No Comment — March 21, 2009, 9:50 am

The Woes of a Torture Lawyer

The San Jose Mercury-News carries a story about the possibility that John Yoo may be disciplined or fired by the University of California at Berkeley:

UC Berkeley leaders are wrestling with that decision as a federal investigation into John Yoo’s legal advice to the Bush administration apparently winds down.

The dilemma is rare. At risk are the tenets of academic freedom that have long allowed college faculty members to speak their minds in the name of scholarship. Yoo’s case revolves around his advice on dealing with accused terrorists, including a notorious memo that provides legal justification for torture. Yoo, who is temporarily teaching at Orange County’s Chapman University, has long attracted protests on his home campus, but some surprising allies have come to his defense.

“I think this is simply a left-wing version of McCarthyism,” said Alan Dershowitz, a Harvard Law School professor who disagrees strongly with Yoo’s views on torture. “He should be judged solely on the merits of his academics.”

But Berkeley administrators and faculty leaders said they would be concerned about Yoo teaching law students if he were found to have violated ethical or legal standards. Critics have called Yoo a yes-man for President George W. Bush, essentially telling him what he wanted to hear.

The author of the story was taken for a ride by Alan Dershowitz. He writes, no doubt drawing on a statement from Dershowitz, that the Harvard professor “disagrees strongly with Yoo’s views on torture.” But those who have closely followed the torture debate generally place Alan Dershowitz as the single figure closest to John Yoo in the legal academy–hardly one of his critics.

Like most defenders of torture techniques, Dershowitz usually begins the discussion by saying that he is “personally opposed” to torture. He then quickly turns to defining torture down and providing legal justifications for it. Here for instance is an interview Dershowitz gave to Salon.com in which he explains his torture preferences:

Q: Any reason why you use needles under the fingernails as your torture method of choice?

A: A reviewer criticized me for that. I purposely wanted to do that. I don’t want to be vague. I wanted to come up with a tactic that can’t possibly cause permanent physical harm but is excruciatingly painful. I agree with the reviewer; he’s right when he said, “different strokes for different folks.” For different people, different kinds of nonlethal torture might be more effective. Obviously, to the experts, having seen the movie “Marathon Man,” drilling the tooth might be better than some. But the point I wanted to make is that torture is not being used as a way of producing death. It’s been used as a way of simply causing excruciating pain.

Q: Aren’t there other forms of torture that would be less painful than that, that you might have considered?

A: But I want more painful. I want maximal pain, minimum lethality. You don’t want it to be permanent, you don’t want someone to be walking with a limp, but you want to cause the most excruciating, intense, immediate pain. Now, I didn’t want to write about testicles, but that’s what a lot of people use. I also wanted to be explicit because I didn’t want to be squeamish about it. People have asked me whether I would do the torturing and my answer is, yes, I would if I thought it could save a city from being blown up.

But aside from this, Dershowitz’s comment that criticism of Yoo is a form of “leftwing McCarthyism” is absurd. Yoo is not being taken to task for his views or even his academic writings. In fact, it’s clear that Yoo was helped on his path to a tenured post at Berkeley by his movement conservative perspective—the faculty and dean were eager to have a prominent writer from a politically influential legal movement on board. Yoo’s problem comes from what he did as a government lawyer, in authoring a series of opinions which were essential in implementing torture policy. More than a hundred individuals died in captivity and in more than two dozen cases, the deaths have been directly connected to the use of torture techniques that John Yoo approved. His work had lethal consequences.

Aside from the ethics and criminal law problems, Yoo’s work is troubling just from the perspective of professional competence. It did not meet basic standards and was in fact rejected by the Bush Administration itself. Moreover, Yoo’s self-defense—that he was asked to render his best professional assessment on an abstract legal issue—appears to be false; the forthcoming report of the Justice Department’s Office of Professional Responsibility, which as I’ve written elsewhere, reportedly recommends that Yoo be referred for bar disciplinary action, will furnish more guidance on this.

I marvel over Dershowitz’s new-found perspective on academic freedom. Can this be the same Alan Dershowitz who launched a massive and successful campaign against Norman Finkelstein to deny him tenure at DePaul University because of his criticism of the Israeli government and of Alan Dershowitz himself? In the Dershowitz perspective, academic freedom apparently shields those whose viewpoints are very close to his own, but not his critics.

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