Center for Constitutional Rights Supports National Lawyers Guild Call for Dismissal and Prosecution of John Yoo

On April 1, a secret 81-page memo written by former Deputy Assistant Attorney General John Yoo in March 2003 was made public. In that memo, Yoo advised the Bush administration that the Department of Justice's Office of Legal Counsel would not enforce U.S. criminal laws, including federal statutes against torture, assault, maiming and stalking in the detention and interrogation of enemy combatants. The week after the publication of Yoo's memo, the National Lawyers Guild issued a press release calling for the Boalt Hall Law School at the University of California to dismiss Yoo, who is now a professor of law there. The NLG also called for the prosecution of Yoo for war crimes and for his disbarment.

Two days later, the Center for Constitutional Rights released a letter supporting the NLG's call for Yoo’s dismissal and prosecution. CCR Executive Director Vincent Warren wrote, "The 'Torture Memo' was not an abstract, academic foray. Rather, it was crafted to sidestep U.S. and international laws that make coercive interrogation and torture a crime. It was written with the knowledge that its legal conclusions were to be applied to the interrogations of hundreds of individual detainees... And it worked. It became the basis for the CIA’s use of extreme interrogation methods as well the basis for DOD interrogation policy... Yoo’s legal opinions as well as the others issued by the Office of Legal Counsel were the keystone of the torture program, and were the necessary precondition for the torture program’s creation and implementation."

The day after the NLG issued its press release, Boalt Hall Dean Christopher Edley, Jr. posted a statement on the Boalt Hall website, responding to "the New York Times (editorial April 4), the National Lawyers' Guild, and hundreds of individuals from around the world" who had criticized or questioned Yoo's continuing employment at Boalt Hall.

Dean Edley cited the University of California's Academic Personnel Manual sec. 015, which lists under "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." Edley said he was not convinced Yoo had engaged in "clear professional misconduct - that is, some breach of the professional ethics applicable to a government attorney - material to Professor Yoo's academic position." Edley was likewise not convinced "the writing of the memoranda, and [Yoo's] related conduct, violate[d] a criminal or comparable statute."

Edley felt Yoo's conduct was not "morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank, and place." Edley wrote, "Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders."

Indeed, ABC News reported last week that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. George W. Bush, the decider-in-chief, admitted, "yes, I'm aware our national security team met on this issue. And I approved."

These top U.S. officials are liable for war crimes under the U.S. War Crimes Act, and for violation of the Convention Against Torture and the Geneva Conventions, which are all part of U.S. law. They ordered the torture which was carried out by the interrogators.

But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S. laws. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to "legally" disappear political suspects to special detention camps. The United States charged that since they were lawyers, "not farmers or factory workers," they should have known their technical justifications for circumventing the Hague and Geneva Conventions were illegal.

The cases of Altstoetter and those of the Bush lawyers share common aspects. Both dealt with people detained during wartime who were not POWs; in both, it was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees; and in both, the advice was legally erroneous. More than 108 people have died in U.S. detention since 9/11, many from torture. And the Department of Justice's Office of Legal Counsel later withdrew the memoranda, an admission that the advice in them was defective.

Furthermore, the Bush lawyers have engaged in ethical violations which should result in their disbarment. As New York University School of Law Professor Stephen Gillers wrote in The Nation, H. Marshall Jarrett, counsel for the Justice Department's Office of Professional Responsibility, who is examining the legal advice these lawyers provided, "should find that this work is not 'consistent with the professional standards that apply to Department of Justice attorneys.'"

Even Dean Edley appears to recognize that the case of John Yoo is not a simple issue of academic freedom, such as "merely some professor vigorously expounding controversial and even extreme views."

As CCR President Michael Ratner wrote in the forthcoming book, The Trial of Donald Rumsfeld, "Had these various opinions been written as a law school or academic exercise, they could be merely condemned and their authors would fail their class, but they would not be held criminally accountable. But they were not an academic exercise. They were written by high-level attorneys [such as John Yoo] in a context where the opinions represented the governing law and were to be employed by the President in setting detainee policy. This was more than bad lawyering; this was aiding and abetting their clients’ violation of the law by justifying the commission of a crime using false legal rhetoric."

It is inconceivable that Attorney General Michael Mukasey, who has served as a rubber stamp for Bush's illegal policies, will bring any of these leaders or lawyers to justice. There is a chance that a future Attorney General will do so. Barack Obama has pledged to have his Justice Department and Attorney General "immediately review the information that's already there and to find out are there inquiries that need to be pursued . . . if crimes have been committed, they should be investigated . . . Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law." Congress should repeal the provision of the Military Commissions Act that would give these deciders and lawyers immunity from prosecution for torture and other mistreatment committed from September 11, 2001 to December 30, 2005.

In addition to criminal prosecutions, disbarments, and the dismissal of John Yoo from the Boalt Hall faculty, Jay Bybee, who was rewarded for his illegal advice with a federal judgeship, should be removed from the bench by impeachment.

It is time for the impunity enjoyed by the Bush administration to come to an end.

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Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Chemerinsky he had proved to be "too politically controversial." Duke Law Professor Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of "the top 20 legal thinkers in America."

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans "they need to watch what they say, watch what they do." The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it listed the names of 117 "un-American" professors, students and staff members. A few months later, a blacklisting Internet site called Campus Watch was launched. It published dossiers on scholars who criticized U.S. Middle East policy and Israel's treatment of the Palestinians. And the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the "still-vivid memories of the McCarthy era" and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that "freedom of inquiry and the open exchange of ideas are crucial to the nation's security, and that the nation's security and, ultimately, its well-being are damaged by practices that discourage or impair freedom."

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, "Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled."

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake advised the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California's three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI's November 16, 2006 press release announcing the inauguration of the new law school said, "UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities." Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, "Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client."

David Dow, an adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, "I can't imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he's been." Dow's words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky "the nicest person in legal education." Conservative law professor Douglas Kmiec wrote of Chemerinsky, "there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal."

One of the "controversial" matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, "There are more than 275 individuals on death row in California without lawyers for their post-convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court."

Drake's action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, "Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost."

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, "We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity."

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

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Civil Liberties: J. Edgar Ashcroft?

On May 30, 2002, the same day America mourned the victims of the September 11 attack and the conclusion of the Ground Zero cleanup, Attorney General John Ashcroft and FBI Director Robert Mueller III unveiled sweeping new surveillance powers for the FBI. In order to cover up its own incompetence in failing to properly analyze the data it already had before September 11, the FBI has now been given wide latitude to more effectively spy on law-abiding citizens.

Under what New York Times columnist William Safire characterized as "the new Ashcroft-Mueller diktat," the FBI will now be able to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity. The G-men and G-women can create dossiers on anyone they like, tracking the Internet sites we visit, trips we take, our political and charitable contributions, magazine subscriptions, book purchases, and meetings we attend. Anyone perceived as critical of the government is fair game for an FBI "fishing expedition." It will discredit and discourage those who seek to exercise their First Amendment right to dissent.

The relaxation of the FBI's surveillance guidelines will likely return us to the days of J. Edgar Hoover's dreaded COINTELPRO (counter-intelligence program). During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

COINTELPRO was designed, by its own terms, to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign "represented a clear threat to the established order of the U.S." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of the FBI, in 1972, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies in the '50s, '60s and early 70s. After documenting the abuses of COINTELPRO, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Those guidelines required the FBI to have a valid factual basis for opening an investigation, i.e., "information or an allegation whose responsible handling required some further scrutiny." They also mandated the investigations be "performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest." Before opening an investigation, the guidelines required that "the danger to privacy and free expression posed by an investigation" be considered.

But even with those protective guidelines, the FBI continued to spy on law-abiding people in the United States. In the 1980s, it conducted intensive surveillance of CISPES, the Committee in Solidarity With the People of El Salvador, which was formed to counter the United States government's support for the brutal Salvadoran dictatorship.

The National Lawyers Guild, formed in 1937 as an alternative to the American Bar Association which had excluded non-whites, filed a lawsuit against the FBI for unlawful surveillance of the Guild over many decades. Many thousands of pages of documents gained through discovery revealed that the FBI put agents in Guild meetings, wiretapped lawyers' offices and homes, and built dossiers on those perceived as critical of governmental policies. In 1989, the FBI settled the lawsuit, admitting it had tried to disrupt the Guild even though it had no proof the Guild was a subversive or communist organization.

An additional result of the Church Committee's investigation was the enactment of the Freedom of Information Act in 1974, in the wake of the Watergate scandal. The FOIA, one of our most significant democratic reforms, enables ordinary citizens to hold the government accountable for its activities, by obtaining public documents and records. Through FOIA requests, journalists, newspapers, historians and public watchdog groups have exposed governmental malfeasance.

Many recent revelations of official misconduct have resulted from FOIA requests. The Charlotte Observer showed that the electric utility, Duke Power Co., engaged in a creative accounting scheme to relieve it from charging lower rates to its 2 million customers in North Carolina and South Carolina. The Environmental Working Group, a Washington-based non-profit organization, published lists of recipients of billions of dollars in farm subsidies, which revealed that federal monies earmarked for small family farmers had instead lined the pockets of the huge agricultural corporations. And USA Today publicized widespread misconduct by higher-ups in the National Guard, including inflation of troop strength, misuse of taxpayer funds, sexual harassment and the theft of life-insurance payments that should have gone to widows and children of guardsmen.

In fact, as the result of three lawsuits brought under the FOIA, and a 17-year legal battle, the San Francisco Chronicle has just obtained thousands of pages of previously secret FBI records detailing surveillance of the University of California. According to those documents, the FBI unlawfully colluded with the head of the CIA to harass faculty, students and members of the Board of Regents. Several federal judges found the FBI had engaged in the unlawful investigation of student protestors, interfered with academic freedom and intruded into internal university affairs. J. Edgar Hoover ordered his agents to turn up derogatory information on UC's faculty members and top administrators. A 60-page report resulted, which said that 72 students, faculty members and employees were listed in the FBI's "Security Index," a secret list of people considered by the FBI as potential threats to national security; they would be detained with no warrants during a crisis.

The Freedom of Information Act should provide a vehicle to determine whether the FBI abuses its new powers by violating civil liberties. But in the post- traumatic stress following September 11, Ashcroft directed his deputies not to honor FOIA requests, effectively preempting the ability of the public to hold the FBI accountable for its actions.

Ashcroft and Mueller justify the new guidelines as a way to prevent additional terrorist attacks like those of September 11. The guidelines themselves, however, belie that claim. All of the changes relate to the FBI's domestic guidelines, not the international terrorism guidelines under which Osama bin Laden and Al Qaeda are investigated. The FBI is subject to two sets of guidelines. The distinction between them has nothing to do with where the investigation is conducted; both relate to investigations in the United States. The difference is in the nature of the organization being investigated. The foreign guidelines govern investigations inside the United States of foreign powers and international terrorism organizations such as Al Qaeda, which carry out activities in the U.S. The domestic guidelines govern investigations of organized crime and "terrorist" groups that operate and originate in the U.S.

Section 802 of the USA PATRIOT Act, which was rammed through Congress shortly after September 11, creates a new crime of "domestic terrorism." This section could target civil disobedience by animal rights activists who raid mink farms and set the animals free. Congressman Scott McInnis (R-Co), who convened congressional hearings on domestic "terrorist" organizations, labeled Earth Liberation Front, which was responsible for major property damage in Colorado, as a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: "I propose that we use the model that has worked so well in Afghanistan … Give them no rest and no quarter." These politicians draw no distinction between human rights and property interests.

The same day the new FBI guidelines were revealed, Mueller outlined the "FBI Priorities" as follows: protect the U.S. from terrorist attack; protect the U.S. against foreign intelligence operations and espionage; protect the U.S. against cyber-based attacks and high-technology crimes; combat public corruption at all levels; protect civil rights; combat transnational and national criminal enterprises; combat major white-collar crime; combat significant violent crime; support federal, state, local and international partners; and upgrade technology to successfully perform the FBI's mission. But although none of these priorities identify domestic activities as threats to America, the expanded powers of the FBI target domestic, not international, "terrorism."

We cannot have confidence that relaxing limitations on the FBI's spying activities will make us any safer, or make the FBI more competent. Giving the FBI more power would not have prevented its specious prosecution of nuclear scientist Wen Ho Lee, its failure to catch spy Robert Philip Hansen, or its failure to "connect the dots" leading to September 11. It will only succeed in making it easier for the FBI to monitor the activities of law-abiding people. The new FBI will pose a threat, not to the terrorists, but to the civil liberties of law-abiding people.

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