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THIS GUY IS A LAWYER?
John Yoo's ignorance of the law has long been a source of fascination for me. I remember him being on the Newshour in 2004 and complaining about Supreme Court Justices who didn't always rule the way he wanted them to. Yoo said, "If you're just switching back and forth all the time, if you're in the middle all the time, are you really being a judge?" In other words, the Justices should be deciding cases on ideology, rather than the law. I remember thinking at the time, "this guy is a law professor at Berkeley?"
Today, Yoo takes to the Wall Street Journal to offer his strange cocktail of deception and ignorance in support of the lawlessness he enabled:
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. A defendant's constitutional right to demand the government's files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets.This just isn't true. We've had laws on the books preventing defendants from using intelligence secrets to blackmail the government for years, it's called the Classified Information Procedures Act, and it allows the government to submit the relevant facts as evidence while protecting intelligence secrets. The prosecutor submits a redacted summary with the relevant information, and the judge rules whether the summary is sufficient to allow the accused to mount a defense.
"It’s not such a summary that it’s unchallengable," says Ken Gude, an associate director of international rights and responsibilities at the Center for American Progress. "It can be cumbersome and difficult, it’s not an easy thing to do, but you can’t have a system where you don’t allow the defendant to challenge the evidence used against them." Well you can, that's the system Yoo wants. It just won't be, by any standard, a fair and just system.
Moreover, Yoo's hostility to plea bargaining is bizarre. The point of a plea bargain, Goode adds, is to secure a conviction in exchange for information. John Walker Lindh was plea bargained. He's still locked up. Granted, Yoo believes that crushing a baby's testicles is a more appropriate way of extracting information, and that anything less is "requiring...that CIA interrogators be polite," which is how he describes Obama's executive order on interrogations. (It certainly does not do that.) Yoo is on equally shaky ground legally and empirically when it comes to torture, and the faulty legal reasoning that led to the Bush administration's lawlessness is never more clear than when Yoo pretends that certain laws exist when they don't, or makes up new laws where there are none.
-- A. Serwer
COMMENTS (12)
THIS GUY IS A LAWYER?
Not just a lawyer, but law school faculty.
Not just law school faculty, but Boalt Hall faculty.
Maybe he's really, really good at Torts or something.
Posted by: Davis X. Machina | January 29, 2009 2:51 PM
I'll try to remember to link back to that first paragraph ("This guy is a professor at Berkeley?") when I discuss John McWhorter's recent TNR piece next week (the one about low-income schools). I think the piece is quite remarkable, reflecting on the prof himself and on TNR. Absurd claims seem to be required when we write about low-income schools.
Posted by: bob somerby | January 29, 2009 4:58 PM
Also note that Yoo seems certain that the things Bush did are necessary to keep us safe and work effectively, which is a big step from what he professed he was doing when issuing those OLC opinions, "I was just telling the president what the law allowed him to do, not making policy."
This WSJ Op-Ed makes it sound like he wanted the law to be that way, whether it was or not, hmmm...
Posted by: Ugh | January 29, 2009 5:06 PM
Can't someone get him disbarred? That's probably the best (perhaps only) way to get UC to fire him.
Posted by: Rich | January 29, 2009 6:39 PM
Yoo is BEGGING to be prosecuted.
Posted by: dontcallmefrancis | January 29, 2009 7:23 PM
Yoo also argued a couple years ago that one reason we couldn't give detainees habeas corpus reviews was that it would be "too expensive."
Asshat.
Posted by: Ish | January 29, 2009 7:39 PM
They said "Torts", he heard "torture", and the rest, as they say, is history...
Sorry, couldn't resist.
Posted by: Bernard HP Gilroy | January 29, 2009 8:34 PM
Someone somewhere said “Any child inspired by Mr. Bush to become president needs to be watched very carefully.”
It takes a real leap of faith not to feel that way about Yoo’s students. Unless they’re planning a future in the International Criminal Court or studying him for Psych course work.
Posted by: cognomen | January 29, 2009 9:01 PM
I have read that yoo teaches Constitutional law and that he is the only professor at Berkeley in the area. That means that all students who want to do something that requires a course in Constitutional law need to take his course. If he isn't disbarred or fired (despite tenure), then he should be removed from that course. Tenure does not protect you from being assigned to other duties, only from being fired.
Posted by: Texas Aggie | January 29, 2009 9:13 PM
Yoo reminds me of one of those who ran POW camps on Japanese Islands in the South Pacific who thought beheading people was a good way to extract information but in reality merely intensified the opposition.
Teaching rather than practicing law...because he obviously doesn't know enough to practice law.
Posted by: bjobotts | January 29, 2009 10:04 PM
I have read that yoo teaches Constitutional law and that he is the only professor at Berkeley in the area.
This is not true. Yoo tends to teach specialized seminars in con law; the main courses in the field are taught by one of the other half dozen constitutional law scholars on the Berkeley faculty.
Posted by: mdw | January 29, 2009 10:54 PM
There simply is no such thing as "A defendant's constitutional right to demand the government's files." There is a very limited, very stingy constitutional right to exculpatory evidence in the government's files. There is a non-constitutional right to discovery of the Government's evidence, but this is also very stingy, in comparison to most states' discovery rules.
Speaking as a law professor, it's just incredible, absolutely appalling, mind-bogglingly comical that he doesn't know this.
Posted by: Kyron Huigens | January 30, 2009 11:46 AM