In his slate-blue suit and Republican-red tie, John Yoo stands out as discordantly formal among the denim- and turtleneck-clad faculty at Boalt Hall School of Law. Never mind how his politics play in what he derides as “the People’s Republic of Berkeley.”
FOR THE RECORD:
John Yoo: An article in Section A on March 29 about legal guidance written by UC Berkeley law professor John C. Yoo and Circuit Judge Jay S. Bybee when they were Justice Department lawyers in the George W. Bush administration said their advice “redefined torture as pain resulting in organ failure or death.” Their guidance defined torture as pain that “must rise to the level of death, organ failure,” but did not restrict it to acts that would actually result in organ failure or death. —
The former Bush administration lawyer who drafted what his critics call the “torture memos” is reviled by many in this liberal East Bay academic enclave, a feeling that is mutual though not, Yoo insists, wholly unpleasant.
“I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism,” Yoo observes, sipping iced tea in the faculty club lounge, a wan smile registering the discomfort of colleagues walking by en route to the bar.
He sees his neighbors as the human figures of “a natural history museum of the 1960s,” the Telegraph Avenue tableau of a graying, long-haired, pot-smoking counterculture stuck in the ideology’s half-century-old heyday.
“It’s like looking at the panoramic displays of troglodytes sitting around the campfire with their clubs. Here, it’s tie-dye and marijuana. It’s just like the 1960s, with the Vietnam War still to protest.”
Yoo, 42, is unrepentant about his role in providing the CIA and other agencies with legal cover to conduct harsh interrogation of terror suspects with techniques such as water-boarding, which simulates drowning. In legal guidance he provided to the past administration, Yoo redefined torture as pain resulting in organ failure or death.
Calls for his ouster haven’t subsided despite a Department of Justice decision in February that neither Yoo nor his former boss in the Bush administration Office of Legal Counsel, federal Circuit Judge Jay S. Bybee, will face prosecution for advice to the administration that showed “poor judgment” but not willful breaking of the law.
Liberal civil rights advocates like the Center for Constitutional Rights, the American Civil Liberties Union and the Alliance for Justice have demanded a full, independent investigation of Yoo and Bybee for their roles in the sanctioning of interrogation tactics the Obama administration has outlawed as violations of international treaties and U.S. moral values.
“I feel vindicated,” Yoo said of the Justice Department internal affairs report that concluded a five-year investigation and dropped an earlier recommendation that he and Bybee be subjected to disciplinary action by their respective state bar associations.
Yoo sees the investigation as political score-settling by those who disagreed with the tough war-on-terror policies of the Bush White House.
“Someday the Republicans will be in charge again, and would you want to see them conducting ethics and criminal investigations into the Obama administration?” he says. “I wouldn’t want to see that. So I hope that this closes this chapter in trying to use criminal and ethical charges to carry out political fights against the policy of a past administration.”
He sees the persistent protests of his fitness to teach law as the campaign of a radical community intolerant of views that don’t accord with their own.
After disclosure of the memos last year, Christopher Edley, the law school’s dean, deflected demands that he fire Yoo, saying that he and other university administrators would wait for the Justice Department’s Office of Professional Responsibilities report and then “review it carefully and consider whether there are implications for this campus.”
Edley has said little since the Feb. 19 report that both detailed Yoo’s and Bybee’s misdeeds and eliminated an earlier finding that the lawyers had engaged in professional misconduct.
“I hope these new developments will end the arguments about faculty sanctions, but we should and will continue to argue about what is right or wrong, legal or illegal, in combating terrorism. That’s why we are here,” Edley said in a statement after the report was released.
Though Berkeley’s faculty remains predominantly liberal, it has become more ideologically diverse over the years as the best minds, regardless of political bent, have been picked to build the nation’s well-respected computer science program, engineering school and law school, which is considered one of the best in the country. Many of Yoo’s faculty colleagues have spoken out on the need for representing a wide range of viewpoints. Among those deflecting calls for Yoo’s dismissal was fellow law professor Goodwin Liu, whom Obama has nominated for the U.S. 9th Circuit Court of Appeals.
Students also represent a broad array of political outlooks, although critics of Yoo’s work for the Bush administration have dominated the debate over his tenured position.
“We don’t want someone like that teaching us about the law and how to apply the law. It’s a humiliation for the law school and a huge disservice to the law students,” said Liz Jackson, co-chair of the Boalt Hall chapter of the National Lawyers Guild. “We are a very prestigious place to be, and he gets a lot of legitimacy from being here and having a respected platform from which to speak.”
Yoo carries on cheerfully with his constitutional law class and a seminar on which he has bestowed the assignment to write a manual for delegates to a state constitutional convention, should one be called. He points out that 180 students enrolled in his civil procedure class last semester, as evidence that he is hardly being shunned by the students. Critics contend, though, that only two professors offered the course and that it was the last opportunity for this year’s graduates to take the class.
Yoo seems more amused than uncomfortable as the center of controversy.
He speculates that much of the student body leans left as well, having “self-selected” UC Berkeley for its reputation as a liberal bastion.
He doesn’t detect open resistance to his position, the occasional protest or invasion of his classroom notwithstanding.
“Maybe they have the idea that it would be interesting to see what a conservative professor is like,” he says of the law school students who take his classes. “Then they can always say, ‘I’ve met a conservative.’ They can tell their family and friends.”
He doesn’t seek to change his students’ thinking, he says.
“I don’t really care whether they agree with me or not. I don’t care whether they follow me or not. Our mission is to make them better thinkers,” he says. “I would be just as pleased if one of my students became a Democratic [appointed] Supreme Court justice.”
Despite his rocky passage from government back to Berkeley, where he has taught off and on since 1993, Yoo doesn’t rule out a return to public service should Republican conservatives regain the White House.
Though he says he much prefers the freedom and intellectual stimulation of a college campus, he says he believes anyone called to serve the country should do so.
“My parents were immigrants. I could have been a convenience store manager,” the South Korean-born professor says of the opportunities afforded by his adopted country. “I feel very fortunate to have a job like this one.”
In addition to his legal work for the Bush administration, Yoo served as general counsel for the Senate Judiciary Committee and was a law clerk for U.S. Supreme Court Justice Clarence Thomas.
Having experience in all three branches of government has given him a solid background from which to draw in his teachings, he said.
“Besides, my wife has forbidden us from moving. She likes it here,” he says of Elsa Arnett, a writer he met at Harvard University while studying for his undergraduate degree in American history.
She is the daughter of Pulitzer Prize-winning former foreign correspondent Peter Arnett, whose political views make for spirited family get-togethers, Yoo says of his opinionated father-in-law.
Yoo seems at peace living in Berkeley, even though he disparages the community as an enclave of self-satisfied extremists intolerant of those who think outside the liberal mind-set.
“But that doesn’t mean I don’t like it here,” he says.