Challenge John Yoo's Invitation to UCI as a Chancellor's Distinguished Fellow
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January 12, 2005
Dear Chancellor Cicerone,
We are writing as UCI faculty, students, staff and community members to urge you immediately to withdraw the invitation to Professor John Yoo of UC Berkeley to come to UCI as a Chancellor's Distinguished Fellow on Feb. 7. Instead, we ask that he be invited to participate in a debate with professors and legal professionals in the Orange County area who are experts in international human rights and US criminal law so that the UCI community can obtain a genuine understanding of the controversies and criminal actions which have been directly tied to Professor Yoo's work as Deputy Assistant Attorney General.
We would like to state at the outset that we are fully aware of and support the commitment to free speech by UCI and all universities. Moreover, we do not object to his coming to speak at the University based on the invitation of a department or campus organization. However, we believe that Professor Yoo's actions as a Deputy Assistant Attorney General went beyond the exercise of free speech to include playing a crucial role in the drafting of government policies which have resulted in the commission of war crimes and other violations of American and international law; actions which in turn have resulted in great damage to the standing of the United States of America across the world. As such it is inappropriate and indeed irresponsible for the University to invite him to speak under such prestigious auspices as the Distinguished Fellows series.
As you are surely aware, in his capacity as Deputy Assistant Attorney General Professor Yoo was one the primary authorsвand by many reports, the primary drafterвof a memo submitted by White House Council Alberto Gonzalez to President Bush that was clearly intended to absolve the President and his subordinates of legal and even criminal responsibility for sanctioning or engaging practices that are illegal under international and US Federal laws. In fact, the "formal legal opinion" co-authored by Yoo was cited by White House Counsel Alberto Gonzales in what has become known as the infamous "torture memo" of Jan. 25, 2002. This memo was used by President Bush to "set aside" international and American laws, and the regulations of the US Army Field Manual 27-10 in dealing with persons detained as a result of the war on terror and the US invasions of Afghanistan and Iraq. Yoo is thus directly implicated in the drafting of policies that include the illegal detention, torture, death and other mistreatment of innumerable prisoners, perhaps the majority of them civilians, in Iraq, Afghanistan and US and in allied-run detention facilities across the globe.
As reported in the Dec. 27/Jan. 3 issue of Newsweek and other media as well, "Among those at that first White House meeting [regarding new interrogation methods] was Justice Department lawyer John Yoo, who sat on a couch along the wall. And partly out of the discussions in Gonzales's office came the most notorious legal document to emerge from last spring's Abu Ghraib interrogation scandal. This was an Aug. 1, 2002, memoвdrafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzalesвwhich provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was 'specifically intended' constituted torture. Mere 'cruel, inhuman or degrading' treatment did not qualify."
The Red Cross, however, begs to differ. In an unprecedented move, the ICRC has gone public with some of what it has observed in Guantanamo Bay, describing the interrogation techniques and mistreatment of prisoners there as "tantamount to torture." In fact, they are torture as defined by the Fourth Geneva Conventions, the Hague Conventions, and US Federal criminal statutes.
Professor Yoo certainly should have known this. His original memo to the White House, made available through a Freedom of Information Act request and now online at http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf, clearly demonstrates that he was fully versed in the relevant international and US Federal criminal statutes, and that he, along with his colleagues, attempted to establish a new interpretation of these laws that would provide the legal cover for senior policy-makers, including the President, to be immune or at least unprosecutable for war crimes if the new methods were made public. The fact that Yoo engaged in such a circuitous legal exercise demonstrates that he and the Bush Administration were clearly aware that what they were sanctioning would be regarded as torture and therefore a war crimeвand when done to civilians (and remember, upwards of 90\% of detainees in Abu Ghraib have been admitted by US military personnel to have been detained for no militarily relevant reason) quite possibly crimes against humanity as well.
Professor Yoo has been strongly criticized by leading international legal and constitutional scholars. As important, senior politicians have roundly condemned the memo and its impact. For example, in response to his efforts, Senator Feinstein has argued that Yoo's analysis appears "to be an effort to redefine torture and narrow prohibitions against it." Republican Senator Lindsey Graham, a military lawyer in the Air Force Reserve, went even further in describing the impact of the memo Yoo authored, arguing at the confirmation hearing for Alberto Gonzalez that "We have lost our wayв We lost the moral high ground."
Yet Professor Yoo has expressed no discomfort with his actions as a Justice Department official; instead in his public statements he has presented himself as someone who "can explain why the administration decided that aggressive measures, though sometimes unpopular, are necessary to protect America from another terrorist attack." What he refuses to acknoweldge, or even consider is that the aggressive measures he helped justify led directly to the commission of war crimes. Certainly, if he were a lawyer for the regimes of Saddam Hussein or Slobodan Milosevic and drew up a similar memoвparticularly one that authorized the mistreatment of US personnelвhe would (at the very least) be questioned by prosecutors in the United States and/or the International Court of Justice.
Professor Yoo has variously tried to distance himself from the memo, and when that didn't work, has tried to mislead the public about the memo's intention and impact on US policy. Specifically, Yoo is clearly misleading when he argues that "the press has consistently misrepresented Gonzales' views and latched onto a sexy sound bite used out of context. When Gonzales said in the memo that this new war made some provisions of the Geneva Conventions 'quaint,' he referred to the requirement that POWs be given commissary privileges, monthly pay, athletic uniforms and scientific instruments" (see John Yoo, "Commentary: Behind the 'torture memos'," at http://www.berkeley.edu/news/media/releases/2005/01/05_johnyoo.shtml). But the press across the world has interpreted the word "quaint" in the same manner; this is because that is clearly the intention of the language. Almost every international lawyer and human rights expert world wide who has examined the memo has reached the same conclusion.
Yoo (perhaps unwittingly) acknowledges this reality when he justifies the "new interrogation techniques" that "rendered obsolete Geneva's strict limitations on questioning of enemy prisoners" with the discredited claim that "the United States needed to be able to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians. Information remains the primary weapon to prevent a future Al-Qaida attack on the United States." This argumentвthat torture leads to the quick extraction of accurate and operationally useful intelligenceвhas been refuted by law enforcement and military officials across the board. The fact that Yoo continues to espouse it demonstrates that he is either utterly uninformed about the efficacy of various methods of interrogation, or has willfully ignored this reality to justify practices that are morally abhorrent and patently illegal under US Federal and international law.
Indeed, by Professor Yoo's logic all a person has to do as be accusedвactually, just assumedвto be a member or sympathizer of al-Qaeda or the Iraqi insurgency without any proof, and he or she forfeits their human rights and rights as citizens of countries that might well be signatories to the Geneva Conventions. What's more, Yoo contends falsely that "the military justice system offers protectionsв There is a system, it's just different" in how it treats detainees such as those in Guantanamo. No less than the Supreme Court held in a June 28, 2004 ruling (which the press described as a "major blow" and "setback" to the Bush Administration policy on terrorism) that the system in place at Guantanamo Bay was inadequate to protest the rights of detainees, and that US courts must "have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad." Similarly, if in Professor Yoo's opinion enemy combatants being held in detention at Guantanamo Bay are there not as punishment but to keep them out of action "until the end of the war," this view is in fact contradicted by the revelations that the US is considering holding combatants for the remainder of their lives.
Most important, Professor Yoo claims that "ultimately, the administrationвs policy is consistent with the law." But this too is an extremely misleading statement; the actions would be "consistent with the law" only because the memo specifically argues that the Constitution allows the President to do whatever he wants as long as he justifies it by military necessity. And while Professor Yoo claims that the intent of his and similar memos were not to sanction torture it is very hard to believe that the Defense Department, the Justice Department, and the White House counselвs office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the presidentвs alleged authority to "set aside" the laws against torture, and yet never had the intention of engaging in torture and similar abuses.
Professor Yoo has justified his memo by arguing that critics "don't show an understanding of the job of a lawyer." But it is Professor Yoo who has sullied the legal profession by his participation in the drafting of policies to sanction torture and other human rights abuses, no less than the doctors who the Los Angeles Times reported have participated in the torture system at Guantanamo Bay have sullied the medical profession. Surely UCI or its medical school would never consider inviting a doctor implicated in any way in such activities to speak as a Distinguished Fellow; there is no reason to hold a law professor to a lower standard.
Finally, in a December 31 interview with the Washington Post Professor Yoo states that the recent attempt to clarify the Bush Administration's position against the use of torture in fact "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort was to interpret the statute clearly." Professor Yoo's actions are clear; but if they distinguish him at all it is in the most negative connotation of the word. Because of this, the only appropriate response by UCI is to withdraw its invitation to speak as a Distinguished Fellow, and in so doing to stand up for justice and the rule of law in the United States and around the world. At the very least, we ask for a meeting at your earliest convenience to explain how the decision to bring him as a fellow was made, who sought it, how it was awarded, and what rationale was given that he came to be called a "distinguished fellow."