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Scholar Calmly Takes Heat for His Memos on Torture

Times Staff Writer

John Yoo doesn’t come across like a war criminal, though that’s one of the more flamboyant charges leveled against the smooth young law professor from UC Berkeley’s storied Boalt Hall.

With his even tones and calm demeanor, his natty suits and warm charm, the 37-year-old constitutional scholar is the embodiment of “reasonable,” not the first person you’d expect to find at the heart of an international fight over terrorism, torture and the American way.

But while working for the Department of Justice after the Sept. 11 terrorist attacks, Yoo helped write a series of legal memos redefining torture and advising President Bush that the Geneva Convention does not apply to members of Al Qaeda and the Taliban.

Sen. Edward M. Kennedy (D-Mass.) demanded from the Senate floor last month that Yoo and other civilian officials be held accountable for their part in what he called the “torture scandal” over treatment of Iraqi detainees by American soldiers at Abu Ghraib prison in Iraq.

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Legal scholar Scott Horton, president of the New York-based International League for Human Rights, called last month for Yoo and others to be investigated as war criminals for their part in drafting the memos.

And in a lengthy analysis to be published in the Columbia Law Review this fall, Jeremy Waldron, an author, scholar and Yoo’s former colleague at the UC Berkeley School of Law, said that the “defense of torture” by Yoo and other prominent lawyers had caused “dishonor for our profession.”

A year after the abuses at Abu Ghraib came to light, nearly a year after the torture memos were leaked, debate over how the U.S. government should treat its prisoners shows no sign of abating.

“If you read the history of philosophy from the Greeks to the present day, the question of when should we be willing to do something terrible in pursuit of some social good is always posed,” said Martha Nussbaum, professor of philosophy and law at the University of Chicago. “It would surprise me very much that it would go away.”

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But as Yoo defends the memos in debates across the country, a measured messenger for some of the Bush administration’s most controversial policies, he said he is surprised that “the issue has staying power.”

Maybe, he said, it’s because the fight against terrorism shows no sign of an end. Maybe it’s because the government still does not know how best to battle the nation’s new enemies.

“If [Democrat John F.] Kerry had won the presidency,” Yoo said in a recent interview, “we’d still be trying to figure out what policies work against Al Qaeda and which ones to adopt.”

The memos about the Geneva Convention and torture are probably the two most controversial documents Yoo worked on with a team of other lawyers when he was a deputy assistant attorney general with the Office of Legal Counsel from 2001 to 2003. The former bears Yoo’s name; the latter, that of then-Assistant Atty. Gen. Jay S. Bybee, who now sits on the U.S. 9th Circuit Court of Appeals.

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Some human rights advocates argue that the administration commissioned the memos to provide legal cover for increasingly coercive interrogation techniques used against suspected terrorists. Yoo vehemently denies such accusations. The administration has downplayed the memos’ import and said that Bush never embraced the views of the lawyers who wrote them.

At the Council on Foreign Relations and West Point, at Columbia Law School and at his own leafy, liberal campus, Yoo argues that the world as America knew it ended on Sept. 11, 2001, and that the rules of war have changed because the enemy has changed.

“Al Qaeda as a non-state terror organization is not covered” by laws, such as the Geneva Convention, that are honored when the United States fights a bona fide state, Yoo argued earlier this month during a debate at Berkeley. Thus, “our leaders have the option to decide what system ought to apply.”

The debate was a two-on-one bruising in front of an audience that politely applauded Yoo while cheering his detractors, an event in which a law student dressed as an Iraqi torture victim greeted spectators with a sign that read, “War criminal John Yoo facilitated torture: He belongs in a prison not a law school.”

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But a funny thing happened near the end of the forum. Tom Farer, dean of the Graduate School of International Studies at the University of Denver, was deep into a verbal salvo when he exhausted his allotted time but not his argument. Yoo gave up one of his own precious minutes so that Farer could continue pummeling him.

“John cedes a minute,” Farer said with a smile before launching back into his attack. “John is a mensch.”

Farer would find little argument, at least on that point. Yoo inspires deep loyalty in friends, mute collegiality in many fellow scholars (“You know, I’d really rather not talk about him”) and an awkward mixture of kindness and dread in some of his most vocal critics.

And although Boalt students circulated a petition last year demanding that Yoo recant his positions or resign, he also has charmed many of his liberal pupils with a ready classroom wit. Others have been disappointed after signing up for one of his courses so they could hear what a fire-breathing conservative actually sounds like only to find a mild-mannered professor at the lectern, accessible and friendly.

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“A lot of the concern is that people think he’s dead wrong,” said Ralph Steinhardt, professor of law and international affairs at George Washington University. “But you have to understand, from a personal standpoint, he’s a nice guy, has a good sense of humor, dresses nicely and is as smart as the day is long.”

Naomi Roht-Arriaza, a professor of law and international human rights at UC Hastings College of the Law, said she “substantively disagrees” with Yoo’s analysis of the Geneva Convention.

She also disagrees with a memo that he co-wrote redefining torture and reinterpreting laws against it. The memo argued that interrogation methods qualify as physical torture only if they inflict pain “of an intensity akin to that which accompanies serious physical injury such as death or organ failure.”

“The reason why it was so upsetting to many of us was that what was presented as mainstream opinion [in the memos] was very far from mainstream opinion,” Roht-Arriaza said. On the other hand, Yoo “comes off as very soft-spoken and very reasonable.... No horn. No tail.”

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A Korean immigrant who came to this country with his parents when he was 3 months old, Yoo has been a prolific writer of journalism and scholarship since his undergraduate days on the Harvard Crimson. He is a regular contributor to the opinion pages of major newspapers, including the Los Angeles Times, New York Times and Wall Street Journal.

Yoo began teaching constitutional and international law at UC Berkeley in 1993. But he has spent many of the subsequent years bouncing back and forth between academia and government. Shortly after Yoo took the Berkeley job, Supreme Court Justice Clarence Thomas tapped him for a clerkship.

When his clerkship with Thomas ended, he headed to the U.S. Senate Committee on the Judiciary, where he served as general counsel and helped Sen. Orrin G. Hatch (R-Utah) with his speeches. Hatch describes Yoo as “a terrific human being.” Yoo calls Hatch “a genuine softie.”

Yoo completed a public service trifecta -- working in all three branches of government -- with a stint in the Office of Legal Counsel, part of the Department of Justice overseen by then-Atty. Gen. John Ashcroft, before returning to Boalt Hall last year.

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It was there in the uncertain months after Sept. 11 that Yoo worked on the memos that transformed him from a rising star in conservative legal circles to a lightning rod for international controversy.

Studying law at Yale University, Yoo had specialized in “two areas that interested me and not others”: war powers and the original understanding of the role of judges. “Part of the reason you pick ones like that when you’re starting out is [that] they’re not crowded with other scholars,” Yoo said.

But those choices put him at the center of some of the major issues of the new millennium. Franklin Zimring, a fellow law professor at Boalt Hall, said, “At the moment, John’s Washington career probably merits two footnotes in American history.... For those of my colleagues who voted for [Democrat George] McGovern, which of the two they’d consider most problematic would be hard to identify.”

The first, Zimring said, was the 2000 presidential election stalemate. Shortly after the legal impasse began, Yoo wrote op-ed articles in favor of Supreme Court intervention. Yoo said that it would be a one-time action that would appropriately end a “bizarre” dilemma without “federalizing a whole area of life.”

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The second? The torture memos, which were reported for the first time in Newsweek last May, causing a fast and furious debate throughout the country, in the legal profession and on Yoo’s campus.

In addition to the Boalt Hall petition, many law students and their family members wore armbands at graduation protesting Yoo’s writings as deputy assistant attorney general. A month later, anti-Yoo demonstrators marched in downtown Berkeley.

Another campus petition came to his defense, charging that the furor over the memos was an assault on Yoo’s academic freedom.

Yoo was asked to speak in February at UC Irvine as part of the Chancellor’s Distinguished Fellow Series. Nearly 500 people signed a yet another petition demanding that Chancellor Ralph Cicerone withdraw his invitation and “stand up for justice and the rule of law in the United States and around the world.”

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A police escort whisked Yoo out of the Irvine engagement. Later that week, he was a no-show at a Berkeley debate on the memos because campus police had warned him of concerns about security.

“I’d never received a call from a police officer at Berkeley before,” Yoo said. “I didn’t want my speaking at an event to lead to anything unfortunate happening to someone.”

Many legal scholars and human rights activists -- along with Berkeley students -- draw a straight line linking the memos and alleged prisoner abuses in Iraq and Afghanistan and at Guantanamo. Yoo argues that they do not understand how government really works.

“It’s a stretch to say that a very limited, tightly held memo somehow translated into orders that soldiers on the ground violated human rights,” Yoo said. “That’s the difference between law and policy.”

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To his critics, such an argument is disingenuous, but Yoo continues to defend the memos because he feels “some sense of obligation to explain to the public why government reached some of the conclusions it did.”

“No one goes into government wanting to address these kinds of questions,” he said. “But we were attacked on Sept. 11 with devastating results. Our government has to think about these things in order to protect the country.”

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(BEGIN TEXT OF INFOBOX)

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Redefining torture after Sept. 11, 2001

John Yoo helped Justice Department attorneys write a series of legal opinions that came to be known as the torture memos. The opinions helped guide the Bush administration in its treatment of detainees. Some memos bear Yoo’s name. Others were signed by his superiors. Some excerpts:

Sept. 25, 2001: “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 Sept. 11.”

Jan. 9, 2002: “We conclude that neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of Al Qaeda or Taliban prisoners.”

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Aug. 1, 2002: “Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.”

Aug. 1, 2002: “Finally, even if an interrogation method might violate Section 2340A [of Title 18 of the United States Code], necessity or self-defense could provide justifications that would eliminate any criminal liability.”

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Source: “The Torture Papers: The Road to Abu Ghraib.” edited by Karen J. Greenberg and Joshua L. Dratel

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