoo authored legal memoranda justifying illegal torture techniques and did so with such one-sided opinion that they failed professional standards of lawyerly competence, as well as the heightened ethical duties of certain government attorneys. He did not exercise academic freedom of speech but rather misstated the law in order to provide legal cover to immoral and abhorrent acts, i.e., the torture and murder of prisoners of war.

Moreover, Yoo's outside professional conduct should be of special concern to the University of California because his misconduct implicates the very subject he teaches as a professor at Boalt Hall. Whenever a faculty member engages in professional conduct that causes the kind of harm or attempts to shield the type of harm caused by the Yoo memos, it raises serious concerns that the University must address by formal investigation, particularly when that harm was clearly prohibited by law, regardless of whether a conviction has yet resulted. Indeed, until the current executive administration leaves office, no prosecution will likely occur, and even after a new administration takes office, prosecution and conviction will necessarily take many months, likely years, if it occurs at all.

Before that date, the University of California should step forward with strong moral leadership, granting Yoo the due process that his memos denied many others at Abu Ghraib, Guantanamo Bay and elsewhere, by instituting a formal investigation and implementing whatever discipline the investigation justifies.

Yoo's misconduct occurred from a position of power and encouraged harm to relatively powerless individuals who were detained and held in military custody. Moreover, more than 108 people have died in U.S. detention since 9/11, many from torture, and many are still detained today facing unknown abuse. While many will object to even an investigation of possible misconduct unbefitting a UC faculty member, these objections are spurious and wrongly based on a presumption of impunity for the Bush Administration. History, international human rights and domestic law militate otherwise. Investigating John Yoo is not about potentially chilling academic speech but is rather a necessary exercise for a university that truly respects the rule of law.

As the Bush administration faces its final days, now is the time to begin understanding the severity and scope of the government's misconduct. State and local government institutions, like the University of California, have an important role to play in this process of illumination. UC Berkeley has a particular tradition of bringing light to bear on the most difficult problems facing a truly free and democratic society.

We urge you to take action. Investigate John Yoo's outside professional conduct, and act on the investigation's findings to deliver the faculty discipline warranted by the investigation.

Carlos Villarreal
Executive Director


Sharon Adams
Adams Law Office
UC Davis-King Hall School of Law Alum

Katherine Barnes
Alumnus, College of Engineering BS in EECS received 1991

Judith Berlowitz
UCB Alum - Ph.D 1976
Bay Area Women in Black

Jamie Brooks, Esq.

Ann Fagan Ginger
LL.M., Boalt Hall 1960

Marc-Tizoc González
Boalt Hall Class of 2005
Staff Attorney, Alameda County Homeless Action Center (for identification purposes only)

Luke Hiken
UC Berkeley 1965
Boalt Hall Class of 1968

Steven K. Hon

Jean K. Hyams
Boalt Hall Alum

Sushil Jacob
Berkeley Law Class of 2011

Aliya Karmali
USF School of Law Class of 2009

Mary Beth Kaufman
Boalt Hall Class of 2003

Tanya Koshy
Berkeley Law Class of 2010

Alexander L. Lee
Boalt Hall Alum
Interim Director, TGI Justice Project (for identification purposes only)

Eric Leenson
Progressive Asset Management
UC Berkeley MBA' 86

Lorraine Leete
Berkeley Law 2L

Hadley Louden
BA UC Berkeley
JD UC Hastings College of the Law

Anamaria Loya
Boalt Hall Class of 1990
La Raza Centro Legal (for identification purposes only)

Suzanne Martindale
Berkeley Law Class of 2010
Co-Chair, Executive Planning Committee, NLG Boalt Chapter

Daniel M. Mayfield
Carpenter & Mayfield
University of California Graduate

Meiklejohn Civil Liberties Institute

Brandon Rees
Berkeley Law 3L

Edward A. "Ted" Riedinger
MLIS (Berkeley)
Professor and Head, Ohio State University Latin American Library Collection

David Salniker
Boalt Hall Class of 1966

Marc Sapir MD, MPH
UC Berkeley Alum

Renee Saucedo
Boalt Hall Class of 1990
La Raza Centro Legal (for identification purposes only)

Dan Siegel
Boalt Hall Alum
Siegel & Yee

Jessica Ramey Stender
Berkeley Law Class of 2009
NLGSF Student Vice President, Co-Chair Boalt NLG Chapter

UC Berkeley School of Law (Boalt) NLG Chapter

Anne Butterfield Weills

The World Can't Wait - Drive Out the Bush Regime!