Yesterday the Senate Judiciary Committee held a hearing on Patrick Leahy’s call for a truth commission to investigate the crimes of the Bush Administration.  Obviously the events of the past couple days, with the release of OLC memos that really transformed the concept of democracy in the Bush era, is revitalizing this debate.

Justice Department officials said they might soon release additional opinions on those subjects. But the disclosure of the nine formerly secret documents fueled calls by lawmakers for an independent commission to investigate and make public what the Bush administration did in the global campaign against terrorism.

The chairman of the House Judiciary Committee, Representative John Conyers Jr., Democrat of Michigan, said the revelations, together with the release of new information about the Central Intelligence Agency’s destruction of 92 interrogation videotapes, had underscored the need for a commission that would have the power to subpoena documents and testimony.

The OLC memos are still extraordinary, so horrifying in the picture they paint of executive power that the head of the OLC, Steven Bradbury, felt the need to disavow them near the end of the Bush regime.  It’s likely that he did so to take the heat off of himself.  But there ought to be no get-out-of-jail-free card for the actions taken as the result of these memos.  Glenn Greenwald looks at one of the documents.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments.  It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens.  And it wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls “domestic military operations” was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying — in secret and with no oversight — on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

As Harper’s Scott Horton says, “We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship.”   More on the memos from Jack Balkin and Anonymous Liberal.

Yoo, who is hiding out in Orange County at Chapman University, admitted in an interview to the OC Register only that his memos “lacked a certain polish,” in a profile more concerned with how he’s enjoying the beaches and Vietnamese food of Southern California rather than the “hippies, protesters and left-wing activists” of Berkeley.  Somehow, he’s still teaching law.  Jay Bybee, the other major player in the composition of these memos, is a 9th Circuit Appeals Judge in San Francisco.  Bruce Ackerman recommends impeachment.

Despite the calls of apologists to the contrary, we have to have a reckoning on this.  The previous President, aided by his allies, asserted broad executive powers far outside Constitutional strictures, and the results were illegal wiretapping, torture, extraordinary rendition, indefinite detention, and a series of other crimes against the state and violations practically every amendment in the Bill of Rights as well as international law.  

But one member of the Judiciary Committee wasn’t at the truth commission hearing yesterday – Dianne Feinstein.  Through a spokesman, she sidestepped whether or not she supports a commission, saying she “hasn’t seen a proposal.”  But she is instituting a competing investigation, from her perch at the Senate Intelligence Committee, that is bound to be a whitewash:

The inquiry is aimed at uncovering new information on the origins of the programs as well as scrutinizing how they were executed — including the conditions at clandestine CIA prison sites and the interrogation regimens used to break Al Qaeda suspects, according to Senate aides familiar with the investigation plans.

Officials said the inquiry was not designed to determine whether CIA officials broke laws. “The purpose here is to do fact-finding in order to learn lessons from the programs and see if there are recommendations to be made for detention and interrogations in the future,” said a senior Senate aide, who like others described the plan on condition of anonymity because it had not been made public […]

The senior aide said that the committee had no short-term plans to hold public hearings, and that it was not clear whether the panel would release its final report to the public […]

Senate aides declined to say whether the committee would seek new testimony from former CIA Director George J. Tenet or other former top officials who were involved in the creation and management of the programs.

The Senate investigation will examine whether the detention and interrogation operations were carried out in ways that were consistent with the authorities and instructions issued in the aftermath of the Sept. 11 attacks, officials said.

The panel will also look at whether lawmakers were kept fully informed. Sen. Dianne Feinstein (D-Calif.), the chairwoman of the committee, and others have said that the Bush administration improperly withheld information from Congress on the CIA’s operations.

This is basically a turf war.  Feinstein wants control of the investigation process in her committee, over Patrick Leahy.  And she wants the hearings to be private as well as the final report.  Emptywheel writes:

Pat Leahy will have an investigation regardless of what DiFi says–and he’s going to start it now. So DiFi issues a vaguely formulated leak saying that she’s going to cover the CIA’s role in torture. And, voila! Now the CIA and DiFi can say try to circumscribe Leahy’s investigation. And of course, by doing an investigation that starts with the premise that it is “not designed to determine whether CIA officials broke laws,” even while admitting that CIA officers may have gone beyond the “instructions issued in the aftermath of the Sept. 11 attacks,” it ensures no accountability even for those who went beyond Cheney’s torture regime. And, finally, absolutely no current plans to make public the results, either through public hearings or by releaing a report.

Call DiFi at (202) 224-3841. Thank her for recognizing the importance of understanding the mistakes we made in the past. Remind her that even Pat Roberts’ investigation into CIA Iraq intelligence was released publicly. Demand that she meet at least the level of transparency adopted by her Republican predecessors as SSCI Chair.

Agreed.  This is too important for it to be done in the secret bowels of official Washington as a “fact-finding mission” yielding a white paper that will wind up collecting dust on a shelf.  Feinstein is trying to let criminals off the hook, plain and simple.  History tells us that the inevitable return of criminals like this will only be emboldened to go further as a result.

Leaving aside the fact that the only place Bush war criminal John Yoo should be teaching is Ft. Leavenworth, it has particularly irked me (and others) that he’s teaching at UC-Berkeley.  Besides the fact that I attended Berkeley for my public policy degree, the fact that a war criminal was still receiving a state check quite bothered me.

Well, he’s taking a break from the state paycheck to move on up to Chapman Law School:

In Berkeley, city leaders branded him a war criminal and human rights activists put up a billboard to denounce him. But in suburban Orange County, Professor John Yoo — the primary architect of the Bush administration’s policy on harsh interrogation techniques that many consider torture — has found relatively calmer waters.

Yoo is a visiting professor at Chapman University School of Law in Orange, on leave from his tenured post at UC Berkeley to teach foreign relations law.(LAT 2/11/09)

Look, I’m all for academic freedom, but academic freedom has nothing to do with John Yoo’s crimes.  John Yoo is a man that found it acceptable to write legal opinions that provided a patina of legitimacy for waterboarding and other methods of torture. But, as Americans, there is no place for torture, and Yoo knew that.  Yoo knew and understood the spirit of the Geneva Convention, yet ignored it.

With all the talk of truth commissions concerning the Bush administration’s crimes, I am reminded of the truth commissions in South Africa.  Where an attorney stood up and admit what they did. Yet like those South African apartheid era officials, the Bush administration continues to point blame and excuse themselves.  Ever the victims, never the perpetrators.

I can only hope that John Yoo chooses to forever leave Berkeley, and is someday arrested and convicted of his crimes. Until then, I’ll just have to comfort myself knowing that he left one of the finest legal institutions, for, well, Clarence Thomas’ Cast-off U.

Christopher Edley, Dean of the Boalt School of Law at Cal Berkeley has taken to the internets under the headline: The Torture Memos and Academic Freedom where explains that he can’t fire John Yoo.

UPDATE (by Dave): Let me again say that John Yoo is making a public appearance on the 14th of April, next Monday, at the Bancroft Hotel in Berkeley, and you should go and tell him how you feel, because this guy shouldn’t be allowed to walk the earth without hearing from citizens disgusted with how he debased this country.  

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the “General University Policy Regarding Academic Appointees,” adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct-that is, some breach of the professional ethics applicable to a government attorney-material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

I may not be a Law School Dean, but I do have google and read the Academic Personal Manual (PDF). If you scroll up from the section Edley cites, you’ll read, “the following general principle is intended to govern all instances of its application:”

University discipline under this Code may be imposed on a faculty member only for conduct which is not justified by the ethical principles and which significantly impairs the University’s central functions as set forth in the Preamble. To the extent that violations of University policies mentioned in the examples below are not also inconsistent with the ethical principles, these policy violations may not be independent grounds for imposing discipline as defined herein. The Types of Unacceptable Conduct listed below in Sections A through E are examples of types of conduct which meet the preceding standards and hence are presumptively subject to University discipline. Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action if they also meet the preceding standards. [emphasis mine]

So Dean Edley has a lot more latitude then he claims. A kossak has a response letter:

   Dear Dean Edley:

   I fear I must disagree with your analysis that John Yoo’s conduct does not justify his dismissal from the law school.  While freedom of thought and economic security are a bedrock of academic freedom, nearly all tenured positions are held subject to certain conditions.  Indeed, the 1940 Statement of the AUP (with 1970 comments) recognizes that moral turpitude is a just reason for termination.

   Moral turpitude is a legal concept in the United States that refers to “conduct that is considered contrary to community standards of justice, honesty, or good morals”. Moral turpitude may be fraudulent behavior, or other actions including, but not limited to:

   • An attempt to commit a crime deemed to involve moral turpitude

   • Aiding and abetting in the commission of a crime deemed to involve moral turpitude

   • Being an accessory (before or after the fact) in the commission of a crime deemed to involve moral turpitude

   • Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude where the attempted crime would not itself constitute moral turpitude.

   Mr. Yoo’s legal memoranda, prepared as they were to aid, abet and justify the Bush Administration’s criminal and unlawful use of torture against detainees from Iraq and Afghanistan, in violation of U.S. statutes and the Geneva Conventions, fall precisely within the ambit of these definitions.  Further, Mr. Yoo’s specious theories of the Unitary Executive are so removed from rational thought as to be either morally bankrupt or indicators of a diseased mind. Yoo’s Unitary Executive claims the King can do no Wrong.

   When Charles I made the same claim, Parliament separated his head from his shoulders in 1649.  The Framers were well aware of the legal history of England, as it was the progenitor of our system of laws.  Having just deposed a monarch, they were surely in no hurry to enthrone another.  I am told Yoo is a clever man.  If that is true, it is prima facie evidence his unitary theory is fraudulent, as no one with even a nodding acquaintance with Anglo-American history would proffer such ridiculous assertions.

   Yoo should be fired forthwith. He should not be permitted to further pollute future generations of lawyers.  His continued employment at Berkeley is a stain upon a great institution.

As I wrote earlier today, the revelation that top-level officials in the White House actually debated what interrogation techniques to use on high-value targets, including torture, just sickens the stomach.  In this context, it’s clear that torture lawyer John Yoo was writing a document that was already written – a justification for the most heinous of crimes.  That the Administration had to dip all the way down into the mid-level of the Justice Department, bypassing even the Attorney General, shows how difficult it was to find a cad willing to cover up their misdeeds, someone willing to disgrace the office and disgrace himself.  

Yoo was a pawn bit none of this absolves him from blame.  House Judiciary Committee Chairman John Conyers would like a word with him.  Attorneys for Ali al-Marri, a so-called “enemy combatant” at Guantanamo, are using the memo to make the legal argument that his detention was actually illegal, since the memo was eventually withdrawn after al-Marri was captured and detained based on its legal theories.  The “footnote” contained in the memo, that a previous memo waived the Fourth Amendment with respect to “domestic military operations,” is causing Administration officials all sorts of grief on Capitol Hill.  (That worm Mukasey, by the way, wouldn’t say whether or not the Fourth Amendment waiver memo has been withdrawn.)

And now the National Lawyers Guild has called on Yoo to be disbarred and removed from the Boalt Hall School of Law, and for the Congress to repeal that part of the Military Commissions Act which gives him essentially legal immunity for his crimes.

In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President’s detention and interrogation of enemy combatants. According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

“John Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act,” said National Lawyers Guild President Marjorie Cohn.

Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country’s premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

For those who want a “variety of views” to be expressed in the academic sphere, I think the National Lawyers Guild has a broader perspective about the First Amendment and freedom of expression.

There are things we can do at home as well.  First, Mark Ridley-Thomas’ resolution on torture must be passed, and used as a means to discover more about how medical professionals served this lawbreaking and who was involved all the way to the top of the chain of command.

As we recently commemorated the non-violent life and legacy of Dr. King, we cannot ignore the immorality of war that, he said, ravages our economy and “mutilates our conscience.”

Nowhere is that “mutilated conscience” more evident than in the alarming issue of health professionals involved in torture in the Iraq War […]

Reports from the International Red Cross, The New England Journal of Medicine, the British Medical Journal, military records, and first-person accounts, provide overwhelming evidence that military physicians and psychologists have directly participated in the development and cover-up of torture and abuse of detainees in U.S. custody.

Medical professionals are reported to have advised interrogators as to whether particular prisoners were fit enough to survive physical maltreatment, informed interrogators about prisoners’ phobias and other psychological vulnerabilities that could be exploited during questioning, failed to report incidents of alleged torture, force-fed prisoners who were on hunger strikes, and altered the death certificates of prisoners who died […]

As professional licensure and codes of ethics are regulated by states, California has the obligation to notify members of laws concerning torture that may result in their prosecution.

This week, I will put to a vote Senate Joint Resolution 19 on the floor of the Senate that states that the U.S. Department of Defense has “failed to oversee the ethical conduct of California-licensed health professionals related to torture.” […]

Torture is much more than a political issue. It is an ethical, moral and spiritual issue that has not only become a shame, but it is an evil in our midst.

Dr. King would not remain silent on an issue of such moral importance. Nor will I. Dr. King repeatedly warned us that, “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.”

And perhaps most important, on April 14 at the Bancroft Hotel, Yoo will make a public appearance in an event with Georgetown Law Professor David Cole and others.  Perhaps citizens who stand against the torture and murder of human beings in service to a failed theory of extreme executive power ought to stop by and let him know how you feel.  

April 14, Bancroft Hotel.  Be there.

UPDATE: The American Freedom Campaign has also called for the dismissal of John Yoo.

State Senator Mark Ridley-Thomas is forcing a vote on a bill that ought to be named after a certain Berkeley professor:

The California Senate is preparing to weigh in on the hot-button topic of torture, with a twist that combines elements of the Hippocratic oath and the military oath.

Under a resolution that state Sen. Mark Ridley-Thomas plans to put to a vote Thursday, California regulators would notify physicians and other health professionals that they could lose their license and be prosecuted by the state if they are involved in the torture of suspected terrorists […]

During a committee hearing in January, Ridley-Thomas said there is evidence that physicians, psychologists and nurses licensed by the state “have participated in torture or its coverup against detainees in U.S. custody.”

He cited “confirmed reports from the International Red Cross, New England Journal of Medicine, military records and first-person accounts.”

“California has the obligation, I believe, to notify its licensees of laws pertaining to torture that may result in prosecution,” Ridley-Thomas said.

The senator said physicians have reportedly advised interrogators whether prisoners were fit enough to survive “physical maltreatment, informed interrogators about prisoners’ phobias and other psychological vulnerabilities that could be exploited.”

Invoking the Hippocratic oath that physicians traditionally take, he said the state can “withdraw its consent to torture by demanding that its health professionals remember their oath to first do no harm.”

This is extremely small-bore, but if the federal government is abusing detainees, the states ought to be able to step in and inform their own residents of the Constitutional and international treaty obligations citizens are required to uphold.  

California Republicans will have a choice to make.  There is substantial evidence in the public record of health professionals aiding and abetting in the practices at Abu Ghraib and Guantanamo.  For each Yacht Party member, they must understand that their vote could either sanction these abuses, or affirmatively state that some parts of the United States still follow the rule of law.

I can only applaud Sen. Ridley-Thomas for this courageous proposal, which hopefully will spark a movement of revolt amongst state legislatures.  This Administration is lawless and reckless, and diminishing what credibility we have left globally with each passing day.  California can stand up, and steadfastly shout “We do not agree; we do not consent.”

At my home site I took a look today at John Yoo’s recently declassified memo, which is more responsible for torture and detainee abuse at Guantanamo, Abu Ghraib and throughout American prison sites abroad than practically any other document.

If you’re interested in weeping, you can read the 81-page memo yourself.

Part 1

Part 2

Yoo simply made up a new set of executive powers that trumped the Geneva Conventions, domestic statutes against torture, and virtually the whole system of the law itself.

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.

Kind of a “self-defense before the fact” belief, completely contrary to how the American legal system works […] The closed loop here is self-perpetuating.  The DoJ writes a memo saying that the President has virtually unlimited power in wartime.  The CIA and the Pentagon then takes the memo and uses it as proof of legality for their crimes.  So we have an executive branch validating the rest of the executive branch, essentially a one-branch government that writes, executes and adjudicates the law.

There is no question that John Yoo is a war criminal; he provided the legal theories that the executive branch follows to this day, even though the Defense Department vacated this particular memo in 2003.

Elsewhere in the piece I noted that Berkeley must be exceedingly proud.  Yoo is a tenured law professor who has been teaching at the University of California since leaving the Justice Department.  The UC, as we know, is a public university system paid for with 3.2% of the general fund budget.  Full professors there can earn up to $164,700 a year annually.

That comes out of my hide.  Your hide.  John Yoo is making his living based on public payments through taxes and other receipts.  And he is absolutely a war criminal.  (over)

John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture — actions which then directly lead to the systematic commission of torture — doesn’t make one a war criminal in the U.S., what does?

I believe in academic freedom and understand the slippery slope of removing a faculty member with tenure because of their political views.  In a best-case scenario The Hague would be making the decision of when John Yoo leaves his cushy law professor job by dragging him off in leg irons.  But failing that, there has to be at least some standard of competence and dignity among a public university.  The shoddy logic and faulty reasoning in this declassified memo should be a firing offense alone; and the implications of that memo should be more than enough to cement that.  Not only is John Yoo teaching your kids about the Constitution and the law, we’re all paying him to do it.  And so at the very least the UC Regents need to hear from everyone in California, expressing their disappointment that they are harboring a war criminal at their flagship school, and determining what they will seek to do about that.

UPDATE: The American Freedom Campaign has a petition you can sign to demand this abuse of executive power.  It’s astonishing that it took the ACLU to force declassification of this memo rather than oversight from the Congress or the media.  As the AFC says, “Prosecutions may be appropriate.  Impeachment should not be out of the question.  But what is needed immediately is a thorough investigation into the Bush administration’s understanding of the extent of the president’s power as commander-in-chief. “

This deserves far more than a quick hit.  Erwin Chemerinsky, the esteemed legal scholar who was unceremoniously dumped as Dean of the new UC Irvine Law School after catcalls from the conservative noise machine, has been rehired by the school.

UC Irvine Chancellor Michael V. Drake and Erwin Chemerinsky have reached an agreement that will return the liberal legal scholar to the dean’s post at the university’s new law school, the university announced this morning.

With the deal, they hope to end the controversy that erupted when Chemerinsky was dropped as the first dean of the Donald Bren School of Law.

Drake traveled over the weekend to Durham, N.C., where Chemerinsky is a professor at Duke University, and the two reached an agreement about midnight Sunday, sources told The Times.

Practically the whole faculty was going to walk out if they didn’t set this right, so it’s not surprising.  Apparently LA County Supe Mike Antonovich and OC Republicans won’t get their way on this one.

But I still think the point is valid that if Chemerinsky has to jump through this many hoops to get a UC job, why exactly is John Yoo still employed at Berkeley?